People v. Bullard ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIAN MICAH BULLARD,
Defendant and Appellant.
S239488
Fourth Appellate District, Division Two
E065918
San Bernardino County Superior Court
FVI1200894
March 23, 2020
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
PEOPLE v. BULLARD
S239488
Opinion of the Court by Kruger, J.
In this case we again consider the application of the
criminal sentencing reforms of Proposition 47, “the Safe
Neighborhoods and Schools Act,” to the offense of unlawfully
taking or driving a vehicle under Vehicle Code section 10851
(section 10851).
One provision of Proposition 47, codified as section 490.2
of the Penal Code, reduced felony offenses consisting of theft of
property worth $950 or less to misdemeanors. We have held
that this theft-reduction provision, by its terms, applies to the
subset of section 10851 convictions that are based on obtaining
a vehicle worth $950 or less by theft. (People v. Page (2017) 3
Cal. 5th 1175, 1187 (Page).) But we have also acknowledged that
section 10851’s prohibition on the unlawful taking of a vehicle
sweeps somewhat more broadly than the term “theft” is
ordinarily understood. (See Page, at p. 1182.) In particular,
while liability for theft generally requires that the defendant
have an intent to permanently deprive the owner of possession,
section 10851 draws no distinction between temporary takings
and permanent ones; it imposes liability on any person who
takes a vehicle “with intent either to permanently or temporarily
deprive” the owner of possession, “whether with or without
intent to steal the vehicle.” (§ 10851, subd. (a), italics added.)
The question before us is whether Proposition 47 now
requires courts to draw a distinction under section 10851
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Opinion of the Court by Kruger, J.
between permanent and temporary vehicle takings—granting
sentencing relief to those who take vehicles permanently but
denying relief to those who take vehicles temporarily. We
conclude the answer to this question is no: A person who has
unlawfully taken a vehicle in violation of section 10851 is not
disqualified from Proposition 47 relief because the person
cannot prove he or she intended to keep the vehicle away from
the owner indefinitely.
I.
In 2012, defendant Julian Micah Bullard entered a
negotiated plea of guilty to a felony charge of violating section
10851, subdivision (a). According to police reports, which the
parties stipulated provided a factual basis for the plea, the facts
of the offense were these:
After staying overnight at his girlfriend’s home, defendant
took her car keys from her purse and drove away in her car
without her permission. The car was reported stolen. That
night, defendant talked to his girlfriend and agreed to return
the car. He drove it to his girlfriend’s workplace, where he was
arrested. Defendant admitted to police he took the car without
permission, saying he had no reason for doing so other than that
he did not want to walk and his “ ‘[h]ead was messed up.’ ” He
explained that, having nowhere to go, he drove the car around
until it ran out of gas, then borrowed money for fuel, and
eventually drove the car to his girlfriend’s workplace. The
vehicle, a 1993 Lincoln Town Car, was valued at approximately
$500.
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
On his guilty plea to one felony count of violating section
10851, defendant was sentenced under Penal Code section 1170,
subdivision (h), to 16 months in county jail.1
In 2014, voters passed Proposition 47. As relevant here,
Proposition 47 added section 490.2 to the Penal Code, which
provides (with exceptions inapplicable here): “Notwithstanding
[Penal Code] Section 487 or any other provision of law defining
grand theft, obtaining any property by theft where the value of
the money, labor, real or personal property taken does not
exceed nine hundred fifty dollars ($950) shall be considered
petty theft and shall be punished as a misdemeanor . . . .” (Pen.
Code, § 490.2, subd. (a).) A separate provision added by
Proposition 47 established a procedure for redesignating a past
felony offense as a misdemeanor if the offender has already
completed his or her sentence and if he or she “would have been
guilty of a misdemeanor under [Proposition 47] had this act been
in effect at the time of the offense . . . .” (Pen. Code, § 1170.18,
subd. (f).)
After Proposition 47 took effect, defendant petitioned to
have his unlawful driving or taking conviction—for which he
had by then completed the jail term—redesignated as a
misdemeanor. (Pen. Code, § 1170.18, subd. (f).) The trial court
denied the petition on the ground that a conviction for unlawful
driving or taking under section 10851 “ ‘is not [a]ffected by
Prop. 47.’ ” The Court of Appeal affirmed. (People v. Bullard
1
Section 10851, subdivision (a), is an alternative felony-
misdemeanor offense (also known as a “wobbler”), punishable by
either a misdemeanor sentence of up to one year in county jail
or a felony sentence calculated under Penal Code section 1170,
subdivision (h). (§ 10851, subd. (a); see People v. Lara (2019) 6
Cal. 5th 1128, 1131 (Lara).)
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Opinion of the Court by Kruger, J.
(Feb. 12, 2016, E065918 [nonpub. opn.].) The majority
concluded that section 10851 convictions are categorically
ineligible for Proposition 47 resentencing because the statute
can be violated by driving a stolen car after the theft was
complete (posttheft driving) or by taking a vehicle without the
intent to permanently deprive the owner of possession, “as
occurred in this case,” neither of which constitutes theft of the
vehicle. Justice Miller filed a concurring and dissenting opinion.
He took the view that section 10851 convictions based on theft
of the vehicle are eligible for resentencing, but he concurred in
the result because defendant failed to show either that he
intended to permanently deprive the owner of the vehicle or that
the vehicle was valued at less than $950.
We granted defendant’s petition for review but deferred
briefing pending the decision in Page. In Page, we held that the
theft-reduction provision does apply to those section 10851
convictions based on taking a vehicle with intent to permanently
deprive the owner of possession (again, provided the vehicle is
worth $950 or less), though not to the nontheft offense of driving
a stolen car after the theft is complete. (Page, supra, 3 Cal.5th
at p. 1187.) We reserved the question whether “equal protection
or the avoidance of absurd consequences” requires extending
misdemeanor treatment to a person “convicted for taking a
vehicle without the intent to permanently deprive the owner of
possession.” (Id. at p. 1188, fn. 5.)2
2
We again reserved this question in Lara, supra, 6 Cal. 5th
1128. In Lara, we held that a person convicted and sentenced
after Proposition 47’s effective date for a qualifying offense
committed before the initiative measure passed was entitled to
application of Penal Code section 490.2 at trial and sentencing.
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Opinion of the Court by Kruger, J.
After Page became final, we ordered briefing in this case
to consider whether the retroactive theft-reduction provision of
Proposition 47 applies to section 10851 convictions based on
taking a vehicle, in the absence of proof that the defendant
intended to permanently deprive the owner of possession.
II.
As we explained in Page, the question arises because of the
unusual configuration of the section 10851 offense. That
provision punishes any person “who drives or takes a vehicle not
his or her own, without the consent of the owner thereof, and
with intent either to permanently or temporarily deprive the
owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle . . . .”
(§ 10851, subd. (a).) As we have noted, this provision “proscribes
a wide range of conduct,” including, but not limited to, vehicle
theft. (People v. Jaramillo (1976) 16 Cal. 3d 752, 757
(Jaramillo).)
For much of the 20th century, section 10851 (previously
numbered as Vehicle Code section 503) served as one of three
overlapping statutes criminalizing the taking or use of an
(Lara, at pp. 1133–1135.) We went on, however, to reject the
defendant’s claim that his was a qualifying offense; the
defendant, who had been apprehended driving a stolen car
several days after it was taken from its owner, had been tried
and convicted solely on a theory of posttheft driving, not one of
vehicle theft. (Id. at pp. 1135–1138.) We left unanswered the
question, which was not presented by the facts of that case,
whether taking a vehicle without the intent to permanently
deprive the owner of it “must be treated as the equivalent of
vehicle theft for purposes of Penal Code section 490.2.” (Lara,
at p. 1136, fn. 3.)
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
automobile without the owner’s consent. The primary difference
between the statutes, we explained, concerned the degree of
wrongfulness of the defendant’s intent. (People v. Kehoe (1949)
33 Cal. 2d 711, 714.) The least serious of these statutory offenses
was defined in Penal Code former section 499b, “commonly
referred to as the ‘misdemeanor joy-riding statute,’ ” which
provided that a person who took an automobile or other vehicle
“ ‘for the purpose of temporarily using or operating the same,
shall be deemed guilty of a misdemeanor.’ ” (Jaramillo, supra,
16 Cal.3d at p. 755.)3 The most serious of these offenses was
defined in Penal Code former section 487, subdivision 3,
“commonly referred to as ‘grand theft—auto,’ ” which provided
that any person “who feloniously steals, takes, carries, or drives
away the automobile of another is guilty of grand theft.”
(Jaramillo, at p. 755.) That statute had been interpreted to
require an intent to deprive the car owner “permanently of its
value and to appropriate the property to the use and benefit of
the person taking it.” (Kehoe, at p. 714.) Section 10851, which
fell between these two poles, also overlapped with both of these
offenses, insofar as it required an intent “either to permanently
or temporarily deprive the owner thereof of his or her title to or
possession of the vehicle.” (Id., subd. (a), italics added; see
Jaramillo, at p. 755.)
In cases long predating Proposition 47, we had
distinguished the so-called “theft form” of the offense for
purposes of applying the common law rule forbidding dual
3
In 1996, Penal Code section 499b was amended to remove
motor vehicles from the scope of its prohibitions; section 499b
now bars only the temporary use of a vessel, motorboat, or
bicycle without the owner’s permission. (See Stats. 1996, ch.
660, § 1, p. 3669.)
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
convictions for both stealing and receiving the same property.
(See People v. Garza (2005) 35 Cal. 4th 866, 876 (Garza);
Jaramillo, supra, 16 Cal.3d at pp. 757–759.) We explained that
section 10851 punishes the act of taking a car separately from
the act of driving it after the theft is complete. It follows that
“[a] person who violates section 10851[, subdivision ](a) by
taking a car with the intent to permanently deprive the owner
of possession, and who is convicted of that offense on that basis,
cannot also be convicted of receiving the same vehicle as stolen
property. [Citations.] If, on the other hand, a section
10851[, subdivision ](a) conviction is based on posttheft driving,
a separate conviction under [Penal Code] section
496[, subdivision ](a) for receiving the same vehicle as stolen
property is not precluded.” (Garza, at p. 876.)
Proposition 47’s reforms imparted new relevance to the
long-standing distinction between what Garza termed the “theft
and nontheft forms” of the section 10851 offense. (Garza, supra,
35 Cal.4th at p. 876.) Section 490.2, added by Proposition 47,
provides that, “[n]othwithstanding [Penal Code] Section 487 or
any other provision of law defining grand theft, obtaining any
property by theft” valued at $950 or less “shall be considered
petty theft and shall be punished as a misdemeanor.” (Pen.
Code, § 490.2, subd. (a).) This language, as we observed in Page,
plainly covers grand theft of an automobile—a crime punished
by Penal Code section 487—where the value of the vehicle is
$950 or less. (Page, supra, 3 Cal.5th at p. 1182.) But
Proposition 47 speaks more broadly. Under Proposition 47,
other offenses consisting of “obtaining any property by theft,”
where the property is valued at $950 or less, are also punishable
only as misdemeanors. (Pen. Code, § 490.2, subd. (a).)
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
Proposition 47 does not define the term “theft,” but we
have presumed the voters intended the term to bear the same
meaning it had at common law: “a taking with intent to steal
the property—that is, the intent to permanently deprive the
owner of its possession.” (Page, supra, 3 Cal.5th at p. 1182,
citing People v. Riel (2000) 22 Cal. 4th 1153, 1205.)4 It follows,
as we held in Page, that those section 10851 convictions that are
based on what we had previously referred to as the “theft form”
of the offense—taking a car with intent to permanently deprive
the owner of possession—may now be reduced to misdemeanors
under Proposition 47, while those convictions that are based on
the “nontheft” crime of driving a stolen vehicle after the theft is
4
This understanding admittedly is not one a casual reader
would glean from the unadorned text of the Penal Code. The
code contains its own definition of the term “theft,” and that
definition is one that would facially seem to encompass every
type of vehicle taking under section 10851. Under Penal Code
section 484, “Every person who shall feloniously steal, take,
carry, lead, or drive away the personal property of another” is
guilty of theft. (Id., subd. (a).) But despite the facial breadth of
section 484’s language, we have long understood the definition
of “theft” to track its definition at common law: The thief must
not only take property, but also must intend by doing so to
permanently deprive the owner of possession. (See People v.
Davis (1998) 19 Cal. 4th 301, 307; People v. Brown (1894) 105
Cal. 66, 68–70; but see People v. Avery (2002) 27 Cal. 4th 49, 58
[common law intent requirement “is satisfied by the intent to
deprive temporarily but for an unreasonable time so as to
deprive the person of a major portion of its value or
enjoyment”].) Nothing we say here about the application of
Proposition 47 to temporary vehicle takings in violation of
section 10851 should be understood to alter the definition of
theft under California law or the punishment of theft and
related crimes outside the Proposition 47 context.
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
complete are not reducible to misdemeanors. (Lara, supra, 6
Cal.5th at pp. 1135–1137; Page, at pp. 1187–1189.)
The issue in this case arises because stealing a car and
driving a stolen car are not the only two ways to violate section
10851. A section 10851 conviction that is based on unlawfully
taking a vehicle can, but need not, be based on proof that the
defendant intended to permanently deprive the owner of
possession. The statute is, in fact, wholly indifferent to whether
the defendant’s intent was to steal the car or merely to borrow
it; it punishes any vehicle taking “with intent either to
permanently or temporarily deprive the owner thereof of his or
her title to or possession of the vehicle,” and “whether with or
without intent to steal the vehicle.” (§ 10851, subd. (a), italics
added.) To the extent the statute can be violated based on the
taking of a vehicle with intent merely to temporarily deprive the
owner of possession—that is, without intent to steal the
vehicle—the taking form of the section 10851 offense sweeps
somewhat more broadly than the accepted definition of “theft.”
The question we must decide is what consequence ought
to flow from this mismatch. Do we understand Proposition 47
to now subdivide section 10851 vehicle-taking convictions into
two new categories—misdemeanor permanent takings and
felony temporary ones? Or do we instead understand
Proposition 47 to apply to all unlawful takings of low-value
vehicles with intent to deprive the owner of possession,
regardless of whether the defendant has established an intent
to take the vehicle permanently?
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
III.
At least as to this narrow question, the parties agree:
Proposition 47 does not require courts to draw a new distinction
between permanent and temporary takings for purposes of
section 10851. Defendant argues that an interpretation of
Proposition 47’s theft-reduction provision that would exclude
section 10851 violators unable to prove they intended to steal
the vehicle, rather than merely borrow it, would be “patently
absurd and wholly inconsistent with the [initiative’s] purposes.”
The Attorney General agrees: “The People can think of no
plausible reason for treating section 10851 convictions for
taking a vehicle without the intent to permanently deprive the
owner of possession more harshly than those for taking a vehicle
with the intent to permanently deprive the owner of possession.”
We agree with both parties that the voters who enacted
Proposition 47 could not have intended to reconfigure the
section 10851 offense to enact this senseless distinction.
As the parties emphasize, this narrow interpretation of
Penal Code section 490.2 would mean that a person merely
borrowing property without consent—in other words, a person
harboring a less culpable intent than theft traditionally
requires—would be treated more harshly than a person who
actually intended to steal the property. Indeed, were we to
construe Proposition 47 as applying to permanent but not
temporary vehicle takings, a person like defendant who takes a
low-value vehicle would be better off never returning it, as he
would then be subject only to misdemeanor punishment.
Standing alone, that would be curious, but not dispositive.
What makes the narrow interpretation particularly senseless is
not merely that a temporary vehicle taking is less culpable than
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
a taking with intent to permanently deprive, but that—at least
as far as section 10851 is concerned—the former is wholly
included in the latter: A person who steals a vehicle with the
intent to keep it, sell it or break it up for parts, and thus
permanently deprive the owner of it, has also necessarily taken
it with the intent to deprive the owner of possession for a shorter
period of time.
Not so long ago, the architecture of the vehicle-takings
laws made this hierarchy particularly plain. Before it was
amended in 1996, Penal Code section 499b separately punished
temporarily using a vehicle without permission and rendered it
punishable only as a misdemeanor. (See fn. 3, ante.) We held
that a charge of illegally taking and driving a vehicle under
section 10851 necessarily included one of joyriding under Penal
Code section 499b. (People v. Barrick (1982) 33 Cal. 3d 115, 134–
135.) Today, temporarily taking a vehicle without permission is
no longer a separately defined misdemeanor offense under
Penal Code section 499b; it is now punishable solely under
section 10851. But it remains the case that proof of a permanent
taking, at least in the section 10851 context, logically
encompasses proof of a temporary one.
The overlap between the two is by design. As noted,
section 10851 has never treated the intent to permanently
deprive and the intent to temporarily deprive as mutually
exclusive concepts. By its express application to taking or
driving with the “intent either to permanently or temporarily
deprive the owner thereof of his or her title to or possession of
the vehicle” and “whether with or without intent to steal the
vehicle,” section 10851, subdivision (a) is meant to provide for
liability regardless of how long the defendant meant to keep the
vehicle from its owner. The evident purpose of this language
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
was to relieve prosecutors of the burden they had (and have), in
a prosecution for auto theft under Penal Code section 487, to
prove the intent to steal. (See Jaramillo, supra, 16 Cal.3d at
p. 758 [jury could convict of § 10851 “simply because some doubt
existed as to whether defendant intended to steal or merely to
temporarily deprive [owners] of possession and to drive their
vehicle” (italics added)]; People v. Orona (1946) 72 Cal. App. 2d
478, 483–484 [crime of unlawful driving or taking has been
committed if the defendant “took and drove the automobile
belonging to [the owner], without his consent, with the intent to
deprive him, at least temporarily, of the possession of
the vehicle” (italics added)].) Nothing changed in this respect
when the Legislature deleted references to automobiles from
Penal Code section 499b; the amendment simply “streamline[d]”
the law by removing duplicative provisions. (Stats. 1996, ch.
660, § 3, p. 3670; Sen. Com. on Crim. Proc., analysis of Assem.
Bill No. 3170 (1995-1996 Reg. Sess.) as amended July 7, 1996,
p. 3.)
The narrow interpretation of Penal Code section 490.2 as
applied to section 10851 convictions would mean that a person
who intends only to take the vehicle temporarily may be
punished as a felon, while a person who also intends to take the
vehicle permanently is subject only to misdemeanor
punishment.5 The utter illogic of this result effectively
eliminates the narrow interpretation of Penal Code section
490.2 as a possible construction. As in other instances when a
5
This is thus not a case involving legislation providing
prosecutors with the discretion to charge precisely the same
conduct under different statutes, and we do not address such a
scenario here. (Cf. People v. Wilkinson (2004) 33 Cal. 4th 821,
838–841.)
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PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
statute “blindly and literally applied” would lead to “obvious
injustice and a perversion of the legislative purpose” (People v.
Oliver (1961) 55 Cal. 2d 761, 766), we must instead choose a
reasonable interpretation that avoids absurd consequences that
could not possibly have been intended. (See, e.g., People v.
Franco (2018) 6 Cal. 5th 433, 438 [applying this rule to interpret
Prop. 47]; see also, e.g., Lungren v. Deukmejian (1988) 45 Cal. 3d
727, 735 [applying the same rule]; Bruce v. Gregory (1967) 65
Cal. 2d 666, 674 [same].)
We confronted a similar set of issues in People v. King
(1993) 5 Cal. 4th 59, and People v. Jenkins (1995) 10 Cal. 4th 234.
In King, the relevant statutes “seem[ed] to provide that a person
under the age of 18 who commits first degree murder and is tried
as an adult may be committed to the California Youth Authority
(CYA), while the same person who attempts but fails to commit
the same crime is not eligible for CYA, but must instead be
sentenced to prison.” (Id. at pp. 62–63.) We construed the
statutes to avoid this absurd result: “When the Legislature
amended [the attempt statute] five years after making first
degree murderers under the age of eighteen eligible for a CYA
commitment, surely it did not intend to make attempted
premeditated murderers that age ineligible for the same
commitment. It did not intend a lesser included offense to have
potentially harsher penal consequences than the greater
offense.” (Id. at p. 69.) And in Jenkins, we interpreted a statute
awarding credits against a state prison sentence in order to
avoid the result “that a recidivist sentenced under [Penal Code]
section 667.7 would serve a shorter period of imprisonment than
a person sentenced under an otherwise applicable nonrecidivist
sentencing provision”—a result we also described as “absurd.”
(Id. at p. 247; see also In re Eric J. (1979) 25 Cal. 3d 522, 537
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Opinion of the Court by Kruger, J.
[rejecting statutory interpretation under which a minor could be
confined longer for commission of a felony and a misdemeanor
than for commission of the same felony and another felony].)
Similar principles are at play here: When voters enacted
Penal Code section 490.2, they could not possibly have intended
thereby to split the atom of the section 10851 vehicle taking into
two separate crimes—permanent taking and the included
offense of temporary taking—with the latter punished more
harshly than the former. Certainly, there is no indication in the
statute’s stated purpose or history that such was the voters’
intent. The stated purpose of the initiative was to focus prison
spending on “violent and serious offenses,” while maximizing
alternatives to prison for “nonserious, nonviolent crime.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 2, p. 70 (Voter Information Guide).) To that end, the measure
was designed to “[r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession.” (Id., § 3, subd. (3), p. 70.) To accomplish these
purposes, the initiative further directed, its terms are to be
“broadly” (id., § 15, p. 74) and “liberally” (id., § 18, p. 74)
construed. Consistent with these stated goals, the Legislative
Analyst described the general operation of Proposition 47 as
“reduc[ing] certain nonserious and nonviolent property and drug
offenses from wobblers or felonies to misdemeanors.” (Voter
Information Guide, supra, analysis of Prop. 47 by Legis.
Analyst, p. 35.) The official argument in favor of the initiative
measure promised it would “[s]top[] wasting prison space on
petty crimes” by changing “low-level nonviolent crimes such as
simple drug possession and petty theft from felonies to
misdemeanors.” (Voter Information Guide, supra, argument in
favor of Prop. 47, p. 38.)
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Nothing in these materials suggests the voters actually
intended to carve up a heretofore indivisible property offense
into two separate crimes of misdemeanor permanent theft and
felony (or wobbler) temporary taking. On the contrary: when
the vehicle falls within the low-value class of property targeted
by Proposition 47, its taking is by any account a “nonviolent
crime[] like petty theft” (Voter Information Guide, supra, text of
Prop. 47, § 3, subd. (3), p. 70), a “nonserious and nonviolent
property . . . offense[]” (Voter Information Guide, supra,
analysis of Prop. 47 by Legis. Analyst, p. 35) and a “low-level
nonviolent crime[]” (Voter Information Guide, supra, argument
in favor of Prop. 47, p. 38). If anything, to exclude a section
10851 conviction based on the taking of a low-value vehicle
because the defendant’s intent was not culpable enough would
contravene Proposition 47’s overarching purpose of reducing the
punishment for low-level nonviolent property crimes.
More to the point, we see no plausible reason why any
reasonable voter or legislator might have intended such a result.
As noted, both sides agree that no reason exists for the voters to
create such an irrational distinction, and we can imagine none.
IV.
So far we have described common ground between the
parties. But the agreement is narrower than first appears. The
Attorney General argues that even though a person who violates
section 10851 by committing what he calls a “pure taking” of a
vehicle is eligible for Proposition 47 relief, a person who actually
drives the vehicle at any point is not. The Attorney General
illustrates the point with an example from the now-defunct
MTV series Punk’d, in which a prankster towed the celebrity
victim’s car as part of an “elaborate hoax.” As the Attorney
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Opinion of the Court by Kruger, J.
General sees it, the MTV prankster who has arranged for towing
services has committed a misdemeanor (assuming the car is of
the requisite low value); for virtually anyone else, the crime
remains punishable as a felony.
The Attorney General’s theory appears to rest on the
premise that for purposes of section 10851, taking and driving a
vehicle are mutually exclusive categories of conduct. This
manner of parsing the section 10851 offense is contrary to both
experience—which tells us that cars are commonly taken by
driving them away—and our unsurprising observation in Page
that “vehicle theft often involves driving the vehicle.” (Page,
supra, 3 Cal.5th at p. 1188.) The distinction Page found relevant
for Proposition 47 purposes was not between taking and driving,
as such. Rather, Page held the availability of relief under
Proposition 47 turns on the distinction we had previously drawn
in Garza between taking—whether accomplished by driving or
by other means—and driving a stolen car after its theft is
complete, i.e., posttheft driving. (Page, at pp. 1183–1184, 1188–
1189; accord, Lara, supra, 6 Cal.5th at p. 1136; see Garza,
supra, 35 Cal.4th at p. 876.) The distinction between taking a
vehicle by driving it away and taking a vehicle by other means
is not one that has ever had any significance under section
10851, and the Attorney General offers no sound basis for
believing Proposition 47 was intended to distinguish among
vehicle takings on this basis.
V.
Our holding today does not mean that Proposition 47,
properly read, necessarily covers every offense that one might
believe to be less serious than petty theft or simple drug
possession. We are not at liberty to rewrite the initiative to
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Opinion of the Court by Kruger, J.
enact our own view of provisions that might have improved it,
or that would have better vindicated its stated purpose of
reducing punishment for low-level crimes, and we do not do so
here. (See People v. Martinez (2018) 4 Cal. 5th 647, 653–655.)
Nor should our holding be taken to suggest that the term “theft,”
in general, carries anything other than its settled meaning.
Our holding today is narrow, and specific to the
interaction between Proposition 47 and the section 10851
offense. We hold only that to interpret Proposition 47 to split
the section 10851 taking offense into two offenses—
misdemeanor taking with intent to permanently deprive the
owner of the vehicle, and felony taking with intent to do so only
temporarily—is so patently illogical that we cannot imagine any
plausible reason why voters might have intended that result.
The elements of taking an automobile without the intent to
permanently deprive the owner of its possession are included in
taking with such intent. While the initiative’s drafters did not
include any provisions aimed expressly at violations of section
10851, we determined in Page that the initiative was intended
to apply to thefts of low-value vehicles prosecuted under that
section. We conclude here that it was also intended to
ameliorate the punishment for low-value vehicle takings
committed without the intent to permanently deprive.
It certainly would have made our task easier had voters
expressly instructed that all vehicle takings under section 10851
are to be treated as equivalent to vehicle theft for purposes of
Proposition 47’s theft-reduction provision. But Proposition 47
does not speak in this degree of granular detail, so we must
discern the voters’ intent given the other tools at hand.
Confronted with comparable circumstances, we have not
hesitated “to find by implication provisions in a statute which
17
PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
are not within the scope of the statutory language taken
literally.” (Bruce v. Gregory, supra, 65 Cal.2d at p. 674; see also
In re Michele D. (2002) 29 Cal. 4th 600, 606 [that legislators “may
not have considered every factual permutation” for statute’s
application does not mean application to particular conduct is
beyond legislative intent].) It is, after all, “our role to make
sense rather than nonsense out of the corpus juris.” (West
Virginia Univ. Hospitals, Inc. v. Casey (1991) 499 U.S. 83, 101.)
The narrow interpretation of Penal Code section 490.2, as both
sides agree, is one that would make nonsense of the law. We
therefore agree with the parties that it is an interpretation we
must reject.
Under our holdings in Page, Lara, and this case,
Proposition 47’s substantive effect on section 10851 can be
summarized as follows: Except where a conviction is based on
posttheft driving (i.e., driving separated from the vehicle’s
taking by a substantial break), a violation of section 10851 must
be punished as a misdemeanor theft offense if the vehicle is
worth $950 or less. In pre-Proposition 47 cases, where the
defendant seeks resentencing or redesignation under Penal
Code section 1170.18, the defendant bears the burden of proof to
show the relevant facts; in cases arising, tried, or sentenced
after Proposition 47 came into effect, the People bear that
burden. (Lara, supra, 6 Cal.5th at pp. 1135–1137; Page, supra,
3 Cal.5th at pp. 1187–1189.)
VI.
The superior court’s denial of resentencing for defendant’s
section 10851 conviction cannot be upheld either on the ground
that Proposition 47 is categorically inapplicable to such
convictions or on the ground that defendant’s conviction was not
18
PEOPLE v. BULLARD
Opinion of the Court by Kruger, J.
for theft because he lacked the intent to permanently deprive
the vehicle’s owner of its possession. We will therefore reverse
the judgment of the Court of Appeal affirming the superior
court’s denial of defendant’s resentencing petition. The parties
dispute whether a remand to the superior court is required for a
determination of the vehicle’s value. The superior court made
no finding as to whether the vehicle was worth $950 or less, and
while the Court of Appeal majority’s factual recitation states its
value as $500 (a statement supported by the police report), the
concurring and dissenting justice asserts defendant “failed to
meet his burden of establishing the vehicle he took was valued
under $950.” As the valuation question is not within the issues
we ordered briefed, we leave it for resolution by the Court of
Appeal on remand.
The judgment of the Court of Appeal is reversed and the
matter remanded to that court for further proceedings
consistent with this opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
19
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Bullard
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 12/12/16 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S239488
Date Filed: March 23, 2020
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: John P. Vander Feer
__________________________________________________________________________________
Counsel:
Richard L. Fitzer, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland and Lance Winters, Assistant Attorneys General, Michael R. Johnsen and Samuel
P. Siegel, Deputy Solicitors General, Barry Carlton and Meagan J. Beale, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard L. Fitzer
Attorney at Law
6285 East Spring Street, 276N
Long Beach, CA 90808
(562) 429-4000
Samuel Siegel
Deputy Solicitor General
1300 I Street
Sacramento, CA 95814
(916) 210-6269