People v. Yasaroglu CA4/2

Filed 1/13/22 P. v. Yasaroglu CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073738
v. (Super.Ct.No. INF1701457)
SINAN YASAROGLU, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Frederick Paul Dickerson
III, Judge. Affirmed in part, vacated in part, and modified with directions.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew
Mestman and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted Sinan Yasaroglu of one felony count of driving or taking a
vehicle worth more than $950 without permission of the owner (Veh. Code, §10851,
subd. (a) (Veh. Code, § 10851(a)), one felony count of unlawfully receiving the same
stolen vehicle (Pen. Code, § 496d, subd. (a) (Pen. Code, § 496d(a)), and one
misdemeanor count of driving a vehicle without a valid driver’s license (Veh. Code,
§ 12500, subd. (a)). The trial court placed Yasaroglu on three years of probation.
On appeal, Yasaroglu argues that (1) the trial court prejudicially erred by
admitting his postarrest statements to a law enforcement officer, which he claims were
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), (2) we
should reverse his conviction under Penal Code section 496d because he cannot be
convicted of both stealing and receiving the same vehicle, (3) the trial court prejudicially
erred by failing to instruct the jury on the prohibition against such dual convictions, and
(4) the trial court erred by failing to consider his ability to pay restitution and various
fines and fees. We conclude that under newly enacted statutes, which became effective
while this appeal was pending, Yasaroglu’s probation term must be reduced to two years,
and several court-imposed costs must be stricken. We otherwise affirm the judgment.
BACKGROUND
A. Law Enforcement Officers
In August 2017, Victor H. was 75 years old and lived in an assisted living facility
in a gated community.1 Victor owned a 2016 Hyundai Azera, which he had purchased
1 All unspecified complete dates refer to the year 2017.
2
for around $40,000 or more. Victor previously had been in a romantic relationship with
Yasaroglu for years, and the two had lived together.
On August 9, Victor reported his car stolen. He had discovered it missing two or
three days earlier. Victor had parked the car in a secured parking garage at the assisted
living facility.
Victor spoke to a sheriff’s deputy and reported that he suspected his ex-boyfriend,
Yasaroglu, had taken his car. Victor told the deputy that Yasaroglu did not have
permission to take or to use the vehicle. Victor explained that Yasaroglu might have had
a key to the car. While the men lived together, Victor had a spare key made for
Yasaroglu, which Yasaroglu did not return.
Before he reported the car stolen, Victor called Yasaroglu. Yasaroglu answered
the phone and admitted to Victor that he was driving the car. Yasaroglu hung up on
Victor because he did not want to get ticketed for using a cell phone while driving.
Victor provided the deputy with a copy of Yasaroglu’s California identification
card, Yasaroglu’s certificate of naturalization, and a certified letter Victor mailed to
Yasaroglu two months earlier. The deputy attached the documents to his report, and they
were admitted into evidence. The letter stated: “I had advised you at no time, were you
to take my car. I had to hide the key and my wallet every night, to prevent this from
happening. You know you did not have my permission to take it. You have now had my
car for 10 days.”
3
On August 11, California Highway Patrol (CHP) officer James Moran noticed a
disabled silver Hyundai Azera on the shoulder of the I-10 freeway, so he pulled in behind
the vehicle. He found Yasaroglu asleep in the back seat and woke him. Yasaroglu
explained that he had pulled over to take a nap. Officer Moran directed Yasaroglu to exit
the freeway because it was not a safe place to park. Yasaroglu exited the car. Officer
Moran noticed Yasaroglu remove a key fob from his pocket, so Officer Moran assumed
that Yasaroglu owned the car. Officer Moran then received an urgent call and left the
scene before Yasaroglu complied with the directive to exit the freeway.
About two hours later, Officer Moran passed by the same location and found
Yasaroglu still parked there. Officer Moran stopped to investigate again. Yasaroglu
explained that the car battery was dead, the car had no gas, and his cell phone battery
died. Officer Moran offered to drive Yasaroglu to a gas station, and Yasaroglu accepted.
Officer Moran then ran the license plate of the car. After driving away from the scene
with Yasaroglu seated in the front passenger seat of the patrol car, Officer Moran was
informed by dispatch that the owner had reported the car stolen. Officer Moran exited
the freeway, pulled over, and told Yasaroglu that he had to check the patrol car’s front
right tire. Officer Moran walked around the vehicle, opened the passenger door, and
directed Yasaroglu to exit the vehicle, which Yasaroglu did. Officer Moran then
informed Yasaroglu that the car had been reported stolen, and he arrested Yasaroglu.
Officer Moran learned from dispatch that Yasaroglu’s driver’s license was suspended.
4
Yasaroglu continued to speak to Officer Moran for about 30 or 40 minutes after
being taken into custody. He explained that his partner, Victor, owned the car.
Yasaroglu claimed that he drove the car regularly and had taken it with Victor’s
permission. Yasaroglu said that when he and Victor argued, Victor often threatened to
call law enforcement and report the car stolen. It angered Yasaroglu that Victor had
followed through with the threat.
Yasaroglu explained that before August 11 Victor called Yasaroglu and asked him
to return the car. According to Officer Moran, Yasaroglu said that he hung up on Victor,
and “he basically chose not to return the vehicle because he was still in possession of it
two days later.” Yasaroglu told Officer Moran “that he had refused to bring the car back
as requested.” Yasaroglu “acknowledge[d] that he did not have permission to have the
car at that time.” When Officer Moran found Yasaroglu, Yasaroglu was not taking the
car back to Victor.
Later that day, Officer Moran spoke with Victor. Victor said that he wanted
Yasaroglu prosecuted for stealing his car. Officer Moran asked Victor how Yasaroglu
had obtained a car key. Victor thought that he had both of the car’s keys but then
remembered that months earlier Yasaroglu claimed to have lost a key, which prompted
Victor to order new keys. Victor told Officer Moran about the June 2017 letter he sent to
Yasaroglu, instructing him not to drive the car. Victor also told Officer Moran about the
recent phone call in which he had asked Yasaroglu to return his car, but Yasaroglu hung
5
up on him. Victor also reported that Yasaroglu had “scammed” Victor out of $800,000,
which Victor believed Yasaroglu used to pay gambling debts.
B. The Victim’s Testimony
Victor testified for the prosecution. Victor claimed that when he called law
enforcement to report the car stolen, it was a “misunderstanding,” and he actually had
given Yasaroglu permission to borrow the car. But Victor also explained that the
supposed “misunderstanding” was that he was not interested in pressing charges against
Yasaroglu. Victor admitted that he had “some anger problems,” particularly with
Yasaroglu.
Victor claimed not to remember calling Yasaroglu the day before he called law
enforcement, and he also could not remember telling the deputy about the call. He also
did not remember what he told law enforcement about Yasaroglu stealing the car. Victor
explained that his memory may have been affected by some medication he was taking.
Victor testified that he told law enforcement officers that he had loaned Yasaroglu
$850,000 for a business. Sometime after Yasaroglu was arrested, Yasaroglu promised to
repay Victor once the criminal cases were resolved. According to Victor, he and
Yasaroglu needed to travel to Turkey together in order for Yasaroglu to repay him.
Victor needed the money to pay for his residence at the assisted living facility.
Victor admitted that in January 2017 he filed a request for an order to protect him
from Yasaroglu. A temporary restraining order was granted. The request and the order
were admitted into evidence. Victor asked for the restraining order partly because
6
Yasaroglu had previously stolen Victor’s car. Victor admitted that Yasaroglu hit Victor
on his hand, causing bruising. Victor attached photos of the bruises to his request.
Victor also acknowledged that in May 2017 a criminal protective order was issued
to protect him from Yasaroglu. That order too was admitted into evidence. Victor also
acknowledged that in June 2017 he had emailed Yasaroglu to tell him that he did not
have permission to take Victor’s car. But Victor claimed not to remember having any
disagreements with Yasaroglu in 2017.
Victor ended his testimony by saying that it was reasonable to conclude that
Yasaroglu had permission to possess Victor’s car from August 6 through August 11.
Officer Moran and the sheriff’s deputy who initially took the stolen vehicle report
both testified that Victor never equivocated about Yasaroglu not having permission to
possess the vehicle. He never told them about any misunderstanding. Victor never said
that he had problems with his memory.
DISCUSSION
A. Miranda Advisements
Yasaroglu argues that the trial court prejudicially erred by admitting his postarrest
statements to Officer Moran because Officer Moran failed to advise Yasaroglu of his
right to a court-appointed attorney, in violation of Miranda. We are not persuaded.
1. Relevant Proceedings
Before trial, defense counsel orally moved to exclude Yasaroglu’s postarrest
statements. Officer Moran testified at a hearing on the matter.
7
After Officer Moran handcuffed Yasaroglu, Yasaroglu started asking Officer
Moran “lots of questions,” so Officer Moran told him to “hold on” to allow Officer
Moran to finish taking him into custody and so he could advise Yasaroglu of his rights.
Officer Moran advised Yasaroglu of his Miranda rights verbally from memory. On
direct examination, Officer Moran testified that “[t]o the best of [his] ability” he
“remember[ed]” advising Yasaroglu that “he had the right to remain silent,” “anything
that he would say from this point forward would be used against him in a court of law,”
“he had the right to have [an] attorney present before and during questioning,” and “if he
can’t afford an attorney, one would be appointed for him free of charge.” Officer Moran
believed that Yasaroglu understood the advisements that Officer Moran gave to him.
Yasaroglu did not ask for an attorney and continued talking to Officer Moran.
On cross-examination, Officer Moran acknowledged that he had not reviewed the
recording of Yasaroglu’s arrest. Defense counsel asked if Officer Moran’s advisement to
Yasaroglu had been: “[Y]ou do have the right to remain silent, and anything you say can
and could be [used] against you in a court of law; you do have a right to have an attorney
present before answering any questions for me[.]” Officer Moran answered: “Yes. I
believe that was the—the—if—if that’s what the report says. I don’t recall exactly what
was said on the recording, but to that—it was something like that, yes.” Defense counsel
asked Officer Moran if he had failed to advise Yasaroglu that he had a right to a court-
appointed attorney. Officer Moran answered: “I may not have I said that, if it’s not on
the MVARs.” Defense counsel did not introduce the recording.
8
The trial court denied the defense motion, concluding that Officer Moran had
substantially complied with Miranda and that Yasaroglu waived his rights, which he
understood, by continuing to speak with Officer Moran. The trial court explained: “The
officer concedes he may not have said, ‘If you can’t afford an attorney, one would be
appointed’—‘appointed for you.’ The Court find[s] that is not a requirement to be
substantially in compliance with Miranda.”
2. Analysis
In Miranda, supra, 384 U.S. 436, the United States Supreme Court set forth
specific procedural safeguards that require law enforcement to advise suspects of their
Fifth and Fourteenth Amendment rights before any custodial interrogation. (Duckworth
v. Eagan (1989) 492 U.S. 195, 201-202 (Duckworth).) The suspect must be advised that
(1) “he has the right to remain silent,” (2) “anything he says can be used against him in a
court of law,” (3) “he has the right to the presence of an attorney,” and (4) “if he cannot
afford an attorney one will be appointed for him prior to any questioning if he so
desires.” (Miranda, at p. 479; People v. Weaver (2001) 26 Cal.4th 876, 918 (Weaver).)
The Miranda warnings do not need to be “given in the exact form described in that
decision.” (Duckworth, supra, at p. 202.) We instead focus on whether the warnings
reasonably conveyed to the suspect his or her rights as required by Miranda.
(Duckworth, at p. 202 .) “We apply federal standards in reviewing defendant’s claim that
the challenged statements were elicited from him in violation of Miranda.” (People v.
Bradford (1997) 14 Cal.4th 1005, 1033.) “Statements made by a custodial defendant in
9
the absence of Miranda warnings are inadmissible in the prosecution’s case-in-chief.”
(Weaver, supra, at p. 918.)
When a criminal defendant challenges the voluntariness of his confession at trial,
“the prosecution must prove at least by a preponderance of the evidence that the
confession was voluntary.” (Lego v. Twomey (1972) 404 U.S. 477, 489; People v.
Markham (1989) 49 Cal.3d 63, 70-72.) When we review a trial court’s ruling on whether
“a statement was collected in violation of the defendant’s rights under Miranda, supra,384 U.S. 436, we defer to the trial court’s resolution of disputed facts, including the
credibility of witnesses, if that resolution is supported by substantial evidence.” (Weaver,
supra, 26 Cal.4th at p. 918.) “Considering those facts, as found, together with the
undisputed facts, we independently determine whether the challenged statement was
obtained in violation of Miranda’s rules [citation], that is, whether (assuming the
defendant was in custody) the statement was preceded by the now-famous admonition of
Miranda rights . . . .” (Ibid.)
Yasaroglu’s only argument on appeal challenging the adequacy of the Miranda
advisement is that he “was not told that he would be provided an attorney if he could not
afford one. [Citation.] Officer Moran’s Miranda warnings were inadequate.” The
argument is not supported by the record. The trial court did not find that Officer Moran
failed to advise Yasaroglu that he would be provided with an attorney if he could not
afford one. Rather, the court noted that Officer Moran conceded that “he may not have”
advised Yasaroglu of the right to a court-appointed attorney, but the court further found
10
that such an advisement was not necessary for substantial compliance with Miranda.2
Officer Moran did concede that he might not have advised Yasaroglu of that right “if it’s
not on the [recording,]” but no party introduced the recording. Officer Moran otherwise
testified that “[t]o the best of [his] ability” he “remember[ed]” advising Yasaroglu that if
he could not “afford an attorney, one would be appointed for him free of charge,” in
addition to the other three Miranda rights.
Because the record does not support Yasaroglu’s contention that he “was not told
that he would be provided an attorney if he could not afford one,” we must reject his
argument that the trial court erred by denying his motion to exclude his postarrest
statements to Officer Moran.
B. CALCRIM No. 3516, and the Dual Conviction Prohibition
Yasaroglu argues that the trial court prejudicially erred by failing to instruct the
jury with CALCRIM No. 3516 on the prohibition against dual convictions for taking and
receiving the same stolen property. He also argues that his convictions under both
Vehicle Code section 10851(a) and Penal Code section 496d(a) violate the rule against
dual convictions, so we should reverse the conviction for receipt of the stolen vehicle.
The People concede the instructional error but argue that it was harmless given the strong
2 The trial court’s determination that even if Officer Moran failed to advise
Yasaroglu of his right to a court-appointed attorney the advisement would have
substantially complied with Miranda is legally erroneous. Such an advisement would not
convey any information to a criminal suspect about one of the four prescribed Miranda
rights (Duckworth, supra, 492 U.S. at p. 202) and thus would violate Miranda (People v.
Bradford (2008) 169 Cal.App.4th 843, 854).
11
evidence supporting a nontheft offense conviction under Vehicle Code section 10851(a).
The People also argue that, given the strength of the evidence supporting the nontheft
offense conviction, Yasaroglu was not improperly convicted of both taking and receiving
the same stolen property. We agree with the People on all points.3
A criminal defendant may not be convicted of both stealing and receiving the
same property. (People v. Ceja (2010) 49 Cal.4th 1, 4-5.) This common law rule against
dual convictions is “founded on the notion that it is ‘logically impossible for a thief who
has stolen an item of property to buy or receive that property from himself.’” (Ibid.) If a
defendant is wrongly convicted of both taking and receiving the same property, then the
receiving conviction should be reversed. (Id. at pp. 9-10.)
Vehicle Code section 10851(a) describes two distinct offenses—the unlawful
taking of a vehicle with the intent to permanently deprive the owner of possession, which
is a theft offense, and the unlawful driving of a vehicle with the intent to permanently
deprive the owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza);
People v. Calistro (2017) 12 Cal.App.5th 387, 394.) When the unlawful “driving occurs
or continues after the theft is complete” (in other words, “‘posttheft driving’”), the
3 Defense counsel did not move to dismiss either of Yasaroglu’s felony convictions
for violating the prohibition against dual convictions. Yasaroglu argues that we should
review the claim of error in any event because counsel was allegedly deficient for failing
to do so. But he cites no authority for the proposition that such a motion was necessary.
The People do not argue that Yasaroglu forfeited the argument. Because we conclude
that Yasaroglu was not improperly convicted of taking and receiving the same stolen
property, we need not decide whether Yasaroglu forfeited the argument or whether
counsel’s performance was in any way deficient. (See People v. Fuiava (2012) 53
Cal.4th 622, 649, fn. 7 [“We need not decide whether defendant’s appellate claim fails on
this procedural ground, however, because the claim fails on its merits”].)
12
offense is not a theft offense. (Garza, supra, at p. 871; People v. Page (2017) 3 Cal.5th
1175, 1183 (Page).) When “the evidence shows a ‘substantial break’ between the taking
and the driving, posttheft driving may give rise to a conviction under Vehicle Code
section 10851 distinct from any liability for vehicle theft.” (Page, supra, at p. 1188;
People v. Strong (1994) 30 Cal.App.4th 366, 375 (Strong).) Thus, “a defendant who
steals a vehicle and then continues to drive it after the theft is complete commits separate
and distinct violations of [Vehicle Code] section 10851(a).” (Garza, at p. 880.)
A person who violates Vehicle Code section 10851(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.” (Garza, supra, 35 Cal.4th at p. 876.) If a conviction under Vehicle Code
section 10851(a) is based on posttheft driving, however, then a separate conviction “for
receiving the same vehicle as stolen property is not precluded.” (Garza, at p. 876.)
The trial court has a sua sponte obligation to instruct the jury that it cannot convict
a defendant “both for theft and for receiving the same stolen property.” (Garza, supra,
35 Cal.4th at p. 881.)
Yasaroglu was charged with one count of violating Vehicle Code section
10851(a), based on both forms of the offense (theft and posttheft driving). The amended
information alleged that “on or about” August 11 Yasaroglu did “willfully and unlawfully
drive or take” Victor’s vehicle “without the consent of and with intent to deprive the
owner of title to and possession of said vehicle.” (Italics added.) The jury accordingly
13
was instructed that it could find Yasaroglu guilty of violating section 10851 of the
Vehicle Code if the prosecution proved that Yasaroglu either “took or drove someone
else’s vehicle without the owner’s consent.” The trial court did not, however, instruct the
jury that it had to choose between those theories or that dual convictions for stealing and
receiving are prohibited. With respect to the instruction on the prohibition against dual
convictions (CALCRIM No. 3516), the trial court declined without explanation to give
the instruction. The jury found Yasaroglu guilty as charged. The verdict did not specify
whether the jury found Yasaroglu guilty on the basis of taking or posttheft driving.
This case is materially indistinguishable from Garza, supra, 35 Cal.4th 866. In
Garza, the Supreme Court addressed whether dual convictions under Vehicle Code
section 10851(a) and for receiving the same stolen vehicle under Penal Code section 496,
subdivision (a), are prohibited.4 (Garza, at p. 871.) There, “the evidence at trial
adequately supported the [Vehicle Code] section 10851(a) conviction on either a taking
or a posttheft driving theory, the prosecutor argued both the taking and the posttheft
driving theories to the jury, the trial court’s instructions did not require the jury to choose
between the theories and did not explain the rule prohibiting convictions for stealing and
receiving the same stolen property, and the jury’s guilty verdict did not disclose which
theory or theories the jurors accepted.” (Garza, at p. 871.) Garza concluded that when
4 The Legislature codified the common law rule against dual convictions in Penal
Code section 496, subdivision (a). (Garza, supra, 35 Cal.4th at p. 874.) Penal Code
section 496d(a) does not include similar language codifying the common law rule. But
the common law rule still applies, and Garza is not materially distinguishable on this
ground.
14
“the evidence is such that it is not reasonably probable that a properly instructed jury
would have found that the defendant took the vehicle but did not engage in any posttheft
driving, a reviewing court may construe the Vehicle Code section 10851(a) conviction as
a conviction for posttheft driving and on this basis may uphold the conviction . . .
[citation] for receiving the same vehicle as stolen property.” (Id. at p. 872.)
Under Garza, we presume that Yasaroglu’s dual convictions—for unlawful taking
or driving under Vehicle Code section 10851(a) and for receiving stolen property under
Penal Code 496d(a)—are valid. (Garza, supra, 35 Cal.4th at p. 881.) We then “will set
aside either or both of the convictions only if defendant has affirmatively shown
prejudicial error amounting to a miscarriage of justice.” (Ibid.)
Like the defendant in Garza, Yasaroglu has demonstrated error. (Garza, supra, 35
Cal.4th at p. 881.) The trial court erred by not instructing the jury with CALCRIM
No. 3516 on the prohibition against dual convictions. (Garza, at p. 881.) Yasaroglu
argues that the error is subject to the federal harmlessness standard of Chapman v.
California (1967) 386 U.S. 18, 24 because the failure to instruct the jury about the dual
conviction rule purportedly violated his constitutional right “to present a defense.” We
cannot agree, because in Garza the Supreme Court applied the state law harmlessness
standard of People v. Watson (1956) 46 Cal.2d 818, 836 to analyze whether an identical
error prejudiced the defendant. (Garza, at pp. 881-882.) We are bound by Supreme
Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Moreover, regardless of whether the instruction was given, defense counsel could have
15
argued that the jury could not convict Yasaroglu under the theft theory of Vehicle Code
section 10851(a) and also convict him of receiving stolen property. Defense counsel did
not make any such argument to the jury.
Yasaroglu argues that because the trial court instructed the jury with CALCRIM
No. 3515, this case is distinguishable from Garza, supra, 35 Cal.4th 866 so that the
federal harmlessness standard applies. CALCRIM No. 3515, as given to the jury,
provides: “Each of the counts charged in this case is a separate crime. You must
consider each count separately and return a separate verdict for each one.” Yasaroglu
does not otherwise challenge the giving of that instruction as improper. Nor does he
explain how the giving of the instruction distinguishes this case from Garza so that the
federal harmlessness standard applies.
Applying Garza to determine whether the trial court’s failure to instruct the jury
with CALCRIM No. 3516 “caused prejudice to defendant amounting to a miscarriage of
justice, we ask whether it is reasonably probable that a properly instructed jury would
have reached a result more favorable to defendant by not convicting him of violating both
[Vehicle Code] section 10851(a)” and Penal Code 496d(a). (Garza, supra, 35 Cal.4th at
p. 882.)
It is not reasonably probable that a properly instructed jury would have reached a
different result. As to the taking, Victor reported to two law enforcement officers that he
suspected that Yasaroglu had taken his car and that Yasaroglu did not have permission to
take the car. Victor also reported that Yasaroglu could have retained a car key that he
16
obtained when the two men lived together. In addition, Victor had requested a restraining
order within the prior year because Yasaroglu had allegedly stolen his car, and Victor
sent Yasaroglu a certified letter two months earlier stating that Yasaroglu did not have
permission to take the car.
As to the posttheft driving, law enforcement found Yasaroglu asleep in the car on
the side of the freeway about four days after Victor discovered the car missing, three days
after Victor called Yasaroglu and demanded that he return the car, and two days after
Victor reported the car stolen. Given that timeline, the theft of the car must have been
completed long before Yasaroglu drove the car on the freeway, and it is not reasonably
probable that a properly instructed jury would have reached a contrary conclusion. (See
Garza, supra, 35 Cal.4th at p. 882.) Moreover, given that Yasaroglu’s only defense was
that he did have permission to take and to drive the car, and given that the jury convicted
him on all counts and thus found that he did not have permission, it is not reasonably
probable that a properly instructed jury would have convicted him of theft but not
posttheft driving. Thus, under Garza, “we may uphold both convictions by construing
defendant’s conviction under [Vehicle Code] section 10851(a) as a nontheft conviction
for posttheft driving.” (Ibid.)
Yasaroglu argues for a contrary conclusion on the basis of the prosecution’s
opening statement and closing argument. He argues that “the prosecution in this case
proceeded most unambiguously on a theft theory,” so the jury necessarily convicted
17
Yasaroglu of taking the vehicle and not posttheft driving. The argument mischaracterizes
the record.
The prosecutor’s opening statement and closing argument did not advance one
theory over the other. In the opening statement, the prosecutor initially told the jury:
“We are here today because in August of 2017—August 6th and 7th—the defendant,
[Yasaroglu], stole [Victor’s] vehicle without his permission.” The prosecutor also did not
explain to the jury that Vehicle Code section 10851(a) could be violated by either theft or
posttheft driving. But the prosecutor did explain to the jury that there were two distinct
phases of the offense, the theft of the car on August 6 or 7 and Yasaroglu’s being found
in the car on August 11 after having refused Victor’s request to return it. As to
Yasaroglu’s conduct on August 11, the prosecutor explained that Yasaroglu admitted to
Officer Moran that he was driving the car to a friend’s house “multiple days later, after
he’s been called, after he’s been notified in writing, after it’s been reported stolen.”
Moreover, the prosecutor argued that there was “overwhelming” evidence that Yasaroglu
“did not have permission to have the vehicle, that he had taken the vehicle, and that he
knew it was stolen when [he] was possessing it.”
In sum, although the prosecutor did not explain that the taking and posttheft
driving constituted separate ways of violating Vehicle Code section 10851(a), the
prosecutor described the distinct conduct supporting each theory. The record therefore
does not support Yasaroglu’s contention that the prosecutor advanced only the theft
theory of the offense.
18
For all of the foregoing reasons, Yasaroglu’s argument fails. “[I]t is not
reasonably probable that a properly instructed jury would have found defendant guilty of
violating [Vehicle Code] section 10851(a) by stealing the car but not by posttheft
driving.” (Garza, supra, 35 Cal.4th at p. 882.)
C. Ability to Pay Hearing
Yasaroglu was sentenced in September 2019, nine months after the publication of
People v. Dueñas (2019) 30 Cal.App.5th 1157. The trial court imposed a minimum $300
restitution fine (Pen. Code, § 1202.4, subd. (b)), a $120 court operations fee (Pen. Code,
§ 1465.8, subd. (a)(1)), and a $90 court facilities fee (Gov. Code, § 70373, subd. (a)(1)).
Defense counsel did not object.
Yasaroglu argues that counsel’s failure to object amounted to ineffective
assistance of counsel. Assuming for the sake of argument that counsel’s performance fell
below an objective standard of reasonableness, Yasaroglu cannot carry his burden of
demonstrating that “counsel’s deficient performance was prejudicial, that is, there is a
reasonable probability that, but for counsel’s failings, the result would have been more
favorable to the defendant.” (People v. Sepulveda (2020) 47 Cal.App.5th 291, 301;
Strickland v. Washington (1984) 466 U.S. 668, 687-692.) Victor testified that Yasaroglu
promised to repay him $850,000 when the trial concluded. In light of the uncontradicted
evidence that Yasaroglu had access to such a large sum of money, it is not reasonably
probable that the trial court would have declined to impose $510 in fines and fees had
counsel objected that Yasaroglu did not have the ability to pay the amount.
19
D. Other Costs
The trial court also imposed a $514.58 booking fee (Gov. Code, § 29550), the
monthly cost of probation supervision ranging from $16.42 to $104 to be determined by
the probation department (Pen. Code, § 1203.1b), and the cost of the presentence
probation report also to be determined by the probation department and not to exceed
$1,095 (Pen. Code, § 1203.1b). While this appeal was pending, Assembly Bill No. 1869
(2019-2020 Reg. Sess.) (Assembly Bill 1869) added section 1465.9 to the Penal Code
and section 6111 to the Government Code. (Stats. 2020, ch. 92, §§ 11, 62.) Those
statutes provide that on and after July 1, 2021, the unpaid balance of any costs imposed
under Penal Code section 1203.1b and Government Code section 29550 shall be
“unenforceable and uncollectible and any portion of a judgment imposing those costs
shall be vacated.” (Pen. Code, § 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).) The
effective date has passed. The People concede that Assembly Bill 1869 applies after the
effective date because Yasaroglu’s judgment is not yet final.
“When the Legislature has not made its intent clear about whether a criminal
statute operates prospectively or retroactively, we presume that the statute applies
prospectively.” (People v. Zamora (2019) 35 Cal.App.5th 200, 207 (Zamora).) When a
statutory enactment lessens the punishment for a crime, we presume that the statute
applies retroactively to all nonfinal judgments of conviction absent evidence of a contrary
legislative intent, such as an express savings clause providing only prospective relief. (In
re Estrada (1965) 63 Cal.2d 740, 745; Zamora, supra, at p. 207.)
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Neither section 1465.9 to the Penal Code nor section 6111 to the Government
Code contains a savings clause, nor is there an express indication that the statutes apply
prospectively or retroactively. The statutes also contain no indicia of legislative intent
concerning their application to cases not yet final on appeal. (See Stats. 2020, ch. 92,
§§ 11, 62.) We therefore conclude that Assembly Bill 1869 applies retroactively to this
case because the judgment was not final on the effective date. (See Zamora, supra, 35
Cal.App.5th at p. 207.)
We vacate the portion of the judgment imposing the booking fee (Gov. Code,
§ 29550), the probation supervision fee (Pen. Code, § 1203.1b), and the presentence
report fee (Pen. Code, § 1203.1b).
E. Probation Term
Effective January 1, 2021, Assembly Bill No. 1950 (2019-2020 Reg. Sess.)
(Stats. 2020, ch. 328, § 2) (Assembly Bill 1950) amended Penal Code section 1203.1 so
that the maximum term of probation for most felonies shall not exceed two years. (Pen.
Code, § 1203.1, subds. (a), (m).) Yasaroglu argues that the change in the law applies
retroactively to defendants like him whose sentences were not final when Assembly Bill
1950 became effective. The People concede the point. We agree with those courts that
have already held that Assembly Bill 1950 affected an ameliorative change in the law that
applies retroactively to those like Yasaroglu whose sentences were not final when
Assembly Bill 1950 became effective. (See People v. Sims (2021) 59 Cal.App.5th 943,
958-964; People v. Quinn (2021) 59 Cal.App.5th 874, 879-884; People v. Burton (2020)
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58 Cal.App.5th Supp. 1, 15-16; People v. Stewart (2021) 62 Cal.App.5th 1065, 1070-
1074, review granted June 30, 2021, S268787; People v. Schulz (2021) 66 Cal.App.5th
887, 893-895; People v. Lord (2021) 64 Cal.App.5th 241, 244-246.)
Moreover, we conclude that Yasaroglu is entitled to the benefit of Assembly Bill
1950 because his felony convictions are not listed among those specifically excluded
from the reduction (Pen. Code, §§ 1203.1, subd. (m)(1)-(2), 667.5, subd. (c)), and the
statutes under which he was convicted do not prescribe “specific probation lengths”
(Pen. Code, §§ 1203.1, subd. (m)(1), 496d(a), 1170, subd. (h); Veh. Code, § 10851(a)).
The parties disagree about the appropriate remedy. Yasaroglu argues that we
should reduce his probation from three years to two years, but the People contend that we
instead should remand the matter to the trial court for resentencing. The People argue
that “[m]erely striking any portion of the probationary term that exceeds two years
deprives the superior court and the parties of a necessary determination of the status of
the probation.” The argument assumes that Yasaroglu could continue to serve a term of
probation. But the court sentenced Yasaroglu to three years probation on September 6,
2019, so the new two-year maximum probation period ended on September 6, 2021
(before this opinion was filed). Yasaroglu cannot be ordered to serve any additional
probation period. Under these circumstances, we perceive of no useful purpose that
would be served by remand. We consequently modify the order placing Yasaroglu on
probation to reduce the term of probation from three years to two years.
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DISPOSITION
The portion of the judgment imposing the booking fee (Gov. Code, § 29550.2), the
probation supervision fee (Pen. Code, § 1203.1b), and the presentence report fee (Pen.
Code, § 1203.1b) is vacated. We modify the order granting probation by reducing the
term from three years to two years. We direct the trial court to correct the sentencing
minute order to reflect the vacated fees and the imposition of a two-year term of formal
probation, and to notify the appropriate probation department of the change to
Yasaroglu’s probationary term. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
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