PEOPLE v. ADAMS

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Mark Anthony ADAMS et al., Defendants and Appellants.

No. F017085.

Decided: August 04, 1993

Stephen Greenberg, Nevada City, Alisa M. Weisman, Claremont, Jeffrey J. Stuetz, San Diego, and James F. Johnson, San Francisco, under appointment by the Court of Appeal, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Clayton S. Tanaka and Ruth M. Saavedra, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

We publish only the portion of this opinion which holds that the reduction of the prescribed prison terms in Vehicle Code section 10851, effective January 1, 1993, should not be applied retroactively.   Ultimately, we will affirm the judgments.

VERDICTS AND JUDGMENTS

A jury convicted appellants Mark Anthony Adams, Thomas Rovan Prince, Jermaine King and David Harrison of robbery (Pen. Code 1 §§ 211, 212.5(b), count one);  vehicle theft (Veh. Code § 10851(a), count two);  and conspiracy to commit robbery (§ 182, count three).   The jury also found, in connection with the conspiracy count, that appellants had committed the three overt acts alleged in the information:  they had stolen a Jeep in Los Angeles to use in the robbery (overt act one), they had traveled to Fresno from Los Angeles to commit the robbery (overt act two), and they had stolen a van in Fresno to use in the robbery (overt act three).

Adams received a sentence of fifteen years, consisting of five years for the robbery (count one), one year for the vehicle theft (count two), four years for personal use of a firearm (§ 12022.5(a)), and five years for having been convicted previously of a serious felony (§ 667(a)).

Prince and King received identical sentences of seven years, consisting of five years for the robbery, one year for the vehicle theft, and one year pursuant to section 12022(a)(1) (principal armed in commission of offense).

Harrison was sentenced to eight years, consisting of five years for the robbery, one year for the vehicle theft, one year pursuant to section 12022(a)(1), and an additional one year for having served a prior separate prison term (§ 667.5(b)).

The sentence on the conviction for conspiracy (count three) was stayed as to all appellants.

STATEMENT OF FACTS **

DISCUSSION

A. Vehicle Code Section 10851 (All Appellants)

Prior to January 1, 1990, the punishment authorized for vehicle theft under Vehicle Code section 10851 included imprisonment in a state prison for a term of 16 months, 2 years, or 3 years.2  Effective January 1, 1990, the statute was amended to increase the three base terms to “two, three, or four years.” 3  (Stats.1989, ch. 930, § 11.)   However, the relevant 1989 legislation also provided that the lower, pre–1990 terms would be reinstated as of January 1, 1993, unless the Legislature, before January 1, 1993, otherwise directed.  (Stats.1989, ch. 930, §§ 11.1, 12.5.)   The increase in punishment was in response to “the rapid increase in motor vehicle theft [which] has reached crisis proportions” and “the lack of any serious deterrent to this crime.”  (Stats.1989, ch. 930, § 1.)   Consequently, the Legislature believed it was “in the best interest for public safety to enhance the penalties for the crime[ ] of vehicle theft․”  (Ibid.)   No subsequent action to modify or suspend the effect of the 1989 changes to section 10851 occurred, and the reduction in the available state prison terms under the statute took effect as scheduled.

The vehicle theft of which appellants were convicted was committed in 1991;  they were sentenced in December 1991 and January 1992.   Relying on In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, appellants now contend their respective subordinate, consecutive sentences for the crime must be reduced from one year 4 to eight months.5  Estrada holds that “where the amendatory statute mitigates punishment and there is no saving clause, ․ the amendment will operate retroactively so that the lighter punishment is imposed.”  (In re Estrada, supra, 63 Cal.2d at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948;  see also Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434.)

This issue has been addressed in several recent court of appeal opinions.   Predictably, the results are mixed.  In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564, review granted July 2, 1993 (S032514), People v. Michaels (1993), 16 Cal.App.4th 459, 20 Cal.Rptr.2d 121, and People v. Rodriguez (1993) 16 Cal.App.4th 1331, 20 Cal.Rptr.2d 699, rejected retroactive application of the 1993 reduction in the three base prison terms of section 10851.  People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, review granted July 2, 1993 (S033325), In re Ellis C. (1993) 17 Cal.App.4th 279, 21 Cal.Rptr.2d 258, and People v. Avila (1993), 16 Cal.App.4th 1489, 20 Cal.Rptr.2d 867, arrived at the opposite conclusion.   As noted, review has been granted in both Pedro T. and Vaughan;  we suspect Michaels, Rodriguez, Ellis C. and Avila will in due course join them before the Supreme Court.   Because the same fate is likely in store for this case, extended discussion of the question is unneeded.   We simply state that we align this court with Pedro T.,Michaels, and Rodriguez and hold that appellants are not entitled to the benefit of the more lenient term.6  This is not a situation where, as inEstrada, a statutory amendment operated to “reduce the penalties formerly provided․”  (In re Estrada, supra, 63 Cal.2d at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.)   Here, a statutory amendment which increased the punishment for a fixed period expired.   The amendment was enacted for a specific purpose.   Had the legislature intended that the range of available prison terms for violations of section 10851, subdivision (a) committed during 1990, 1991, and 1992 be 16 months, two years, or three years, it would not have been necessary to adopt the 1989 amendment in the first place.

B.–F.***

DISPOSITION

The judgments are affirmed.

FOOTNOTES

FN1. Unless otherwise noted, all further citations are to the Penal Code..  FN1. Unless otherwise noted, all further citations are to the Penal Code.

FOOTNOTE.   See footnote *, ante.

2.   Section 10851 itself provided only that a person convicted of vehicle theft “shall be punished by imprisonment in the county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.”   The range of possible terms for a violation of this statute was derived from section 18, which provided then, as it does today, that “[e]xcept in cases where a different punishment is prescribed by any law of this state, every offense declared to be ․ punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years ․”

3.   The amended subdivision also provided for alternate fines and county jail commitments, or combinations of imprisonment in a jail or state prison and fines.

4.   One-third of three years, the mid-term established under section 10851, subdivision (a) in effect between January 1, 1990 and January 1, 1993.

5.   One-third of two years, the mid-term established under section 10851, subdivision (a) in effect after January 1, 1993.

6.   We leave out of our consideration the relevance and effect, if any, of the fact that appellants in this case were sentenced by the trial court before January 1, 1993, the date when the lower terms were reinstated.

FOOTNOTE.   See footnote *, ante.

DIBIASO, Associate Justice.

STONE (WM. A.), Acting P.J., and FRANSON, J.† (assigned), concur.