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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Lenny Joe BORJA, Defendant and Appellant.

No. D016952.

Decided: August 19, 1993

Kevin C. McLean, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen. and Robert M. Foster and Douglas P. Danzig, Deputy Attys. Gen., for plaintiff and respondent.

Lenny Joe Borja appeals the judgment on his unlawful taking or driving a motor vehicle conviction with a prior similar conviction (Pen.Code, §§ 666.5, subd. (a);  667.5, subd. (b);  Veh.Code, § 10851, subd. (a)).

At approximately 7 a.m. on March 9, 1991, Jose Quiroz parked his Datsun pick-up at a park in Chula Vista.   Rigoberto Aspeitia accompanied him.   They went to the park to prepare for an afternoon party for Aspeitia's daughter.   The truck was loud because of a hole in the muffler.

Later in the day, Aspeitia noticed a group of men including Borja walking around the parking lot.   Someone in the group, not Borja, was pulling on door handles.   Between 4 and 5 p.m., Quiroz noticed his truck missing.   He reported it stolen.

Nine days later, Quiroz and Aspeitia were working on a house when they heard Quiroz's truck.   They saw the truck with two people in the cab.   Aspeitia saw the driver's face and identified Borja.   The other occupant was a black male who Aspeitia could not identify.   A group of people were around the truck.   One appeared to be Hispanic.   Quiroz called the police.   When Officer Johnson arrived, Aspeitia identified Borja as the person he had seen driving the truck.   Johnson arrested Borja.   Borja falsely identified himself.

Borja's niece Donna testified on the morning of the arrest, she was at the house where Borja was arrested, the home of her Aunt Glenda.   She was standing outside with Glenda, another woman, Borja and a black man named Roy when the stolen pick-up pulled up.   It was driven by a black man who left leaving the truck behind.

On rebuttal, the People called defense investigator Moreno who testified he had interviewed Glenda and Donna.   Glenda told him Roy was not present and she did not know a black male named Roy or Ray.   Donna agreed.   The People then called Roy Hadnot.   He first testified he was present when Borja was arrested and saw a black man arrive in the truck.   He later testified these statements were not true.   He repeatedly testified he knew nothing about the pick-up.   At one point he testified he saw Borja drive the truck and at another point denied this.   He testified the district attorney's investigator did not ask if he or Borja had driven the truck.

After the jury convicted Borja, the court found he had served two prior prison terms, one for violation of Vehicle Code section 10851.   It sentenced him to serve seven years in prison:  the five-year upper term for taking or unlawfully driving a vehicle with a prior similar conviction enhanced by two one-year terms for prior prison terms.2  Borja contends the trial court committed reversible error in admitting the rebuttal evidence and the sentence should be reduced by a year since the upper term for unlawfully driving or taking a vehicle with a prior similar conviction has been reduced to four years.


I *


Borja contends the trial court erred in imposing a five-year upper term for unlawfully driving or taking a motor vehicle with a prior similar conviction.   Relying on In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, he argues the maximum term the court could impose was a four-year upper term since Penal Code section 666.5, subdivision (a) limited the upper term to four years effective January 1, 1993.3

In Estrada, the California Supreme Court held legislative repeal of a statute or reduction of punishment for an offense, in the absence of a savings clause, entitles a defendant whose case is then pending on appeal to the meliorative effect of the repeal or reduction.  (In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)   We recently considered this issue and determined the sunset clause associated with section 666.5 was a savings clause within the meaning of In re Estrada, supra, and therefore any reduction in punishment should not be applied retroactively (People v. Michaels (1993) 16 Cal.App.4th 459, 463, 20 Cal.Rptr.2d 121).4  We agree.

The legislative history of Penal Code section 666.5, subdivision (a) and Vehicle Code section 10851 shows the reason for enacting the statutes with a sunset clause was to test the deterrent effect of increased penalties for a three-year period.   At the end of that period, the Legislature could examine the impact of the increased punishment on automobile thefts and determine the desirability of continuing the increased penalties.   Speaking before the Senate Committee on Judiciary chaired by Senator Lockyer, the sponsor of the legislation (Assem.Bill No. 332, Assem.Final Hist. (1989–1990 Reg.Sess.) p. 326), Assemblyman Nolan, told the committee the bill was “meant to address the terrible and increasing problem of auto theft here in California.”   He stated:

“This is the new crime of choice of the criminals in the state of California.   It costs the consumers about $800,000,000.00 a year.   It adds about 10% to our insurance premiums on top of that.   In 1987 there were 231,000 thefts statewide, that's 634 everyday.   Roughly there is a car stolen every two minutes in the state of California.   One of the problems is it [ ] has become a good business.   People make money from it and the penalties involved in it are so small they're just viewed as a relatively small cost of doing business.

“Also this crime is one that is considered by our criminal justice system as being just another property crime.   And for anybody who has ever had their car stolen, this is anything but just another property crime.   In the old west they use[d] to hang horse thieves because it was critically important to have transportation.   In California today it's no less critically important.   And I am not advocating hanging these auto thieves, but I think they deserve more than the revolving door that has them in only long enough to post bail and serving very little other time for it.   My bill has been carefully structured, working with the varying interest groups involved.   It's not nearly as strong as it was to start with, but I think it still is a major step forward in basically trying to take the profit out of this now very highly profitable crime.


“[Senator Lockyer]:  Well, let me, I'm going to suggest an amendment which would maybe help move us along.   You've, at least in our private discussions, compared the deterrence that resulted from the increased penalties in burglary, numbers of years ago.   And you may well be right[.]  I wonder if we might test it in the same way we did that, that is, when we enacted the original burglary text, there was a sunset and then what happened is that it worked and people came back and either extended or eliminated the sunset.   Could I suggest that․

“[Assemblyman Nolan]:  I'm willing, I'm willing to․


“[Senator Lockyer]:  All right.   Let's adopt that amendment and․

“[Assemblyman Nolan]:  Could we say three years,․

“[Senator Lockyer]:  Well, couldn't we do whatever the same was․

“[Assemblyman Nolan]:  Well the key thing is, in order for a deterrent to work, it has to have long enough for people to be aware that those heavier penalties․

“[Senator Lockyer]:  Well, okay, let's say three.   All right, then, it's settled.”  (Remarks of Assem. Member Pat Nolan to the Sen.Com. on Judiciary, July 18, 1989 [available at Cal. State Archives], emphasis added.)

Thus, the declared purpose of amending Penal Code section 666.5, subdivision (a) and Vehicle Code section 10851 was to test the efficacy of increased punishment for a precise, measurable period.   Two implicit conditions of such an experiment are (1) a clear message to the experiment's subjects (i.e., those who commit vehicle theft) and (2) generation of a sufficiently large body of data to allow meaningful decision by the Legislature.   A mechanical application of the Estrada rule applying the lower punishment to all judgments of conviction not yet final is inconsistent with those conditions.

In order for a deterrent to be effective, and the resulting experimental period of deterrence to be of any significance, the punishment must be clearly stated and consistently carried out.   The message is very much obscured if the law allows the punishment to be higher for those convicted in 1990 and 1991 whose convictions will likely become final before 1993, but possibly lower for those convicted in 1992 whose convictions do not become final until 1993.5  We do not believe the Legislature, in enacting a statute designed to test its deterrent effect, meant to inject such uncertainty and disparate results.6  Moreover, including those defendants who committed crimes during the experimental period is necessary to secure an analysis of the results of the proposed program before abandoning, continuing or modifying the present deterrent effect of increased punishment of those convicted of vehicle theft.   It is difficult to fathom that the Legislature would deliberately signal its intention to reduce punishment several years in advance as an invitation for manipulation or at the very least, to create an opportunity for delay.

At the same time, a broad application of the Estrada rule here would lower the number of experimental cases by eliminating those who were fortunate enough (either by delays inherent in the criminal justice system or through deliberate manipulation of the system) to have committed vehicle theft within the experimental period but not have had their judgments of conviction become final until expiration of that period.   The only way the three-year period could produce meaningful results and thereby accomplish the Legislature's stated goal is to take the Legislature at its word and apply the increased penalties to all vehicle thefts committed within that period.   We conclude termination of the experimental three-year period does not entitle defendants who committed vehicle theft between January 1, 1990 and December 31, 1992, whose cases are not yet final, to a sentence more lenient than that imposed on defendants who committed the same crime between those dates but whose cases became final before January 1, 1993.   Thus, Borja is not entitled to a one-year reduction in his sentence.

The abstract of judgment is modified to reflect imposition of an upper term of five years pursuant to Penal Code section 666.5, subdivision (a).   The superior court is directed to send a copy of the modified abstract of judgment to the Department of Corrections.

The judgment is affirmed.

For reasons set forth elsewhere (see People v. Michaels (1993) 16 Cal.App.4th 459, 461–464, 20 Cal.Rptr.2d 121), I would reduce the Vehicle Code section 10851 sentence, and otherwise affirm.   As has been recognized by the dissent in Michaels (id. at pp. 465–466, 20 Cal.Rptr.2d 121), where the majority reached the result adopted herein, there is now in this division no rule whatsoever on this point.

In an earlier case (review now granted) we disagreed with a decision (review also granted) of Division Two of this district.   The effect of this disagreement was philosophical rather than practical, as trial courts within the respective counties of each division were not faced with any conflicts.   Michaels, however, (as pointed out by the dissent therein) established a conflict within this division, and thus deprived the trial courts of San Diego and Imperial counties of any appellate guidance on this point whatsoever.

The courts of appeal of California are courts of last resort, as further review is discretionary rather than a matter of right.   Resolution of conflicts among districts, or within a district or division, requires our Supreme Court to grant review in cases posing these questions.

Unfortunately, at present there is no other mechanism for obtaining uniformity of decision within a district or division, as well as among districts.   The federal circuit courts of appeal often employ en banc rehearings to settle differences within the circuits (see, e.g., United States v. Hardesty (9th Cir.1992) 977 F.2d 1347).1

Were there provision for en banc rehearings, the consequent confusion in matters such as this might be more readily avoided.   However, until such time as there is a provision for en banc rehearing within a district or a division to resolve a conflict or lack of uniformity of decision, such as is here presented by Michaels, we can do no more.

Only in the last quarter century have the courts of appeal of California expanded to comprise more than three judges, thus permitting problems of intra-division conflict to arise.2  I believe that it is now time to address this question, either by Judicial Council rule or by statute.


2.   The abstract of judgment reflects a five-year upper term for violation of Vehicle Code section 10851.   Borja was convicted here of violating Vehicle Code section 10851 and the court found he had a prior section 10851 conviction.   The abstract is modified to impose the five-year term for violation of Penal Code section 666.5, subdivision (a).

FOOTNOTE.   See footnote 1, ante.

3.   In September 1989, the Legislature, concerned with the rapid increase in vehicle thefts that had reached crisis proportions and the lack of any serious deterrent to these crimes, increased the penalties for a violation of Penal Code section 666.5, subdivision (a) to three, four and five years and for violation of Vehicle Code section 10851, subdivision (a) to two, three or four years, effective January 1, 1990.   (Gov.Code, § 9600;  Stats.1989, ch. 930, §§ 1, 9, 11.)   However, the Legislature also added a “sunset” clause providing for a return to the earlier penalties of two, three, four and sixteen months, two years or three years respectively, effective January 1, 1993.  (Stats.1989, ch. 930, §§ 9, subd. (c), 11, subd. (g);  Stats.1988, ch. 1628, § 1.)   The “sunset” clause states:  “This section shall remain in effect only until January 1, 1993, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 1993, deletes or extends that date.”   (Veh.Code, former § 10851, subd. (g);  Stats.1989, ch. 930, § 9, subd. (c).)  No later enacted statute deleted or extended that date.

4.   We recognize this issue is pending before the Supreme Court in People v. Vaughn (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152, review granted July 2, 1993 (S033325) and in In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564 review granted July 2, 1993 (S032514).

5.   This same uncertainty would apply to defendants convicted of other offenses who have sentences for convictions of Penal Code section 666.5, subdivision (a) and Vehicle Code section 10851 imposed consecutively to those terms.

6.   The uncertainty is multiplied by the possibility of conflicting appellate interpretations of what the Legislature meant in enacting Penal Code section 666.5, subdivision (a) and Vehicle Code section 10851 in the manner it did.

1.   See Federal Rules of Appellate Procedure, rule 35(a), providing for such rehearing where “necessary to secure or maintain uniformity of decision.”   The history of that rule and related provisions intended to provide “more effective judicial administration” (Textile Mills Securities Corp. v. Commissioner (1941) 314 U.S. 326, 335, 62 S.Ct. 272, 278, 86 L.Ed. 249) is ably set forth in Western Pac. R. Corp. v. Western Pac. R. Co. (1953) 345 U.S. 247, 250–253, 73 S.Ct. 656, 657–59, 97 L.Ed. 986 and also Textile Mills, supra, at pp. 327–335, 62 S.Ct. 272, 274–78.)

2.   With an efficient and timely en banc hearing procedure, of course, “the situation where two three-judge courts may reach conflicting conclusions is obviated.”  (Textile Mills Securities Corp. v. Commissioner, supra, 314 U.S. at p. 334, fn. 14.)

KREMER, Presiding Justice.

FROEHLICH, J., concur.

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