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

The PEOPLE, Plaintiff and Respondent, v. Paul MICHAELS, Defendant and Appellant.

No. D017862.

Decided: June 09, 1993

Steven Schorr, La Jolla, 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., Keith I. Motley and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

This case presents the issue of whether the penalties for Vehicle Code section 10851, subdivision (a),2 which were provided by statute for offenses committed between January 1, 1990 and December 31, 1992, must be reduced for persons whose cases were not final as of the end of 1992.   In the published portion of this opinion (pt. I), we reject the holding of a different panel of this court in People v. Vaughan (1993) 15 Cal.App. 4th 1124, 19 Cal.Rptr.2d 152 (lead opn. of Nares, J.), and adopt the better reasoned view of In re Pedro T. (1993) 14 Cal.App. 4th 453, 17 Cal.Rptr.2d 564, decided by Division Two of this district.   In the unpublished portion of the opinion, we reject the other contentions raised by this appeal and affirm the judgment.


Paul Michaels appeals the judgment on his conviction for unlawfully taking or driving another's vehicle.  (§ 10851, subd. (a).)

On July 23, 1992, National City police arrested Michaels for driving a stolen car.   Michaels entered a negotiated guilty plea to taking or unlawfully driving a stolen vehicle.   The court revoked probation on an unrelated offense.   On October 26, 1992, the court sentenced Michaels to serve the two-year lower term for the driving or taking of the stolen car and ordered that he pay the victim $450 restitution.   The court imposed a concurrent term on the offense for which it had revoked probation.   Michaels contends his sentence must be reduced since effective January 1, 1993, the lower term for violating section 10851, subdivision (a) is 16 months, and that the court erred in failing to hold a restitution hearing.   We reject both contentions.



Relying on In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, Michaels argues the lower term for violation of section 10851, subdivision (a) became 16 months effective January 1, 1993.

In 1989 the Legislature increased the penalties for violation of section 10851, subdivision (a) to two, three, or four years effective January 1, 1990.   The Legislature added a “sunset clause”, providing for a return to the earlier penalties of sixteen months, two years, or three years effective January 1, 1993.  (Stats.1989, ch. 930, §§ 11–11.1, pp. 3258–3260, 12.5, p. 3266;  see Review of Selected 1989 California Legislation (1989) 21 Pacific L.J. 331, 425–427.)

We have recently reviewed this issue and published an opinion on the subject.   Disagreeing with Division Two of our district (in its decision in In re Pedro T., supra, 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564), a majority of our court concluded that any case not final upon the effective date of the “sunset clause” should be governed in terms of sentencing choice by the prior more lenient provisions.  (People v. Vaughan, supra, 15 Cal.App. 4th at p. 1129, 19 Cal.Rptr.2d 152 (lead opn. of Nares, J.).)3

After careful analysis, we decline to follow the reasoning of the majority in Vaughan because we have concluded it is simply wrong.   The majority in Vaughan relied principally on Bell v. Maryland (1964) 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 and on In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948 in ruling on the same issue that is before us.   We do not quarrel with these authorities;  we simply find them inapposite to this case.  Bell dealt with an outright repeal of the underlying offense by the state legislature during the pendency of the criminal appeal (Bell v. Maryland, supra, 378 U.S. 226, 84 S.Ct. 1814), while in In re Estrada, supra, 63 Cal.2d at page 745, 48 Cal.Rptr. 172, 408 P.2d 948, the California Supreme Court established that legislative repeal of a statute or reduction of the punishment for an offense in the absence of a savings clause entitles a defendant who has a case pending on appeal at the time of that legislative action to retroactive benefit.  (See also Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434;  People v. Vasquez (1992) 7 Cal.App.4th 763, 767–768, 9 Cal.Rptr.2d 255.)

Neither Bell nor Estrada, however, is controlling on the facts before us.   In each, the respective Legislature made a determination to either repeal an offense, or to modify the sentencing structure by reducing the punishment.   Although statutes are normally presumed to operate prospectively, where the Legislature in a new statute has determined to repeal an offense or to reduce its punishment, the courts have determined that such is a legislative finding of limited retroactivity.  (See In re Estrada, supra, 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

When the Legislature increased the penalties for violation of section 10851, subdivision (a) in 1989 and added the sunset clause providing for a return to the earlier penalties effective January 1, 1993, the statute enacting the change provided in part:

“The Legislature finds and declares that the rapid increase in motor vehicle theft has reached crisis proportions[;]  ․ the escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime [;  and] ․ the Legislature believes that it is in the best interest for public safety to enhance the penalties for the crimes of vehicle theft and receiving stolen vehicles.”  (Stats.1989, ch. 930, § 1, pp. 3246–3247.)

 Clearly, by enactment of the amendment and the sunset clause provision here, the Legislature attempted to experiment with a set three-year period of increased punishment for vehicle thefts, thus distinguishing this case from those in which the Legislature has made an express determination to either repeal a statute or to reduce the punishment for the offense.   Thus, we believe the addition of a sunset clause to a statute with a declared purpose of its amendment, such as the one here, constitutes a “savings clause” within the meaning of In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, and should not be applied retroactively.

To hold otherwise, as did the majority in Vaughan, or as we might be urged to do for the sake of uniformity, treats a sunset provision as a legislative determination that existing punishments for vehicle thefts are too harsh, thereby requiring a reduction in sentence.   As discussed in In re Pedro T., supra, 14 Cal.App. 4th at page 465, 17 Cal.Rptr.2d 564, this determination is not reasonable and renders bizarre results by the sheer fortuity of delay in the criminal justice system, in addition to the possible abuses by the “canny criminal” or astute defense attorney.  (Ibid.)

This case is but one example of vehicle theft being committed during the three-year period for increased punishment for that crime where the legislatively determined punishment would not be imposed due to the mere passage of time.   Michaels committed his crime in July 1992 during a period of time in which our Legislature had determined the lower term of punishment would be two years.   Under the theory adopted by the majority in Vaughan, able counsel would have known at the time of Michaels's arraignment that delay would reward him with an unearned sentence reduction.   Further, more cases are pending before us, awaiting decision on the same or similar issues.   Following the reasoning of Vaughan, a defendant who committed a vehicle theft after January 1, 1990, really has had little to do but stall, either in the trial court or on appeal, to assure that the increased penalties of the statute will not apply to his or her case.

Apply this interpretation, established in Vaughan, to any criminal case in which the Legislature has determined an increased punishment should be imposed for a set, limited period and the absurd results multiply.   If offenders are allowed to escape enhanced punishment merely by delaying their cases, intentionally or not, until a lesser punishment kicks in, very few criminals will suffer the legislatively determined punishment for their actions, thereby rendering such legislative enactments futile.   Certainly this is not what the Legislature intends when it enacts a statute with a sunset provision.  (See In re Pedro T., supra, 14 Cal.App.4th at pp. 465–466, 17 Cal.Rptr.2d 564.)

Finally, another reason why Vaughan should not be followed is best expressed by the words of the majority in that case after having reduced the sentence:

“․  Having done this, however, we must also state that we deem the result neither just nor economical, but simply one compelled by the law.   The hundreds of cases to which this holding will be applied represent wasted trial and appellate court resources in what would otherwise, as here, have been relatively uncomplicated proceedings.   The waste of resources will also extend to the Department of Corrections, who will be required to alter and update records and adjust parole dates in all these cases.”  (People v. Vaughan, supra, 15 Cal.App.4th at p. 1130[, 19 Cal.Rptr.2d 152] (lead opn. of Nares, J.), fn. omitted.)

To these sentiments we offer a hearty “Amen!” and emphasize the problems expressed by the majority in Vaughan are caused because the result reached in that case is wrong.

We are not unsympathetic to the concerns expressed by Justice Froehlich in his dissent in Vaughan and his dissent in this case.   Indeed, this court should always be mindful of the possibility of conflicting opinions and the mischief they may visit upon trial courts within this division.   We reject, however, the view that the principle of uniformity is so weighty in this instance as to overcome all other concerns.

We first note the filing of Vaughan by one panel of this eight-justice division is simply a happenstance of timing.   If the opinion in the current case had been prepared first, it would serve as the guidepost for achieving the desired uniformity.4  The opinion in Vaughan is newly filed;  it is not yet final.   As we have pointed out, it is inconsistent with the published decision of Division Two of this court in In re Pedro T.   We recognize the issues presented by these conflicting authorities will undoubtedly be resolved by the Supreme Court.   Thus, where precedent of our division is new, inconsistent with another division or district of the Courts of Appeal, and where we have an honest, fundamental disagreement with the two justices who formed the majority of that new precedent, we do not believe concepts of stare decisis or of general uniformity compel us to adhere to that earlier decision of this division.   Further, as this emerging issue reaches other Courts of Appeal and ultimately the Supreme Court, articulation of honestly held disagreement should ultimately serve to assist in focusing the issues for the final arbiter of California law.   In any event, for the reasons stated, we decline to follow Vaughan and accept the reasoning of the opinion in In re Pedro T., thereby rejecting Michaels's contention he is entitled to a reduction of his sentence.

II *


The judgment is affirmed.

I respectfully dissent from the published portion of the majority's opinion.   The issue we face is the effect of an automatic modification in the penalty for violation of Vehicle Code section 10851, subdivision (a).   This comes about as the result of the sunsetting of a sunset clause included in a three-year test by the Legislature of a scale of increased penalties.   When the three-year period ends, and no extension of the increased penalties is enacted, what is the effect upon persons convicted of the crime whose cases are not yet final?  In re Pedro T. (1993) 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564 says that the law in effect at the time of the commission of the crime governs.  People v. Vaughan (1993) 15 Cal.App.4th 1124, 19 Cal.Rptr.2d 152 says that the law in effect when the case becomes final is applicable.   Now, in this case, the majority determines to cast its lot with Pedro T. rather than Vaughan, thus adding not only divergence among divisions of the same district of a Court of Appeal, but creating disagreement among panels of the same division.

If I had to choose which line of reasoning represents the best, I would side with Pedro T. and the majority in this case.   However, as my dissent in Vaughan suggests, I think it appropriate to accord some considerable deference to the concept of precedence.   The thrust of the dissent in Vaughan was not criticism of the substance of the majority opinion, but disapproval of its failure to accept as guiding precedent the well-reasoned earlier decision of a co-equal court.   The result of Vaughan was that, at least for the temporary period elapsing before Supreme Court attention can be focused on the matter, a different sentencing rule will prevail in one division of District Four from that in force in another.

The majority in this case has complicated this problem.   We now have two directly opposite determinations of an identical issue in the same division.   We should take note of the fact that the issue in question is not one which arises infrequently, and which can mellow and age with repose until a higher authority considers it.   Sentencing under Vehicle Code section 10851 goes on, I would suppose, every day in our trial courts.   Some seventy-five superior court judges in our division (not counting municipal court judges sitting as superior court judges) will now have to determine whether to impose two years or three years as the midterm for conviction of this crime, for cases arising within the three-year test period and not yet final.   How can they possibly make an intelligent selection of result when commanded by two opinions of their appellate court which are completely conflicting?   I would not be surprised to see this dilemma resolved by an open court coin flip.

Of course, not only judges, but counsel and clients, will be perplexed by the problem of our conflicting authorities.   In every case that is decided on this issue someone will have to appeal—either the defendant (when the trial court follows Pedro T. and the majority in this case) or the Attorney General (when the trial court follows Vaughan ).   Assuming adherence to our new principle of free diversity, the result on appeal will depend upon the makeup of the specific panel of jurists chosen to review the case.   In that this choice is made strictly by lot, a defendant's sentence will now be either two or three years, assuming midterm, based totally on chance.   I respectfully suggest that it is better to have a uniform rule on which there is not complete agreement than to adopt conflicting contemporaneous rules.

I cannot leave this brief dissent without remarking that the conduct of my esteemed colleagues creates one more judicial conundrum:  I have participated in two panels of this court within one month which have addressed the same legal issue and have come to opposite conclusions, and I have dissented from both of them.   Perhaps my discomfort in contemplating this seemingly irrational result can be mitigated by the realization that I have but joined my brethren in terms of reasoned and intentional inconsistency.


2.   All statutory references are to the Vehicle Code unless otherwise specified.

3.   Our dissenting colleague also dissented in People v. Vaughan and criticized the majority there for creating doubt and confusion as to the correct rule of law.   Although Justice Froehlich now dissents in this case, contending we should adhere to Vaughan in the interest of avoiding confusion of the trial courts in this division, we think his original arguments as to the wisdom of following In re Pedro T., supra, 14 Cal.App.4th 453, 17 Cal.Rptr.2d 564 were correct.

4.   We mean no criticism of the panel that decided People v. Vaughan, nor do we intend to imply any inappropriate race to filing.   Rather, we merely argue uniformity concerns do not automatically arise with the filing of the first opinion.

FOOTNOTE.   See footnote 1, ante.

HUFFMAN, Associate Justice.

TODD, Acting P.J., concurs.