PEOPLE v. McGOWAN (1996)

Penal Code section 666.5, subdivision (a), mandates an enhanced punishment for persons who have previously been convicted of “felony vehicle theft under Section 10851 of the Vehicle Code,” or felony grand theft involving an automobile under the Penal Code, and who then are subsequently convicted of “any of these offenses.”   The central question in the published portion of this appeal is whether the phrase “felony vehicle theft” includes the taking or driving of a vehicle “without intent to steal the vehicle” under Vehicle Code section 10851.   We hold that it does not.   By its terms, the statute applies only to a “theft” of a motor vehicle and theft requires an intent to steal the vehicle.   Despite this holding, we conclude the enhanced punishment was properly imposed in this case.

A jury found defendant Lloyd T. McGowan guilty of three counts of driving or taking a vehicle with the intent to permanently or temporarily deprive the owner of title to or possession of the vehicle (Veh.Code, § 10851 [hereafter section 10851]—counts I, II, and VII) and four counts of vehicle burglary (Pen.Code, § 459—counts III through VI [all further undesignated statutory references, with the exception of section 10851, are to the Penal Code] ).   After the verdict, defendant admitted allegations he had served four prison terms (§ 667.5, subd. (b)), including one for a 1975 vehicle theft conviction under section 10851.  (§ 666.5.)   Sentenced to an aggregate, unstayed term of 13 years in state prison, defendant appeals contending the trial court committed instructional and sentencing error, and his conviction on count I is not supported by substantial evidence.   We consider the enhancements imposed under section 666.5 in the published portion of this opinion.   We address the remaining contentions in the unpublished part of the opinion and then shall affirm the judgment.

THE CRIMES

Between October 7 and October 12, 1992, and on April 14, 1993, the victims of defendant's crimes had parked their cars in various remote locations and left them to go camping or hiking.   Upon returning, the victims found their cars were either missing or had been burglarized.   We shall limit our recitation of specific facts to those matters necessary to a discussion of the issues on appeal.   We recount those facts in the light most favorable to the judgment.   (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

On October 7, 1992, Lawrence Ames and his wife, Anne, parked and locked their Honda automobile at the Duckabush trail head north of Olympia, Washington.   When they returned from hunting wild mushrooms, the car  was gone.   Evidence established that defendant was in Everett, Washington, northeast of Duckabush, two weeks prior to the theft of the Ameses' Honda.   The vehicle was later discovered in California.   This incident resulted in the section 10851 charge alleged in count I.

On October 9, 1992, Jay Messina parked and locked his Jeep Wrangler at the Leavitt Meadows trail head, in Mono County, California, near the summit of Sonora Pass.   On October 12, when he returned from backpacking with a friend, Messina discovered someone had broken into his jeep and taken items, including a checkbook with printed checks bearing his name.

A Honda belonging to Messina's backpacking partner, Timothy Warren, also was broken into between October 9 and October 12 at the Leavitt Meadows trail head.   Several items were taken from Warren's car, including a Seiko watch, a checkbook, and camping equipment.

Sometime after October 10, 1992, someone broke into Mark Newton's Isuzu Trooper, which he had parked at Leavitt Lake in Mono County before departing on a backpacking trip.   The ignition switch had been tampered with and it appeared that the thief had tried to start the vehicle with a screwdriver.   Several items were taken from the vehicle.

Between October 11 and 12, 1992, Phyllis Andrews's Honda was broken into while it was parked in Mono County in an area off Highway 108 near a road leading to Leavitt Lake.   Andrew's purse was taken, and the thief unsuccessfully attempted to start the car with a key removed from the purse.   The thief left the key, which was for the vehicle of Andrews's husband, in the Honda.   Andrews's purse and most of its contents were later recovered from a dumpster in Leavitt Meadows.

On October 12, 1992, after two days of backpacking, Michael Bucholtz returned to the Leavitt Meadows trail head in Mono County and discovered that someone had taken his Chevrolet Nova, which Bucholtz had parked at the trail head.   This taking constituted the basis for the section 10851 charge alleged in count II.

On October 13, 1992, the Ameses' Honda, which had been stolen six days earlier in Washington, was found by California Highway Patrol Officer Scott Russell at the Sonora Pass summit, in Alpine County.   The summit is accessible by car through either Tuolumne County or Mono County.   County Deputy Sheriff John Daniels responded to Russell's report of a stolen vehicle, and lifted a latent fingerprint from the rear view mirror of the Ames car.   This latent fingerprint subsequently was identified as defendant's.    Daniels also retrieved, from between the transmission console and driver's seat of the Ameses' Honda, the bottom half of a personal check.   In a nearby canyon camping area, Daniels found the matching upper portion of the check bearing Messina's name, together with a check register belonging to Messina.   At trial, Messina identified the two halves of the voided, torn check and the check register as having been stolen from his jeep.

Also on October 13, 1992, Bucholtz's Nova was found abandoned in Chehalis, Washington.   Prior to its being abandoned, the Nova was seen at the Chehalis Texaco station off Interstate 5 by Officer Randy Kaut of the Chehalis Police Department.   Officer Kaut testified that a tall, sandy-haired man wearing a green jacket and possibly a hat was standing in a telephone booth next to the Nova.   An employee of the Chehalis Texaco station testified she spoke to a tall, slender man wearing a pea-green jacket and hunting-style cap at the station on October 13 and “gave him information for a taxi.”   The witness selected defendant's picture from a photographic lineup as appearing to be the individual with whom she had spoken.¹  Later that evening, Officer Kaut received a report of a suspicious vehicle parked at a restaurant in Chehalis.   Upon arriving to investigate, the officer recognized the vehicle as the Nova he had seen earlier at the Texaco station.   Officer Kaut ran a registration check and was told the Nova had been reported stolen.   Recovered from Bucholtz's Nova were articles of clothing, camping equipment, and other items stolen from the Messina and Warren vehicles in Mono County between October 10 and October 12, 1992.

On April 14, 1993, David Curry's 1991 red Isuzu Trooper was stolen from Pfeiffer Big Sur state park in Monterey County.   The vehicle had a personalized license plate reading “MOUNTR.”   A baby seat and camping equipment were in the vehicle when it was stolen.   Some six days later defendant sold a car seat and a backpack at a store in Santa Cruz.   About the same time, friends saw defendant with a red Isuzu Trooper.   Defendant claimed he had purchased the vehicle with money saved from his social security checks.   Thereafter, defendant and his friends traveled in the Trooper to Reno, Nevada.   Eventually the vehicle got stuck on an off-road in Mono County near the Marine Corps Mountain Warfare Training Center.   The friends asked a marine to call “911” and this led to the discovery of the stolen vehicle by the police.   An officer found a personalized plate reading “MOUNTR” in the Trooper.   The taking of the Isuzu Trooper led to the section 10851 charge alleged in count VII.

Defendant did not testify.

 DISCUSSION

I–III ***

IV

Defendant committed his current offenses in 1992 and 1993.   As we shall explain, the offenses for which defendant stands convicted have been, since 1989, the subject of legislative experimentation in response to a concern over the rapid increase in motor vehicle theft this state has experienced.   At the time of defendant's offenses in 1992, section 666.5, subdivision (a), provided:  “Every person who, having been previously convicted of felony vehicle theft under Section 10851 of the Vehicle Code, or felony grand theft involving an automobile in violation of subdivision (3) of Section 487 or of Section 487h, regardless whether or not the person actually served a prior prison term for those offenses, is subsequently convicted of any of these offenses shall be punishable by imprisonment in the state prison for three, four, or five years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment.”  (Stats.1989, ch. 930, § 9, p. 3257.)   That version of the statute contained a sunset provision by which it was automatically repealed effective January 1, 1993.  (§ 666.5, subd. (c), as amended by Stats.1989, ch. 930, § 9, p. 3258.)   On that date a new version of the statute became operative.  (Stats.1989, ch. 930, §§ 9.1, 12.5, pp. 3258, 3266.)   That version of the statute, applicable to defendant's 1993 offense, was identical to the earlier version except that it deleted the reference to section 487h, and reduced the tripartite sentence range to two, three or four years.⁵

Section 666.5 is a recidivist enhancement statute.   This can be demonstrated by reference to defendant's convictions under section 10851.   At the time of defendant's 1992 offenses, a violation of section 10851 was punishable by a prison term of two, three or four years and/or a fine not to exceed $10,000, or by a jail term not to exceed one year and/or fine not to exceed $1,000.  (Stats.1989, ch. 930, § 11, pp. 3258–3259.)   The 1989 version of section 10851 in effect during 1992 contained a sunset clause and, effective January 1, 1993, that version was automatically repealed and a new  version became operative.  (Stats.1989, ch. 930, §§ 11.1, 12.5, pp. 3260, 3266.)   At the time of defendant's 1993 offense, a violation of section 10851 was punishable by imprisonment for not more than one year in the county jail, or in state prison, or by fine not to exceed $5,000 or by both the fine and imprisonment.   The unspecified state prison term resulted in a tripartite sentence range of sixteen months, two or three years.  (§ 18.)   Comparison of these provisions with the corresponding versions of section 666.5 establishes that the effects of section 666.5 are (1) to make a violation of section 10851 a felony rather than a so-called “wobbler,” which may be sentenced as a misdemeanor (§ 17, subd. (b)), and (2) to increase the tripartite sentence range and fine that may be imposed.   In these respects, section 666.5 “provides for enhancement of the sentence rather than defining a new offense.”  (People v. Young (1991) 234 Cal.App.3d 111, 113, 285 Cal.Rptr. 583.)

In connection with counts I through VII, defendant was charged with having suffered four prior felony convictions, including one in 1975 in Monterey County for the crime of “auto theft, a felony, in violation of Section 10851 of the Vehicle Code,” and with having served separate prison terms for each conviction within the meaning of section 667.5, subdivision (b).⁶  The second amended information further alleged “as to Counts I, II and VII and pursuant to Penal Code Section 666.5 that the defendant was previously convicted of a violation of California Vehicle Code Section 10851 on September 29, 1975 in the Superior Court of Monterey County.”

The court granted defendant's motion to bifurcate the trial of the enhancements and prior convictions from the trial of the substantive offenses.   After the jury found him guilty of four counts of vehicle burglary and three counts of violating section 10851 (counts I, II and VII), defendant indicated he would admit the allegations of the four prior felony convictions and prison terms.   He was advised that, by admitting these allegations, he “could receive a one-year additional sentence consecutive in prison for each prior.   And further, pursuant to [section] 666.5 on his admission to the prior which alleges a prior [section] 10851 [conviction], that will cause the 10851s he's just been convicted of [to be punishable by terms of] three-, four-, five- ․ years.”   After defense counsel indicated she had discussed this with him, defendant personally stated that he understood the consequences of his admitting the enhancement allegations.   Defendant then waived his constitutional rights and admitted the three enhancement allegations other than his conviction in 1975.

 When the court came to the allegation that defendant had been convicted of “auto theft” in 1975 and served a prison term therefor, defendant denied the charge.   But as the court prepared to submit this allegation to the jury, defendant changed his mind.   The following colloquy then took place:

“THE COURT:  And that is the prior which is alleged in the second allegation setting forth that on or about the 29th day of September of 1975 in the Superior Court of the State of California in the County of Monterey, Case Number CR–4884, conviction of the crime of auto theft, 10851, felony, all pursuant to 667.5, is that right?

“[THE PROSECUTOR]:  And also pursuant to 666.5, your Honor.

“THE COURT:  I'm sorry, and also 666.5, yeah.  [¶] ․ [¶]  So your indication is you want to change your plea from a denial to an admission;  is that right?

“THE DEFENDANT:  Yes.”

Defendant was then advised of, and waived, his applicable constitutional rights.   Thereafter, the following colloquy took place:

“THE COURT:  All right.   You understand that the maximum penalty—and Mr. [prosecutor,] I have to look to you for this.

“[THE PROSECUTOR]:  Well, what that prior does ․ is it raises the 10851s he was convicted of in Counts I, II and VII to ․ three years, four years, and five years.

“THE COURT:  Rather than 16, 24 and 36 months.

“[THE PROSECUTOR]:  Absolutely.   Then of course this prior itself could give rise to a prison commitment for one year consecutive[ly] to any sentence the Court may impose.

“THE COURT:  All right.   Do you understand that?

“THE DEFENDANT:  Yes.”

Following this admonition, defendant admitted the allegation.   Despite the fact that he admitted he had been convicted in 1975 of felony “auto theft” in violation of section 10851, and this admission was entered with his understanding that, pursuant to section 666.5, it would elevate the terms imposed for his new section 10851 convictions on counts I, II, and VII,  defendant nonetheless challenges the imposition of the elevated terms because he claims the prosecution failed to establish that he had been convicted of “vehicle theft” in either the prior 1975 case or in the current case.

Defendant points out that subdivision (a) of section 666.5 provides for elevated punishment only when a person, “having been previously convicted of felony vehicle theft under Section 10851 ․ or felony grand theft involving an automobile in violation of subdivision (d) of Section 487 or Section 487h [of the Penal Code], ․ is subsequently convicted of any of these offenses․”  (Emphasis added.)

Emphasizing the highlighted language, defendant asserts section 666.5 “does not call for increased punishment for ‘any’ previous and current ‘felony’ violation of ․ section 10851.”   This is so, he argues, because section 10851 can be violated by engaging in conduct other than vehicle theft, i.e., other than by taking an automobile with the intent to permanently deprive the owner of title to or possession of the vehicle.   It also can be violated without an intent to steal as when the defendant simply takes or drives a motor vehicle without the owner's consent and with the intention only to temporarily deprive the owner of title to or possession of the vehicle.  (§ 10851, subd. (a).)

Hence, in defendant's view, the section 666.5 enhancement applies only to “vehicle theft under Section 10851” (emphasis added) and not to a violation of section 10851 involving only the unlawful taking or driving of a motor vehicle without the specific intent to permanently deprive the owner thereof.

Accordingly, defendant urges us to reverse the elevated terms imposed on counts I, II and VII “[b]ecause neither the jury verdicts [n]or [his] admission to the [prior section 10851 conviction] are sufficient for this Court to conclude [he] was ‘previously’ or ‘currently’ convicted of felony ‘vehicle theft under Section 10851․’ ”

Defendant's contention that the elevated punishment imposed for his new section 10851 convictions (counts I, II and VII) was improper because they did not necessarily constitute convictions for “felony vehicle theft under Section 10851” (§ 666.5, subd. (a)) rests on the validity of his assertion that the Legislature intended to exclude from the application of section 666.5 other felonious conduct covered by section 10851, namely, the driving or taking of a vehicle without the owner's permission, with the intent to only temporarily deprive the owner of title or possession.   We turn to that question.

 In an effort to discern the meaning of the language of section 666.5, “our principal task is to ascertain the intent of the Legislature.  [Citation.]  We  do so by first turning to the words themselves, giving them their ordinary meaning.”  (People v. Broussard (1993) 5 Cal.4th 1067, 1071, 22 Cal.Rptr.2d 278, 856 P.2d 1134.)   A corollary rule to this fundamental rule of statutory construction “is that every word and phrase employed is presumed to be intended to have meaning and perform a useful function [citation];  a construction rendering some words in the statute useless or redundant is to be avoided.”  (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 20–21, 201 Cal.Rptr. 207.)

With these rules in mind, we begin with The Omnibus Motor Vehicle Theft Act of 1989 (Act) (Stats.1989, ch. 930, § 2, p. 3247), which added section 666.5 to the Penal Code.   As we shall see, the Legislature repeatedly drew a distinction in this Act between convictions of “motor vehicle theft” on the one hand and a generic violation of section 10851 on the other.

The Act opens with this preface:  “The Legislature finds and declares that the rapid increase in motor vehicle theft has reached crisis proportions within the state, and that there is a lucrative vehicle theft industry which has spawned the development of sophisticated criminal operations.   The Legislature further finds that the escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime, and that vehicle thieves consider sanctions under existing law merely as routine operating costs.  [¶] Therefore, 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.)

In furtherance of its stated goal of enhancing the penalties for those crimes, the Legislature by this Act amended and added several statutes dealing with motor vehicles and criminal activity.   We recount those amendments and additions which refer to section 10851.

The Legislature began by amending section 186.2, a part of the California Control of Profits of Organized Crime Act (Act), by adding “[t]heft or taking of any motor vehicle, trailer, or vessel as described in Section 487h of this code or any vehicle as described in Section 10851 of the Vehicle Code” as a form of “criminal profiteering activity.”  (Stats.1989, ch. 930, §§ 3–4, pp. 3247–3249, emphasis added.)   Next, the Act added section 487h, a special grand theft section dealing exclusively with motor vehicles, which increased the penalty over that imposed under the general grand theft statute.   Subdivision (b) of this new section provided:  “Any person who, having been convicted of two previous violations of subdivision (a), former paragraph (3) of Section 487, involving an automobile, or Section 10851 of the Vehicle Code, or any  combination, is subsequently convicted of a violation of subdivision (a) is punishable for the subsequent conviction by imprisonment in the state prison for two, three, or four years.”  (Stats.1989, ch. 930, § 7, p. 3256, emphasis added.)

The Act also amended section 499b.1, dealing with punishment for joy riding.   Two subdivisions of this amended statute concern us.   The first, subdivision (a), reads:  “Any person who, having been convicted of a previous violation of Section 10851 of the Vehicle Code, or of subdivision (3) of Section 487, involving a vehicle or vessel, and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, is subsequently convicted of a violation of Section 499b, involving a vehicle or vessel, is punishable for such subsequent offense by imprisonment in the county jail not exceeding one year or the state prison for 16 months, two, or three years.”  (Emphasis added.)   The second, subdivision (d), provides:  “Any person convicted of a violation of Section 499b, who has twice been previously convicted under charges separately brought and tried of a violation of Section 499b, all the violations involving a vehicle or vessel, and who has been previously convicted of a violation of Section 487h, former paragraph (3) of Section 487, involving an automobile, or Section 10851 of the Vehicle Code, is punishable by imprisonment in the state prison for 16 months, two, or three years.”   (Stats.1989, ch. 930, § 8, pp. 3256–3257, emphasis added.)

The Act also amended section 10851 itself.   Among other things, the Legislature increased the punishment for all forms of this offense.   Subdivision (b) of this statute is important to our inquiry.   It reads:  “Any person who, having been convicted of two previous violations of subdivision (a), former paragraph (3) of Section 487 of the Penal Code, involving an automobile, or Section 10851 of the Vehicle Code, is subsequently convicted of a violation of subdivision (a) is punishable for the subsequent conviction by imprisonment in the state prison for two, three, or four years.”   (Stats.1989, ch. 930, § 11, p. 3259, emphasis added.)

Finally, the Act amended Welfare and Institutions Code section 653.5, dealing with applications to the probation officer to commence proceedings in the juvenile court.   Subdivision (c)(4) of that amended statute provides:  “Notwithstanding the provisions of subdivision (b), the probation officer shall cause the affidavit to the taken within 48 hours to the prosecuting attorney in all of the following cases:  [¶] ․ (4) If it appears to the probation officer that the minor was 14 years of age or older at the date of the offense and the offense for which the referral was made constitutes a violation of Section 487h of the Penal Code or Section 10851 of the Vehicle Code.” (Stats.1989, ch. 930, § 12, pp. 3260–3261, emphasis added.)

  As these provisions confirm, the Legislature repeatedly used the phrase “Section 10851 of the Vehicle Code” rather than “motor vehicle theft under Section 10851 of the Vehicle Code.”   Indeed, the only reference in the Act to “motor vehicle theft” is found in section 666.5.   The omission of this limiting phrase in the other provisions manifestly reflects a legislative intent that either form of violation of Vehicle Code section 10851 will suffice for those provisions.  “[I]f a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent.”  (In re Rudy L. (1994) 29 Cal.App.4th 1007, 1011, 34 Cal.Rptr.2d 864.)   Conversely, the inclusion of that limiting phrase in section 666.5 can only mean that the enhanced punishment is limited to the theft component of section 10851.  “Where the same word or phrase might have been used in the same connection in different portions of a statute but a different word or phrase having different meaning is used instead, the construction employing that different meaning is to be favored.”  (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d 14, 21, 201 Cal.Rptr. 207.)

 As we have been at pains to emphasize, the enhancement under section 666.5 applies only when a defendant who has “been previously convicted of felony vehicle theft under Section 10851 of the Vehicle Code, or felony grand theft involving an automobile in violation of the Penal Code and who “is subsequently convicted of any of these offenses․”  (§ 666.5.)   Theft in the form of larceny is committed by “[e]very person who shall feloniously steal, take, carry, lead, or drive away the personal property of another․”  (§ 484.)  “The taking must be with the specific intent to steal, i.e., to appropriate property of another and permanently deprive him of its possession.   Unless this is proved, there is no larceny.”   (2 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Crimes Against Property, § 584, p. 660, emphasis omitted.)   This follows because in California jurisprudence, the word “theft” has consistently been construed to include an intent to permanently deprive the owner of his or her property.  (See, e.g., People v. Kunkin (1973) 9 Cal.3d 245, 251–252, 107 Cal.Rptr. 184, 507 P.2d 1392;  People v. Brown (1894) 105 Cal. 66, 69, 38 P. 518;  People v. Kageler (1973) 32 Cal.App.3d 738, 744, 108 Cal.Rptr. 235;  Jackson v. Teachers Ins. Co. (1973) 30 Cal.App.3d 341, 344, 106 Cal.Rptr. 208.)   The word has such a well-recognized and long-established meaning that its use in a statute must be construed to require an intent of permanent deprivation unless the Legislature expressly or by clear and necessary implication dictates otherwise.

Section 10851, subdivision (a), provides:  “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with the 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, ․ is guilty of a public offense․”  Thus, there is a theft component of this crime (intent to permanently deprive) and a nontheft component (intent to temporarily deprive).   By its terms, the enhancement is limited to the theft component of the crime, i.e., to “felony vehicle theft.”   Since the definitional portion of section 10851 establishes that the Legislature was well aware the section covers a broader range of conduct than theft, it would be anomalous to conclude that, in an enhancement provision dealing with this very section, the Legislature overlooked the distinction and used the term “theft” in a new meaning to include all violations of section 10851.

The Attorney General would read the word “theft” out of the enhancing statute.   He argues that in accordance with the stated purpose of the Omnibus Motor Vehicle Theft Act of 1989, all felony violations of section 10851 were intended by the Legislature to be covered as “felony vehicle theft” violations.   This argument fails to account for the words and thus violates a paramount rule of statutory construction.   If you ignore the words, you abandon a principled way of reading statutes.

The Attorney General's argument also fails to explain why the Legislature would have added the word “theft” if it did not mean theft.   If indeed the Legislature had intended the enhancement to apply to all violations of section 10851, as the Attorney General argues, it would simply have said:  “Every person who, having been previously convicted of a felony under Section 10851 of the Vehicle Code, ․”  The Legislature certainly knew how to do this.   Indeed, in this very Act, as we have noted, it referred to “Section 10851 of the Vehicle Code” not less than six times without any mention of “vehicle theft.”   These provisions thus make no distinction between “vehicle theft” and nonvehicle theft under section 10851.   The important thing to note here is that the Legislature did not limit these provisions to cases involving “vehicle theft” as it did in the case of enhanced punishment under section 666.5.   It simply applied the increased punishment to all violations of section 10851, whether of the theft or nontheft variety.

Subdivision (b) of section 666.5 provides an additional indication of legislative intent.   This subdivision provides:  “The existence of any fact which would bring a person under subdivision (a) shall be alleged in the information or indictment and either admitted by the defendant in open court, or found true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.”   If the application of the enhanced sentencing scheme under section 666.5 were simply a matter of finding prior convictions, then subdivision (b) would be surplusage since sections 969, 969a,   9691/212, 1158, make provision for the pleading and proving of prior felony convictions.   But not only did the Legislature include a provision for pleading and for proof of the enhancement factors under section 666.5, it did so in a manner which clearly recognized the need for adjudication of facts additional to mere proof of current and prior convictions.

All this shows, irrefutably in our judgment, is that the Legislature clearly understood the distinction between “felony vehicle theft under Section 10851” on the one hand and a violation of “Section 10851 of the Vehicle Code” on the other.

 The Attorney General's argument implicitly assumes that the Legislature did not know what it was saying when it added the theft limitation to section 666.5.   That assumption is refuted by the use of inclusive phraseology in all the other parts of the Act.   It also conflicts with a fundamental rule of construction that reviewing courts “must assume the Legislature knew what it was saying and meant what it said.”  (Rideout Hospital Foundation, Inc. v. County of Yuba (1992) 8 Cal.App.4th 214, 221, 10 Cal.Rptr.2d 141.)   It might conceivably be the case, as the Attorney General's argument suggests, that the phrase “motor vehicle theft” was a slip of the Legislature's pen.   But the short answer to such an hypothetical claim is that “ ‘[t]he rectification of linguistic slippage is generally a legislative function.’ ”  (2A Sutherland, Statutory Construction (5th ed. 1992) § 47.37, p. 284, fn. omitted.) ⁷

 For all of these reasons, we hold that section 666.5 applies only to a violation of section 10851 involving the taking of a vehicle with the intent to steal.   So construed, we turn to defendant's contentions.

 Despite our holding, defendant's conviction in 1975 for violating section 10851 provides the first component necessary for a section 666.5 enhancement because he admitted this conviction was for felony “auto theft.” ⁸  “A plea of guilty admits every element of the offense charged [citation], all allegations, and factors comprising the charge contained in the  pleading.”  (People v. Tuggle (1991) 232 Cal.App.3d 147, 154, 283 Cal.Rptr. 422;  see also People v. Mendias (1993) 17 Cal.App.4th 195, 204, 21 Cal.Rptr.2d 159.)   By the same token, an admission of a sentence enhancement allegation is deemed to constitute a judicial admission of every element of the charged enhancement.  (People v. Thomas (1986) 41 Cal.3d 837, 844, 226 Cal.Rptr. 107, 718 P.2d 94;  People v. Bowie (1992) 11 Cal.App.4th 1263, 1266, 15 Cal.Rptr.2d 22.)   Not only did defendant admit to having been convicted of a prior offense characterized by the information as “auto theft,” he did so having been advised that the consequence of this admission would be the elevation of his sentence on his new section 10851 convictions, pursuant to section 666.5.

 Having rejected defendant's claim that the prior conviction was not proved, we turn to his contention the current convictions do not necessarily establish that he was convicted of felony violations of “vehicle theft under Section 10851 of the Vehicle Code.”  (§ 666.5.)   The jury returned verdicts finding defendant guilty of three counts of “Violation of Section 10851 of the Vehicle Code, Laws of the State of California, (theft of a vehicle).”   Defendant argues that these verdicts do not reflect a finding that the takings constituted theft because the jury was never instructed that it had to make an express finding as to which version of section 10851 had been violated.   Because it is impossible to ascertain whether the jury's verdict rested on vehicle theft involving a specific intent to steal, the argument goes, the error was prejudicial and the additional punishments imposed under section 666.5 must be stricken.

We are guided in our examination of this claim of enhancement error by People v. Wims (1995) 10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77.   There the trial court failed to instruct the jury as to the factual elements necessary to support a sentence enhancement for use of a deadly and dangerous weapon under section 12022, subdivision (b).   The high court held that “failure to instruct the jury as to all elements of section 12022(b) is prejudicial only where it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error.    (People v. Watson (1954) 46 Cal.2d 818, 836 [299 P.2d 243].)”  (Id. at p. 298, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   In reaching that conclusion, the Wims court preliminarily held that the error did not violate the federal Constitution.   First, the error did not deprive defendants of their Sixth Amendment right to a jury trial because an enhancement is a sentencing factor, not a substantive offense.  “State law, not the federal Constitution, is the source of defendants' right to a jury trial on section 12022(b) allegations, and the state right, moreover, is conditional on the underlying offense being tried to a jury.  (See § 969c.)   There simply is ‘no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.’   (McMillan v. Pennsylvania (1986) 477 U.S. 79, 93, [106 S.Ct. 2411, 2419–2420, 91 L.Ed.2d 67] citing Spaziano v. Florida (1984) 468 U.S. 447, 459 [104 S.Ct. 3154, 3161–3162, 82 L.Ed.2d 340].)”  (Id. at p. 304, 41 Cal.Rptr.2d 241, 895 P.2d 77, fn. and parallel citations omitted.)   Second, the error did not deprive defendants of their federal constitutional right to equal protection of the law.   Defendants had argued that since the enhancement allegations would result in an additional loss of liberty, equal protection required the same fact-determination process applicable to defendants facing a loss of liberty for substantive offenses.   The court made short shrift of that argument, noting that a defendant convicted of substantive offenses has a substantially diminished liberty interest at risk with respect to sentencing determinations and is not similarly situated to persons who have not yet been convicted.  (People v. Wims, supra, 10 Cal.4th at pp. 313–314, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   Third, the error did not deprive defendants of any federal due process right.   The Wims court rejected defendants' claim that the trial court's error arbitrarily deprived them of a state-created liberty interest in the exercise of jury sentencing discretion in contravention of Hicks v. Oklahoma (1980) 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175.   Hicks was convicted in Oklahoma of distributing heroin under a charge of being an habitual offender.   In Oklahoma, punishment is fixed by the jury and Hicks was convicted of a substantive offense for which the jury could have imposed any sentence of not less than 10 years.   However, under the habitual offender statute, the jury was instructed to and did impose a 40–year sentence.   The habitual offender statute was declared unconstitutional in an unrelated case.   In Hicks's appeal, the appellate court agreed the statute that required a 40–year sentence was invalid but found no prejudice because the 40–year term received by Hicks was within the range of sentence that could have been imposed by the jury.   The appellate court upheld the 40–year sentence without purporting to cure the deprivation by itself considering the appropriateness of the sentence.   Thus, in Hicks no tribunal exercised sentencing discretion.   The jury did not exercise discretion because it was instructed pursuant to an invalid statute that it was required to impose a 40–year sentence, and the appellate court did not attempt to cure the error itself.

In these circumstances, the United States Supreme Court found a federal due process violation.   The habitual criminal statute providing for jury  sentencing gave the defendant a legitimate expectation of the exercise of jury discretion that the Fourteenth Amendment preserves against arbitrary deprivation by the state.  (Hicks v. Oklahoma, supra, 447 U.S. at p. 346, 100 S.Ct. at pp. 2229–2230, 65 L.Ed.2d at p. 180.)   Although pursuant to its authority to “reverse, affirm or modify” a judgment, the Oklahoma appellate court might have been able to cure the deprivation by itself considering the appropriateness of the sentence, it did not purport to do so.   (Id. at pp. 346–347, 100 S.Ct. at pp. 2229–2230, 65 L.Ed.2d at p. 180.)

Further exposition of the Hicks problem occurred in Clemons v. Mississippi (1990) 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725.   In that death penalty case the jury was instructed with respect to two aggravating circumstances, one of which (that the murder was especially heinous, atrocious, or cruel) was later found invalid.   The United States Supreme Court held that as a matter of federal constitutional law the invalidity of one of the aggravating factors did not necessarily require a new sentencing trial before a jury.   In such circumstances, the federal Constitution would be satisfied by either (1) appellate reweighing of the aggravating and mitigating evidence or (2) harmless error review.  (Id. at p. 741, 110 S.Ct. at p. 1444, 108 L.Ed.2d at p. 733.)   In so holding, the court made unmistakably clear there is simply no constitutional right to a jury trial with respect to sentencing regardless of whether the sentence turns on specific findings of fact, involves sentencing discretion, or involves the death penalty.  (Id. at p. 746, 110 S.Ct. at p. 1447, 108 L.Ed.2d at p. 736.)   What is at issue is the Fourteenth Amendment's guarantee of due process which prevents the arbitrary denial of procedural safeguards accorded to a defendant by state law.   The Clemons court noted that the Hicks decision “suggest[ed] that appellate sentencing, if properly conducted, would not violate due process of law” and concluded that appellate sentencing is one permissible way of curing errors in jury sentencing determinations.  (Id. at p. 747, 110 S.Ct. at p. 1447, 108 L.Ed.2d at p. 737.)   The court also concluded that harmless error review would suffice, provided it is performed in an individualized rather than automatic or mechanical fashion.  (Id. at p. 753, 110 S.Ct. at pp. 1450–1451, 108 L.Ed.2d at p. 741.)

 The important points established in Hicks and Clemons are that with respect to sentencing matters, including enhancement findings, (1) the constitutional question is not one of a jury trial right but is a matter of due process of law, and (2) with respect to due process, state appellate courts do not merely review the trial proceedings to determine whether the defendant was accorded due process in the trial court, but are themselves part of the process and in an appropriate case may supply ingredients of due process that would otherwise be lacking.   The Wims court applied this reasoning and concluded that the statutory right to a jury trial on enhancement findings is qualified by the duty of appellate courts to apply the “miscarriage of justice” standard of article VI, section 13 of our state Constitution.  (10 Cal.4th at p. 310, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

 As the Wims court explained, “[d]efendants here suffered no deprivation of state-mandated jury discretion analogous to that suffered by the defendants in Hicks.   Defendants were not entitled under section 12022(b) to jury sentencing discretion;  at most they were entitled to a jury finding on whether the section 12022(b) enhancement was true․  [¶]  The high court has made plain that Hicks does not invalidate every true finding rendered on a sentencing provision when the jury has received flawed instructions.  (See Clemons v. Mississippi (1990) 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725.)   In Clemons, the court held the federal Constitution does not prevent a state appellate court from upholding a death sentence imposed by a jury ‘that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review․’  (Clemons v. Mississippi, supra, 494 U.S. at p. 741, 110 S.Ct. at p. 1444, 108 L.Ed.2d at p. 733.) ․ [¶]  The high court's reasoning in Clemons applies to California's scheme for section 12022(b) sentence enhancements.   Defendants' state statutory right to jury findings on a section 12022(b) enhancement is constitutionally qualified by the duty of California appellate courts to examine ‘the entire cause’ when any ‘misdirection of the jury’ is alleged and to affirm the judgment absent a ‘miscarriage of justice.’  (Cal. Const., art. VI, § 13.)   Contrary to defendants' suggestion, therefore, if we examine the record of this trial to determine whether the instructional error resulted in a miscarriage of justice, we do not engage in any impermissible attempt to ‘substitute’ our determination for the jury determination a defendant may claim under section 969c.   Indeed, the possibility of such a corrective appellate determination is inherent in the state statutory scheme for jury determination.   When rendered, such appellate review complements, and thus affords, defendants their full jury rights and, thus, due process of law under Hicks.”  (People v. Wims, supra, 10 Cal.4th, at pp. 310–311, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

Because the trial court's failure to instruct on the elements of section 12022, subdivision (b), did not deny defendants any federal constitutional rights, the Wims court held the resolution of that error was a matter of state law.   The governing provision of state law is found in article VI, section 13 of the California Constitution, which provides:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”   Consequently, the Wims court reasoned, “the trial court's failure to instruct on the elements of a section 12022(b) sentence enhancement is ‘misdirection of the jury’ for which we are constitutionally  forbidden to reverse absent a ‘miscarriage of justice.’  (Cal. Const., art. VI, § 13.)  [¶] The test for harmlessness we articulated in People v. Watson [1956] 46 Cal.2d 818 [299 P.2d 243], which gives effect to the constitutional provision is ‘generally applicable under current California law.’  (See People v. Cahill [1993] 5 Cal.4th [478] at p. 492 [20 Cal.Rptr.2d 582, 853 P.2d 1037].)   Under Watson, the trial court's judgment may be overturned only if ‘if is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error.’  (People v. Watson, supra, 46 Cal.2d at p. 836 [299 P.2d 243].)  ‘In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.’ ”   (People v. Wims, supra, 10 Cal.4th at p. 315, 41 Cal.Rptr.2d 241, 895 P.2d 77.)

 The California constitutional provision governing reversals in criminal cases necessarily qualifies any state statutory right provided a criminal defendant and its clear language does not permit state appellate courts to apply per se reversal rules except where required by the supremacy clause as a matter of federal constitutional law.⁹  Since the United States Supreme Court has held that there is no constitutional right to a jury trial in sentencing matters and that in an appropriate case infringement on state statutory jury trial rights may be cured by either appellate sentencing or harmless error review, it follows that our state Constitution requires that to the extent feasible appellate courts cure such errors through harmless error review.¹⁰   For these reasons, we conclude the California constitutional standard of harmless error should apply to the enhancement error in this case.¹¹

 Applying that standard here, we find the error in this case was harmless because the only reasonable inference to be drawn from the evidence is that defendant intended to deprive the owners permanently of their possession of the vehicles.   First of all, defendant was a chronic thief.   He repeatedly broke into vehicles and either stole the contents or unlawfully took the entire vehicle.   Second, the manner of the taking of the vehicles is consistent only with an intent to steal, that is, with an intent to permanently deprive the owners of their possession of the vehicles.   The Ames vehicle was illegally taken from a trail head near Olympia, Washington, driven hundreds of miles southward across at least two state boundaries and then abandoned on a mountain pass in Alpine County, California.   The plastic housing between the front seat running up under the dashboard had been torn completely apart.   The Bucholtz vehicle was stolen from a trail head in Mono County, California, and was driven hundreds of miles northward across at least two state lines and then abandoned in a small town in the State of Washington.   The door lock on the passenger side had been punched out.   Defendant took the Curry vehicle from a state park in Monterey County, lied about having purchased it, sold some of its contents, and then drove it to Reno, Nevada.   He later abandoned the vehicle and fled from the scene when the Trooper became struck in an isolated off-road area in Mono County.   The dashboard of the Trooper had been completely torn apart and a window on the right side had been broken out.   The manner of these takings is not reconcilable with an intent merely to deprive the owners of their vehicles temporarily.   Finally, the case was neither prosecuted nor defended on the theory that the takings may have been temporary.   The prosecutor repeatedly called defendant a “thief” and consistently characterized the vehicles as “stolen.”   Indeed, even defense counsel referred to the vehicles as “stolen.”   The thrust of the defense was that there was no eye witness identification of defendant and consequently the case against him was entirely circumstantial.   No claim was ever advanced by the defense that the takings were or might have been merely temporary.   As the prosecutor put it in his closing argument, “Take a  look and look at it.   There's no other conclusion that can be reached based on the evidence.   There's evidence that [defendant] stole these vehicles.”   We agree with this assessment of the evidence.

For all of these reasons, we conclude that the court's failure to instruct on the two versions of section 10851 for purposes of the enhanced sentence under section 666.5 was harmless.   Under these circumstances, defendant's sentence on the section 10851 counts were properly enhanced under section 666.5.

V & VI ***

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   When he was arrested in Mono County on April 21, 1993, following the theft of another vehicle, defendant was wearing a green military jacket and a camouflage cap.

FOOTNOTE.   See footnote *, ante.

5.   After the commission of defendant's offenses, section 666.5 was amended by urgency legislation effective October 11, 1993, and again in 1995.  (Stats.1993, ch. 1125, §§ 10, 18;  Stats.1995, ch. 101, § 1.)   We are here concerned with the meaning of “felony vehicle theft under Section 10851 of the Vehicle Code” as that phrase is used in the statute, and each of the versions of section 666.5 that has been in effect has utilized that phrase in referring to convictions under the Vehicle Code.

6.   Section 667.5, subdivision (b), provides in pertinent part:“[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”

7.   We have previously noted (supra, fn. 5), that section 666.5 was amended in 1995, effective January 1, 1996.   The new version of section 666.5 continues to refer to “felony vehicle theft under Section 10851” as we have discussed it.   However, a new version of section 10851 was also enacted in the 1995 legislation.   In subdivision (b)(2), the new version of section 10851 provides, among other things:  “Any person who has been convicted of one or more previous felony violations of this section, ․ is punishable as set forth in Section 666.5 of the Penal Code.”  (Stats.1995, ch. 101, § 3.)   We express no opinion whether this provision constitutes legislative rectification of linguistic slippage with respect to violations of section 10851 committed after its effective date;  it cannot be applied to defendants' crimes that were committed in 1992 and 1993.

8.   It is true that the allegation charging a section 666.5 violation in the information did not refer to “auto theft”;  instead, it referred only to a “violation of Section 10851 of the Vehicle Code.”   The charged enhancement under section 667.5 for the same prior offense did, however, allege that the conviction was for “auto theft” and defendant admitted that charge.   In light of the admonitions given upon the entry of his admissions, these combined admissions were sufficient to establish that the prior conviction in question was for the “theft” version of section 10851.Absent an admission that the prior conviction involved the theft version of section 10851, the determination of whether a prior conviction involved conduct that gives rise to a section 666.5 enhancement is a factual question to be proven by reference to the records of the prior proceeding.  (See People v. Guerrero (1988) 44 Cal.3d 343, 354, 243 Cal.Rptr. 688, 748 P.2d 1150;  see also People v. Myers (1993) 5 Cal.4th 1193, 1200, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

9.   Of course, some types of errors may be of such a nature that a miscarriage of justice will inevitably be found, but in such cases reversal is required because after a review of the case the appellate court cannot find the error harmless rather than by rote application of a per se rule regardless of apparent prejudice.   Thus, for example, a complete lack of notice and opportunity to contest the allegation would be of such a nature that appellate review of the factual record cannot cure the harm.  (See People v. Wims, supra, 10 Cal.4th at p. 311, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   No such claim is advanced here.

10.   It is implicit in the federal authorities that the means by which an appellate court may cure error in sentencing matters must be legally authorized by state law in some manner, whether by state constitution, statute, or judicial decision.  (Clemons v. Mississippi, supra, 494 U.S. at p. 747, 110 S.Ct. at pp. 1447–1448, 108 L.Ed.2d at p. 737.)   In this state, appellate courts have limited factfinding authority which has not been extended to criminal sentencing issues.  (See Cal. Const., art. V 1, § 11;  Code Civ.Proc., § 909;  Cal.Rules of Court, rule 23;  see generally 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 649 et seq., pp. 631–638.)   And in Wims, the court did not hold that appellate courts should engage in factfinding or appellate sentencing in order to cure error with respect to enhancement issues.   (People v. Wims, supra, 10 Cal.4th at p. 310, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   Accordingly, the first method by which error in sentencing matters may be cured is not available in this state.

11.   In Wims, the jury found the enhancement allegation to be true without being instructed as to the factual elements necessary to make such a finding.  (People v. Wims, supra, 10 Cal.4th at pp. 302–303, 41 Cal.Rptr.2d 241, 895 P.2d 77.)   In contrast, the jury in this case did not make any separate findings concerning the enhancement.  (See § 666.5, subd. (b).)  Instead, the jury returned verdicts finding defendant guilty of three counts of violation of section 10851, each described in the verdicts as “theft of a vehicle,” without being instructed on the version of the offense necessary to come within the enhancement.   But where, as here, the evidence is uncontradicted and permits only one reasonable inference, the distinction between a flawed finding and an ambiguous verdict does not change the harmless error analysis.   In both cases even had the court correctly instructed the jury on the requirements of the enhancement, it is not reasonably probable that the result would have been more favorable to the defendants.

FOOTNOTE.   See footnote *, ante.

 SPARKS, Acting Presiding Justice.

DAVIS and SCOTLAND, JJ., concur.