Opinion
E065918
08-18-2020
THE PEOPLE, Plaintiff and Respondent, v. JULIAN MICAH BULLARD, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Meagan J. Beale, Michael R. Johnsen, and Samuel P. Siegel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1200894) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Reversed and remanded with directions. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Meagan J. Beale, Michael R. Johnsen, and Samuel P. Siegel, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Julian Micah Bullard appeals from an order of the superior court denying his petition (Pen. Code, § 1170.18) to reduce his felony conviction for unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) to a misdemeanor under the Safe Neighborhoods and Schools Act (Proposition 47). (Pen. Code, § 1170.18.) The California Supreme Court granted review of our court's 2016 opinion affirming the trial court's order, and recently transferred the cause back to us to determine whether a remand to the superior court is required for a determination of the vehicle's value. (People v. Bullard (2020) 9 Cal.5th 94, 110 (Bullard).) We permitted the parties to file supplemental briefing in response to the Supreme Court's order.
Defendant argues a remand is unnecessary because when he pleaded guilty to unlawfully driving or taking a vehicle in 2012, he stipulated the factual basis for the plea was the police report, and the police report indicates the value of the vehicle was less than $950. He urges us to make the factual determination in the first instance, given that he "has long since been released from custody on this case, and since Senate Bill [No.] 136 has made it so this prior prison term can no longer serve to enhance any future sentence [he] may be ordered to serve."
The People agree that the only issue remaining in this case is whether the value of the vehicle defendant took was over $950 but oppose defendant's request that we make that determination in the first instance. Instead, the People argue the appropriate remedy is for us to remand the matter to the superior court so that it can make that factual determination in the first instance. The People further assert that if we disagree, remand would still be appropriate so that the trial court can grant defendant's resentencing petition. For the reasons explained, we reverse the trial court's order denying defendant's petition to reduce his felony conviction for unlawful driving or taking a vehicle and remand the matter for further proceedings.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report.
In April 2012, defendant stayed overnight at his girlfriend's residence in Apple Valley, California. On the morning of April 11, 2012, defendant took his girlfriend's car keys from her purse without her permission and took her 1993 Lincoln Towncar while she was not home. Later that night, hours after his girlfriend reported the vehicle stolen, defendant agreed to meet his girlfriend and return her vehicle. Police were waiting for defendant at his girlfriend's place of employment when he showed up to drop off the vehicle and arrested him. The vehicle had approximately 260,000 miles on it and was valued at $500.
On April 13, 2012, a felony complaint was filed charging defendant with one count of felony unlawful driving or taking of a 1993 Lincoln Towncar (Veh. Code, § 10851, subd. (a); count 1) and one count of felony receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count 2).
On April 23, 2012, defendant entered into a plea agreement and pleaded guilty to count 1. As a term of the plea, the remaining charge was dismissed, and defendant was sentenced to county jail for the low term 16 months with credit for time served.
In November 2014, the voters approved Proposition 47, which allows certain defendants convicted of specified theft- or drug-related felonies to petition to have those convictions treated as misdemeanors. On March 9, 2016, after he had completed his sentence, defendant filed a petition for resentencing, requesting that his conviction for unlawful driving or taking of a vehicle be redesignated as a misdemeanor. (Pen. Code, § 1170.18, subd. (f).) The People opposed defendant's petition on the ground that "Vehicle Code section 10851 is not affected by Prop. 47."
On April 15, 2016, following a hearing, the trial court denied defendant's petition, finding Vehicle Code section 10851, subdivision (a), is "not affected by Prop. 47."
Defendant subsequently appealed, and we affirmed the trial court's order in a nonpublished opinion. (See People v. Bullard (Dec. 12, 2016, E065918) [nonpub. opn.].) We held that "all Vehicle Code section 10851 convictions, including both theft- and nontheft-based convictions, are ineligible for reduction" under Proposition 47. (Id. at p. 6.) Justice Miller, however, disagreed with the majority's reasoning, but concurred with its result because defendant had failed to show the vehicle was worth less than $950 and that he had intended to permanently, as opposed to temporarily, deprive the owner of possession of the car. (Id. at p. 10.)
The Supreme Court granted review but deferred briefing pending its decision in People v. Page (2017) 3 Cal.5th 1175 (Page). (See Bullard, supra, 9 Cal.5th at p. 101.)
In Page, supra, 3 Cal.5th at page 1184, the Supreme Court "held that this theft-reduction provision, by its terms, applies to the subset of [Vehicle Code,] section 10851 convictions that are based on obtaining a vehicle worth $950 or less by theft." (Bullard, supra, 9 Cal.5th at p. 99.) The Supreme Court reserved the question whether "equal protection or the avoidance of absurd consequences" requires extending misdemeanor treatment to a person "convicted for taking a vehicle without the intent to permanently deprive the owner of possession." (Page, at p. 1188, fn. 5.) After Page became final, the Supreme Court "ordered briefing in this case to consider whether the retroactive theft-reduction provision of Proposition 47 applies to [Vehicle Code] section 10851 convictions based on taking a vehicle, in the absence of proof that the defendant intended to permanently deprive the owner of possession." (Bullard, at p. 102.)
In contrast, "convictions that are based on the 'nontheft' crime of driving a stolen vehicle after the theft is complete are not reducible to misdemeanors. [Citations.]" (Bullard, supra, 9 Cal.5th at p. 104.) --------
The Supreme Court noted: "[W]hile liability for theft generally requires that the defendant have an intent to permanently deprive the owner of possession, [Vehicle Code] section 10851 draws no distinction between temporary takings and permanent ones; it imposes liability on any person who takes a vehicle 'with intent either to permanently or temporarily deprive' the owner of possession, 'whether with or without intent to steal the vehicle.' ([Veh. Code,] § 10851, subd. (a), italics added.)" (Bullard, supra, 9 Cal.5th at pp. 99-100.) The Supreme Court considered whether, given that Vehicle Code section 10851 "sweeps somewhat more broadly than the term 'theft' is ordinarily understood," (Bullard, at p. 99), "Proposition 47 now requires courts to draw a distinction under [Vehicle Code] section 10851 between permanent and temporary vehicle takings—granting sentencing relief to those who take vehicles permanently but denying relief to those who take vehicles temporarily." (Id. at p. 100.)
In answering this question in the negative, the Supreme Court applied the absurd consequences doctrine of statutory interpretation and concluded: "We hold . . . that to interpret Proposition 47 to split the [Vehicle Code] section 10851 taking offense into two offenses—misdemeanor taking with intent to permanently deprive the owner of the vehicle, and felony taking with intent to do so only temporarily—is so patently illogical that we cannot imagine any plausible reason why voters might have intended that result." (Bullard, supra, 9 Cal.5th at p. 109.)
The Supreme Court summarized its holding as follows: "Proposition 47's substantive effect on [Vehicle Code] section 10851 can be summarized as follows: Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of [Vehicle Code] section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. In pre-Proposition 47 cases, where the defendant seeks resentencing or redesignation under Penal Code section 1170.18, the defendant bears the burden of proof to show the relevant facts . . . ." (Bullard, supra, 9 Cal.5th at p. 110.) However, because the superior court "made no finding as to whether the vehicle was worth $950 or less," and the "valuation question is not within the issues" that the Supreme Court ordered briefed, it left that question for "resolution" by this court on remand. (Ibid.)
Specifically, as applied to this case, the Supreme Court concluded: "The superior court's denial of resentencing for defendant's [Vehicle Code] section 10851 conviction cannot be upheld either on the ground that Proposition 47 is categorically inapplicable to such convictions or on the ground that defendant's conviction was not for theft because he lacked the intent to permanently deprive the vehicle's owner of its possession. We will therefore reverse the judgment of the Court of Appeal affirming the superior court's denial of defendant's resentencing petition. The parties dispute whether a remand to the superior court is required for a determination of the vehicle's value. The superior court made no finding as to whether the vehicle was worth $950 or less, and while the Court of Appeal majority's factual recitation states its value as $500 (a statement supported by the police report), the concurring and dissenting justice asserts defendant 'failed to meet his burden of establishing the vehicle he took was valued under $950.' As the valuation question is not within the issues we ordered briefed, we leave it for resolution by the Court of Appeal on remand." (Bullard, supra, 9 Cal.5th at p. 110.) Therefore, the Supreme Court reversed the judgment of this court and remanded the matter to us for further proceedings consistent with its opinion. (Ibid.)
III
DISCUSSION
The People agree that the only remaining issue in this case is whether the value of the vehicle defendant took was over $950, but oppose defendant's request that we " 'make the factual determination itself' in the first instance."
Under Penal Code section 1170.18, subdivision (f): "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (Pen. Code, § 1170.18, subd. (f); People v. Diaz (2015) 238 Cal.App.4th 1323, 1329.)
Under Penal Code section 490.2, subdivision (a): "Notwithstanding [Penal Code] Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor
Here, as previously explained, under Page and Bullard, Proposition 47 applies to defendant's conviction for unlawfully driving or taking a vehicle in violation of Vehicle Code, section 10851, subdivision (a).
"We review a '[trial] court's legal conclusions de novo and its findings of fact for substantial evidence.' " (People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).)
A Penal Code section 1170.18 petition is initially screened to determine whether it sets forth a prima facie case for relief. (People v. Washington (2018) 23 Cal.App.5th 948, 953.) When eligibility "turn[s] on facts that are not established by either the uncontested petition or the record of conviction . . . an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' " (People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski).)
When filing a petition to reclassify a sentence to a misdemeanor, "[t]he ultimate burden of proving [Penal Code] section 1170.18 eligibility lies with the petitioner." (Romanowski, supra, 2 Cal.5th at p. 916.) The court in People v. Sherow (2015) 239 Cal.App.4th 875 explained how an applicant could meet this burden: "A proper petition could certainly contain at least [the petitioner's] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination." (Id. at p. 880.) Merely submitting an application form claiming that the value of the property was less than $950, without an explanation of the factual basis of the claim, is insufficient. (Ibid.; Perkins, supra, 244 Cal.App.4th at p. 137.) In order to establish a prima facie case, a defendant's petition "should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief." (Perkins at p. 140; see People v. Bear (2018) 25 Cal.App.5th 490, 500 [undisputed declaration can support relief under Penal Code section 1170.18].)
In this case, the record on appeal reveals defendant established a prima facie case for relief, as well as the value of the stolen vehicle. The police report, which the parties stipulated to establish a factual basis for the plea, indicates the value of the stolen vehicle was $500. At the hearing on defendant's petition, defense counsel noted, "page 11 of the police report indicated a value of $500" and "Kelley Blue Book" shows a value of "$603" for the vehicle. The prosecutor did not object to this valuation. While the trial court made no explicit factual finding on the value of the vehicle, on this record, we conclude defendant has met his burden to show the value of the property to be stolen was not more than $950. This is a case where the uncontested information in the record of conviction is enough for the petitioner to establish eligibility. (Romanowski, supra, 2 Cal.5th at p. 916.)
For these reasons, we hold that defendant is eligible to reduce his vehicle theft to a misdemeanor. Although we agree with defendant that it has been over eight years since his conviction and that he has long since been released from custody and Senate Bill No. 136 may apply to this conviction, it is the trial court in the first instance that designates "the felony offense or offenses as a misdemeanor." (Pen. Code, § 1170.18, subd. (g).) As such, we will reverse the trial court's denial of the petition and remand the matter for further proceedings.
IV
DISPOSITION
The order denying defendant's petition for resentencing under Penal Code section 1170.18 is reversed. The matter is remanded for the trial court to reduce defendant's felony conviction for unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a), to a misdemeanor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. CODRINGTON
J.