Opinion
E066777
07-26-2017
THE PEOPLE, Plaintiff and Respondent, v. LAKE JORDAN, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI010686) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Michael Pulos and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
On November 4, 2014, the voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Proposition 47); it went into effect the following day. Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It added and amended sections of the Penal Code. Penal Code section 1170.18 was added and provides that a person currently serving a sentence for a felony conviction, whether by trial or plea, who would have been guilty only of a misdemeanor had Proposition 47 been in effect at the time the plea was entered, or at the time of trial, may petition for a recall of the sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing.
In 1999, prior to the passage of Proposition 47, defendant and appellant Lake Jordan pled guilty to a felony violation of former Vehicle Code section 10851. In 2016, after the passage of Proposition 47, defendant filed a petition to recall her sentence (Petition), which was denied by the trial court on the ground that her conviction was not eligible under Proposition 47.
The prior version of Vehicle Code section 10851 essentially provided for an increased punishment, but the other language was essentially the same. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1043-1044.) --------
On appeal, defendant claims that the trial court erred in denying her Petition because her conviction qualified under Proposition 47. Vehicle Code section 10851 is not listed in Penal Code section 1170.18, and the issue of whether a defendant is eligible for resentencing for a violation of that section is currently under review in the California Supreme Court in People v. Page (2015) 241 Cal.App.4th 714, review granted, January 27, 2016, S230793; and People v. Solis (2016) 245 Cal.App.4th 1099, review granted, June 8, 2016, S234150. Defendant also claims that if this court finds that Vehicle Code section 10851 was not affected by Proposition 47, the omission from Proposition 47 violated her equal protection rights under the state and federal Constitutions.
We affirm the denial of the Petition as defendant failed to establish she would have been found guilty of a misdemeanor had Proposition 47 been in effect at the time of her offense.
FACTUAL AND PROCEDURAL HISTORY
On October 28, 1999, a felony complaint charged defendant with two counts of unlawful driving or taking of a vehicle under Vehicle Code section 10851, subdivision (a); a 1982 Toyota Cressida in count 1, and 1986 Toyota Corolla in count 2. On November 5, 1999, defendant pled guilty to count 1, unlawful taking of a motor vehicle, and the court dismissed count 2. The court sentenced defendant to state prison for two years.
On July 20, 2016, defendant filed her Petition requesting that her felony conviction be designated as a misdemeanor. The People opposed defendant's petition because Vehicle Code section 10851 was "not covered by Prop. 47." The trial court denied defendant's Petition on the basis that Vehicle Code section10851 was "not an eligible offense."
Defendant filed a timely notice of appeal.
DISCUSSION
A. PROPOSITION 47
Defendant's Petition filed in the trial court merely cited to her conviction of violating Vehicle Code section 10851, noting that the value "may be less than $950," and that it should be reduced to a misdemeanor. No further facts or argument regarding her eligibility for resentencing were presented in the Petition. On appeal, defendant contends the trial court erred by limiting the scope of Proposition 47.
"The voters approved Proposition 47 at the November 4, 2014 General Election, and it became effective the next day." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.) "Proposition 47 'was intended to reduce penalties for "certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors."'" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.)
Penal Code section 1170.18 provides for a defendant to file a petition to recall her sentence and to seek resentencing "in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." Under Penal Code section 1170.18, subdivision (b) the trial court first determines whether the petition has presented a prima facie case for relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a), then she will be resentenced to a misdemeanor, unless the court, within its discretion, determines the petitioner would pose an unreasonable risk to public safety. (Pen. Code, § 1170.18, subd. (b).) A person who has completed her sentence can petition to have her felony conviction designated a misdemeanor. (Pen. Code, § 1170.18, subd. (f).)
Vehicle Code section 10851 is not listed in Penal Code section 1170.18. However, Proposition 47 added section 490.2 to the Penal Code. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part, "Notwithstanding [Penal Code s]ection 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." Penal Code section 487, subdivision (a), provides that if the value of the money, labor, real or personal property taken exceeds $950, the offense is a felony. Penal Code section 487, subdivision (d)(1) provides that grand theft occurs if the property is an automobile, regardless of the value.
Penal Code section 1170.18 clearly states that a defendant must show she was convicted of a felony but would have been convicted of a misdemeanor if Proposition 47 had been in effect at the time of the offense. For an offense under Penal Code section 490.2, which was added to the Penal Code, defendant had to allege facts in the Petition that she would have been guilty of a misdemeanor violation of Penal Code section 490.2 rather than the felony conviction. It is true that Vehicle Code section 10851 is not listed in Penal Code section 1170.18. However, Vehicle Code section 10851 can be violated by the taking of a vehicle with the intent to permanently deprive the owner of the vehicle. (People v. Garza (2005) 35 Cal.4th 866, 881.) Assuming that a defendant takes a vehicle valued under $950, such violation could constitute a violation of Penal Code section 490.2.
Here, defendant's Petition only stated that she had been convicted of violating Vehicle Code section 10851 and that the vehicle "may be less than $950." No further facts regarding her eligibility for resentencing were provided. The petitioner has the burden of establishing eligibility for relief under Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.) Defendant did not allege that, although Vehicle Code section 10851 is not listed in Proposition 47, she was otherwise eligible because her offense constituted a theft offense under Penal Code section 490.2. she did not present any evidence that the 1982 Toyota Cressida would be valued at less than $950.
Based on the foregoing, defendant was not entitled to have her felony conviction of violating Vehicle Code section 10851 reduced to a misdemeanor under Penal Code section 1170.18 because she did not meet her burden of showing she was eligible under Proposition 47.
B. EQUAL PROTECTION
Defendant also contends that equal protection principles require that her conviction for unlawfully taking a vehicle in violation of Vehicle Code section 10851 be treated in the same manner as a conviction for grand theft auto in violation of Penal Code section 487, subdivision (d)(1). We disagree. Applying rational basis scrutiny, the California Supreme Court has held that "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles." (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) Similarly, it has long been the case that "a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years under the provisions of section 10851 of the Vehicle Code." (People v. Romo (1975) 14 Cal.3d 189, 197.) The same reasoning applies to Proposition 47's provision for the possibility of sentence reduction for a limited subset of those previously convicted of grand theft (those who stole an automobile or other personal property valued $950 or less), but not those convicted of unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851. Absent a showing that a particular defendant "'has been singled out deliberately for prosecution on the basis of some invidious criterion,' . . . the defendant cannot make out an equal protection violation." (Wilkinson, at p. 839.) Defendant here has made no such showing.
To be sure, "Vehicle Code section 10851 is not classified as a 'serious felony,' and it is not as serious as crimes in which violence is inflicted or threatened against a person." (People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonable to argue that the same policy reasons motivating Proposition 47's reduction in punishment for certain felony or wobbler offenses would also apply equally well to Vehicle Code section 10851. Nevertheless, if Proposition 47 were intended to apply not only to reduce the punishment for certain specified offenses, but also any lesser included offenses, we would expect some indication of that intent in the statutory language. We do not find this. The role of the courts is not to insert changes to the Penal Code or Vehicle Code beyond those contained in the plain language of Proposition 47.
DISPOSITION
The trial court's order denying defendant's petition to recall her sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.