Opinion
H043558
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PATRICK TANNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1348758)
I. INTRODUCTION
In 2013, defendant Daniel Patrick Tanner pleaded no contest to two counts of taking or driving a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)), one count of reckless driving while attempting to evade a peace officer (id., § 2800.2, subd. (a)), and one count of concealing stolen property (Pen. Code, § 496, former subd. (a)). He also admitted that he had served one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to four years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In early 2015, the trial court granted a petition by defendant pursuant to section 1170.18, which was enacted as part of Proposition 47, to have his felony conviction for concealing stolen property resentenced as a misdemeanor. Defendant was resentenced to three years four months in prison.
In late 2015, defendant filed a second petition to have one of his felony convictions for taking or driving a vehicle without the owner's consent (former Veh. Code, § 10851, subd. (a)) resentenced or redesignated as a misdemeanor. The court denied the petition after concluding that section 1170.18 does not authorize a second petition.
On appeal, defendant contends that the trial court erred in denying the second petition without considering the merits of the petition. We determine that defendant was not barred from filing a second petition, but that his second petition failed to establish that his Vehicle Code section 10851 conviction was based on the theft of the vehicle. We will affirm the court's order without prejudice to consideration of a new petition providing evidence of defendant's eligibility.
II. BACKGROUND
According to a police report, during the early morning of October 22, 2013, defendant was seen driving a stolen 1995 Honda Civic. With police in pursuit, defendant crossed into oncoming lanes several times, exceeded the speed limit, and at one point was driving 105 miles per hour. The police lost sight of defendant. The vehicle was recovered a short time later, unoccupied and on fire. That same morning, a second victim reported that his Dodge truck had been stolen. Law enforcement initiated four separate pursuits of the truck but were not successful in stopping the truck, which drove at unsafe speeds for at least part of the pursuit. Law enforcement eventually found the truck parked and unoccupied. Defendant was found hiding under a tarp in the driveway of a nearby residence. He had another person's wallet in his possession.
A. Convictions for Taking or Driving a Vehicle Without Consent and Concealing Stolen Property
In October 2013, defendant was charged by complaint with taking or driving a vehicle, a Honda Civic, without the owner's consent (Veh. Code, § 10851, subd. (a); count 1), reckless driving while attempting to evade a peace officer (id., § 2800.2, subd. (a); count 2), concealing stolen property, a wallet (§ 496, former subd. (a); count 3), taking or driving a vehicle, a Dodge truck, without the owner's consent (Veh. Code, § 10851, subd. (a); count 4), and misdemeanor unlawfully causing a fire of another person's property (§ 452, subd. (d); count 5). The complaint further alleged that he had served one prior prison term (§ 667.5, subd. (b)).
In December 2013, defendant pleaded no contest to counts 1 through 4 and admitted that he had served one prior prison term. He entered his pleas and admissions with the understanding that he would receive four years in prison. Count 5 was submitted for dismissal with a Harvey waiver. Defendant's counsel stipulated to a factual basis for the pleas based on the police report. In January 2014, the trial court sentenced defendant to four years in prison.
People v. Harvey (1979) 25 Cal.3d 754. --------
B. Proposition 47
In November 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Page (2017) 3 Cal.5th 1175, 1179, 1181 (Page).) Proposition 47 "reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies." (Page, supra, at p. 1179.) Under Proposition 47, concealing stolen property valued at $950 or less is a misdemeanor if the defendant does not have a specified prior conviction. (§ 496, subd. (a).) Proposition 47 also added section 490.2, which provides that "obtaining any property by theft," where the value of the property taken is $950 or less, is petty theft and shall generally be punished as a misdemeanor. (§ 490.2, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g).)
C. Defendant's First Petition Regarding Concealing Stolen Property
In early 2015, defendant signed a written authorization for the county public defender's office to investigate the possibility of filing a petition for resentencing under Proposition 47, and he waived the right to be personally present at resentencing. Thereafter, on February 27, 2015, defendant's counsel filed a petition for resentencing on behalf of defendant. The petition included a written stipulation by the prosecutor that defendant's felony conviction for concealing stolen property, a wallet (§ 496, former subd. (a))), was eligible for resentencing as a misdemeanor.
At a hearing in March 2015, the trial court granted the requested relief. The court proceeded to resentence defendant on counts 1, 2, and 4 to a total term of three years four months in prison. The sentence consists of the middle term of two years on count 1 (taking or driving a vehicle without the owner's consent; Veh. Code, § 10851, subd. (a)), a consecutive term of eight months (one-third the middle term) on count 2 (reckless driving while attempting to evade a peace officer; id., § 2800.2, subd. (a)), and a consecutive term of eight months (one-third the middle term) on count 4 (taking or driving a vehicle without the owner's consent; id., § 10851, subd. (a)). In resentencing count 3 (concealing stolen property; § 496, subd. (a)) as a misdemeanor, the court ordered defendant to serve a concurrent term of one year in county jail.
D. Defendant's Second Petition Regarding Taking or Driving a Vehicle Without Consent
On November 30, 2015, defendant, representing himself, filed a second petition seeking resentencing or redesignation of one of his felony convictions for violating Vehicle Code section 10851 (driving or taking a vehicle without the owner's consent). Defendant did not expressly state in his petition which of his two convictions under Vehicle Code section 10851, subdivision (a) he sought relief for - the count involving a Honda Civic (count 1) or a Dodge truck (count 4). He declared under penalty of perjury that the value of the "car" was under $950.
The prosecutor filed written opposition in early 2016. The prosecutor contended that defendant's felony conviction in count 1 for violating Vehicle Code section 10851 was not an "enumerated offense" under section 1170.18 that may be redesignated as a misdemeanor. The prosecutor also argued that the vehicle at issue, a 1995 Honda Civic, was valued at more than $950. The prosecutor contended that a "simple search" on Kelley Blue Book reflected that "the fair market value ranges from $1,427 - $ 2,547." (Uppercase and underlining omitted.) The prosecutor argued that defendant therefore failed to meet his burden of showing that he was entitled to relief.
In a written order without a hearing, the trial court appointed counsel to represent defendant and scheduled an evidentiary hearing to determine the value of the property. The court determined that defendant's allegation under penalty of perjury that the value of the property did not exceed $950 was sufficient to make a prima facie showing of value. The court observed that whether a Vehicle Code section 10851 offense was eligible for resentencing as a misdemeanor under Proposition 47 was a question pending before the California Supreme Court.
At the evidentiary hearing on March 21, 2016, appointed counsel appeared on behalf of defendant, who was not present at the hearing. The trial court observed that defendant was representing himself when he filed the instant petition, and that the public defender's office had represented him for the prior petition, which was granted in March 2015.
Appointed counsel acknowledged the existence of the first petition and indicated that defendant had consented to counsel appearing on his behalf for purposes of Proposition 47. Regarding the second petition, counsel stated, "I was surprised to see the Proposition 47 petition filed on the 10851. I don't have any additional information to give the court. [¶] I should note he's a non-transport, so he's not personally present. I do not know what his wishes are. So I will submit this to the court."
The trial court stated that section 1170.18 "has no provision authorizing a second petition" and indicated that it should not have set the second petition for an evidentiary hearing. The court ruled that, "because there is no procedural authorization for a second or subsequent petition," defendant's second petition was denied. The court then stated the following to defendant's counsel: "I would also note in the event that you intend to communicate further with [defendant] . . . that it does not appear that he's eligible - and this is a question open yet to determination by the Supreme Court - even if 10851 were an eligible offense, it does appear based on the very basic information provided by the People that this would not be one of those in that the value does appear to exceed $950. [¶] However, I'm denying the petition because it's an unauthorized multiple petition."
III. DISCUSSION
A. The Parties' Contentions
Defendant contends that the trial court erred in determining that only one petition may be filed under section 1170.18. He requests that the matter be remanded to the trial court with directions to conduct an evidentiary hearing regarding his second petition. Defendant also argues that it was error for the court to consider the Kelley Blue Book estimate because it was hearsay and irrelevant.
The Attorney General implicitly concedes that defendant's second petition was not barred by the filing of a prior petition for resentencing on a different count. In this regard, the Attorney General acknowledges that "there is nothing in section 1170.18 that prohibits the filing of second petitions." The Attorney General also acknowledges that the law was unsettled as to whether Proposition 47 applied to Vehicle Code section 10851 convictions prior to the California Supreme Court's decision in Page, supra, 3 Cal.5th 1175, in late 2017. The Attorney General contends that defendant's petition was nevertheless properly denied because: (1) he failed to meet his burden of showing that the value of the Honda was less than $950, and (2) the police report indicates that defendant's Vehicle Code section 10851 conviction was based on post-theft driving, which is not eligible for misdemeanor treatment under Proposition 47.
B. The Standard of Review
"We review a '[superior] court's legal conclusions de novo and its findings of fact for substantial evidence.' [Citation.] The interpretation of a statute is subject to de novo review on appeal. [Citation.] 'In interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles that govern statutory construction.' [Citation.] ' "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" ' [Citation.] 'In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]' [Citation.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).)
C. Defendant's Filing of Two Successive Petitions Was Not a Proper Basis for Denying His Second Petition
A defendant seeking resentencing or redesignation of a felony conviction as a misdemeanor may petition or file an application pursuant section 1170.18. Specifically, section 1170.18 states that a defendant "may petition for a recall of sentence" if the defendant was "serving a sentence for a conviction . . . of a felony or felonies" and "would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense." (§ 1170.18, subd. (a).) "Upon receiving a petition," the trial court must determine whether the defendant is entitled to relief. (Id., subd. (b).) If the defendant is entitled to relief, the defendant's "felony sentence shall be recalled and the [defendant] resentenced to a misdemeanor." (Ibid.) If the defendant has already completed the sentence for the felony conviction for which the defendant seeks relief, the defendant instead "may file an application . . . to have the felony conviction or convictions designated as misdemeanors." (Id., subd. (f).) "If the application satisfies [the requisite criteria], the court shall designate the felony offense or offenses as a misdemeanor." (Id., subd. (g).)
The trial court in this case stated that section 1170.18 "has no provision authorizing a second petition." We agree that section 1170.18 does not expressly authorize a second petition, but we also observe that section 1170.18 does not expressly prohibit a second petition. Although section 1170.18 allows a defendant to seek relief for multiple convictions in a single case through a single petition (id., subds. (a) & (f)), it is not clear from the language of section 1170.18 that a defendant is limited to a single petition, or whether the defendant may file successive petitions regarding different convictions in a single case as defendant did in this case.
The state has a " 'weighty interest in the finality of judgments in criminal cases' " and thus there are rules limiting a defendant's ability to collaterally attack a conviction or sentence. (Gomez v. Superior Court (2012) 54 Cal.4th 293, 309.) For example, procedural rules barring successive habeas corpus petitions " 'are necessary both to deter use of the writ to unjustifiably delay implementation of the law, and to avoid the need to set aside final judgments of conviction when retrial would be difficult or impossible.' " (Id. at p. 308.)
However, Proposition 47, which added section 1170.18 to the Penal Code, reflects an intent to allow a challenge to a criminal sentence if the sentence is based on a felony conviction for an offense that is now eligible for misdemeanor treatment. In this regard, Proposition 47 expressly states that one of its purposes is to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, § 3, p. 70 (hereafter Guide).) Requiring misdemeanor treatment of eligible offenses would help fulfill another purpose of Proposition 47, which "is to reduce the number of nonviolent offenders in state prisons, thereby saving money [for corrections] and focusing prison on offenders considered more serious under the terms of the initiative. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; . . .)" (Harris v. Superior Court (2016) 1 Cal.5th 984, 992.) Moreover, Proposition 47 expressly states that it "shall be broadly construed to accomplish its purposes" and "shall be liberally construed to effectuate its purposes." (Guide, supra, text of Prop. 47, §§ 15, 18, p. 74.) Broadly construing section 1170.18 to allow a second petition regarding a felony conviction that was not raised in a prior petition would further Proposition 47's purposes, whereas barring a petition simply because it was a second petition and without regard to its merits would not.
Other provisions of section 1170.18 support the conclusion that it should not be narrowly construed to impose a procedural bar to a second petition in this case. Section 1170.18 has been amended to extend the original three-year deadline by which a petition or application must be filed. (Compare § 1170.18, subd. (j) [petition or application generally must be filed on or before Nov. 4, 2022] with id., former subd. (j), added by Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014) [petition or application generally must be filed within three years after the effective date of Prop. 47].) Extending the original deadline for filing a petition by five years, from 2017 to 2022, reflects an intent to enlarge, rather than restrict, the opportunity for a defendant to seek relief under section 1170.18. Likewise, construing section 1170.18 to allow a second petition regarding a felony conviction not raised in a prior petition enlarges, rather than restricts, the opportunity for a defendant to obtain relief.
At the same time, section 1170.18 expressly states that it is not intended to "diminish or abrogate the finality of judgments in any case that does not come within the purview of this section." (§ 1170.18, subd. (n), italics added; see also id., former subd. (n), added by Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) This provision indicates that a defendant who does come within the purview of section 1170.18 - that is, a defendant who has a case with an eligible felony conviction - should be permitted to petition for relief notwithstanding the importance of the finality of judgments.
In sum, the provisions in Proposition 47 and amended section 1170.18 support a liberal construction of section 1170.18 to allow a timely second petition regarding a felony conviction that was not raised in prior petition. In this case, defendant's second petition in 2015 was timely, because it was filed well within the original three-year deadline for filing such a petition. (§ 1170.18, former subd. (j), added by Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).)
The parties on appeal suggest that the trial court may have been relying on the rules applied to habeas corpus petitions when the court denied defendant's second Proposition 47 petition. In the context of habeas corpus petitions, "the general rule is . . . that, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied." (In re Clark (1993) 5 Cal.4th 750, 797 (Clark); see id. at pp. 767-768; accord, In re Martinez (2009) 46 Cal.4th 945, 956 (Martinez).) However, even in the context of habeas corpus petitions, a change in the law may justify the delay in the presentation of a claim. (Clark, supra, at pp. 775, 767; Martinez, supra, at p. 956.) As we will further explain, since the filing of defendant's petitions and the trial court's rulings, the California Supreme Court resolved the previously unsettled question of whether a Vehicle Code section 10851 conviction may be eligible for relief.
At the time Proposition 47 was approved by voters, several offenses were indisputably affected by Proposition 47's reduction in punishment because the relevant code sections were expressly amended by Proposition 47 and expressly identified in section 1170.18 as eligible for resentencing. Concealing stolen property in violation of section 496 is one of those offenses, and this offense was the basis for defendant's first petition for relief under Proposition 47. (§ 496, subd. (a), as amended by Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014); § 1170.18, subds. (a) & (b).)
In contrast, Vehicle Code section 10851 was not amended by Proposition 47 and is not expressly listed in section 1170.18. Further, at the time defendant's counsel filed defendant's first petition, there was no published opinion holding that a Vehicle Code section 10851 felony conviction was eligible for relief under Proposition 47. Conflicting conclusions were reached by the Courts of Appeal thereafter.
While this appeal was pending, the California Supreme Court in Page determined that "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing." (Page, supra, 3 Cal.5th at p. 1184.) Specifically, the court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, supra, at p. 1187.)
In this case, because the provisions of Proposition 47 and amended section 1170.18 support a liberal construction of section 1170.18 to allow a timely second petition regarding a felony conviction that was not raised in prior petition, and because the law was not clear that a Vehicle Code section 10851 conviction was eligible for relief under Proposition 47 when defendant filed his first petition, we determine that the trial court should not have denied defendant's later petition merely because it was his second petition.
D. Defendant's Failure to Establish His Eligibility for Relief Warranted the Denial of His Second Petition
"A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility. [Citations.]" (Page, supra, 3 Cal.5th at p. 1188.) If the defendant fails to meet this burden, the trial court's order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (Perkins, supra, 244 Cal.App.4th at p. 139.) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]" [Citation.]' [Citation.]" (Ibid.)
"To establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less [citation], but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation]. [¶] Because vehicle theft often involves driving the vehicle, determining eligibility for resentencing under section 1170.18 will frequently require distinguishing between theft and unlawful driving after a theft. Posttheft driving in violation of Vehicle Code section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a ' substantial break' between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft. [Citations.]" (Page, supra, 3 Cal.5th at p. 1188, italics added & fns. omitted.)
In Page, the California Supreme Court found that the defendant's "uncounseled petition" was properly denied where it contained "no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less." (Page, supra, 3 Cal.5th at pp. 1180, 1189.) Significantly, however, the California Supreme Court held that the defendant was "entitled to an opportunity to file a new petition" because "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and . . . neither had yet been judicially articulated when defendant submitted his petition." (Id. at p. 1189.) The California Supreme Court concluded that the trial court's order denying the defendant's petition should be "affirmed without prejudice to consideration of a petition providing evidence of his eligibility." (Id. at p. 1190.)
In this case, defendant's second petition included a statement under penalty of perjury that his Vehicle Code section 10851 conviction involved a car valued at less than $950. He did not establish, however, that his conviction was based on the "theft of the vehicle rather than on posttheft driving . . . or on a taking without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188.) Defendant's second petition was therefore properly denied. (Id. at p. 1189.)
However, similar to Page, defendant's "uncounseled [second] petition" in this case was filed before "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction" were clearly established. (Page, supra, 3 Cal.5th at pp. 1180, 1189.) Defendant is therefore "entitled to an opportunity to file a new petition" to "allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18." (Id. at p. 1189.) Although the Attorney General contends that the record on appeal contains sufficient evidence to establish that defendant's petition should be denied on the merits regarding whether (1) his conviction rested on the theft of the vehicle and (2) the vehicle's value was $950 or less, we determine that the trial court should make that factual determination in the first instance, to the extent defendant files a new petition establishing his eligibility for relief under section 1170.18.
IV. DISPOSITION
The March 21, 2016 order denying defendant's second petition is affirmed without prejudice to consideration of a new petition providing evidence of his eligibility.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.