Opinion
E066434
09-24-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY SCOTT WEITZEIL, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-Erwin, and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1501756) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Sabrina Y. Lane-Erwin, and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jeremy Scott Weitzeil appealed from a post-judgment order denying his Proposition 47 petition for resentencing and to redesignate his 2015 felony conviction for unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)) to misdemeanor petty theft (§§ 490.2, 1170.18, subds. (a), (f), (g)).
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argued that Proposition 47 and the equal protection clause required that his conviction for unlawfully driving or taking a vehicle under Vehicle Code section 10851, subdivision (a), be reduced to a misdemeanor and that the matter be remanded for a hearing to determine facts essential to this determination based on admissible evidence. Defendant also believed that Proposition 47 does not place the burden on the petitioner to establish eligibility.
Rather than reaching the merits of defendant's appeal, in an unpublished opinion filed on February 13, 2018, we dismissed defendant's appeal due to his failure to obtain a certificate of probable cause. Defendant subsequently petitioned for review by the California Supreme Court. In an order filed on May 16, 2018, the Supreme Court granted defendant's petition for review, and transferred the matter to this court with directions to vacate our decision dismissing the appeal and "to reconsider the cause in light of Harris v. Superior Court (2016) 1 Cal.5th 984, 991 [(Harris)]."
After we vacated our February 13, 2018 nonpublished opinion, we invited supplemental briefing, which the parties have provided. In his supplemental brief, defendant argues in light of Harris, we must consider his appeal on the merits. In response, the People maintain that this court properly dismissed defendant's appeal for failure to obtain a certificate of probable cause. In the alternative, the People assert that even if defendant was eligible to challenge his sentence through a section 1170.18 petition, based on the information in the record, defendant was not entitled to relief because the value of the stolen vehicle was greater than $950.
In light of Harris, defendant did not need to obtain a certificate of probable cause because he is not challenging the validity of the plea. Rather, defendant is appealing from a post-judgment order denying his section 1170.18 petition. Furthermore, we agree that defendant is not entitled to Proposition 47 relief, but for a different reason. It is undisputed that defendant's offenses, plea, and sentencing occurred after the effective date of Proposition 47. Therefore, Proposition 47 relief is not available to defendant. For the reasons explained in more detail below, we affirm the trial court's denial of defendant's section 1170.18 petition.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report.
On November 4, 2014, voters enacted Proposition 47, entitled "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Proposition 47 provides that any defendant currently "serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case [and] request resentencing" under the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a).) Proposition 47 further provides that "[u]pon receiving a petition under subdivision (a) [i.e., for recall of sentence], the court shall determine whether the petitioner satisfies the criteria in subdivision (a)." (§ 1170.18, subd. (b).)
On May 12, 2015, two days after police had found defendant in possession of a stolen vehicle and attached stolen U-Haul trailer, police stopped defendant while driving a stolen 2005 Mercedes C230. During the traffic stop, defendant was uncooperative and refused to put his phone down. Defendant claimed that he owned and operated a legitimate towing company and that he had obtained title to the vehicle on a lien sale for $1,500 from an impound yard. The victim had, however, reported the Mercedes stolen.
On May 14, 2015, defendant was charged with three counts of receiving a stolen vehicle (§ 496d, subd. (a)), to wit, a 2005 Mercedes C230, a 2012 U-Haul trailer, and a 2003 Toyota Rav 4, counts 1 through 3, respectively. Defendant was also charged with three counts of unlawfully driving or taking a vehicle with a prior vehicle theft conviction (§ 666.5), to wit, a 2005 Mercedes C230, a 2012 U-Haul trailer, and a 2003 Toyota Rav 4, counts 4 through 6, respectively. The complaint further alleged that defendant had suffered nine prior prison terms (§ 667.5, subd. (b)).
On November 19, 2015, defendant pled guilty to count 4—unlawfully taking or driving a 2005 Mercedes C230 while having a prior conviction for the same offense (§ 666.5, subd. (a); Veh. Code, § 10851, subd. (a)). In return, the remaining allegations were dismissed and defendant was sentenced to a stipulated term of four years in state prison to be served concurrently with his sentence in case No. FWV1400786.
On May 9, 2016, defendant filed a petition for resentencing to have his felony unlawful driving or taking a vehicle conviction designated as a misdemeanor under section 1170.18.
On June 17, 2016, the trial court heard defendant's petition. At that time, the prosecutor noted "the value of the vehicle was $3,300.00, and this . . . plea . . . was taken post-Prop. 47." After defendant's trial counsel submitted, the trial court denied defendant's petition, finding the crime did not qualify for relief under Proposition 47 and the evidence did not establish the vehicle's value was $950 or less. Specifically, the trial court stated: "It does appear that the defendant is statutorily ineligible; both the nature of the conviction and the amount involved in the theft; so for those reasons, the petition to reduce the matter to a misdemeanor is denied."
On July 7, 2016, defendant filed a timely notice of appeal. In the notice of appeal, defendant indicated the appeal is based on an "[o]rder after judgment affecting substantial rights of [defendant] or other order." He described the order as "[d]enial of Penal Code section 1170.18 petition." Defendant did not seek a certificate of probable cause.
Following this court's unpublished opinion filed on February 13, 2018, dismissing the appeal for lack of a certificate of probable cause, defendant petitioned for review by the California Supreme Court. In an order filed on May 16, 2018, the Supreme Court granted defendant's petition for review, and transferred the matter to this court with directions to vacate our February 13, 2018 opinion dismissing the appeal and to reconsider the cause in light of Harris, supra, 1 Cal.5th 984. This court vacated its opinion and invited supplemental briefing, which the parties have provided.
III
DISCUSSION
Defendant argues that the trial court's order denying his petition should be reversed because Proposition 47 applies to Vehicle Code section 10851. Specifically, he claims that Vehicle Code section 10851, although not listed in Proposition 47, was intended to be included under the catch-all provision of Penal Code section 490.2 where the value of the property does not exceed $950. He maintains that the purpose and intent of Proposition 47, combined with the broad inclusive language in section 490.2, clearly shows that all thefts under $950 should to be treated as misdemeanors. Defendant also contends that constitutional equal protection principles require that a conviction under Vehicle Section 10851 be treated as a misdemeanor. Finally, defendant asserts that the trial court failed to conduct a proper Proposition 47 hearing and that Penal Code section 1170.18 does not place the burden on a defendant to prove the value of the stolen property.
A. Appealability
Section 1237.5, subdivision (a), provides that a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere unless he or she has filed a statement with the trial court "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and has obtained a certificate of probable cause for the appeal. (See People v. Mendez (1999) 19 Cal.4th 1084, 1095-1096.) However, "[n]otwithstanding the broad language of section 1237.5, it is settled that two types of issues may be raised in a guilty or nolo contendere plea appeal without issuance of a certificate: (1) search and seizure issues for which an appeal is provided under section 1538.5, subdivision (m); and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed." (People v. Panizzon (1996) 13 Cal.4th 68, 74; see Cal. Rules of Court, rule 8.304(b).) In other words, if the appeal is based solely upon grounds occurring after entry of the plea, which do not challenge its validity, such as sentencing issues, a certificate of probable cause is not required. (Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Arriaga (2014) 58 Cal.4th 950, 960 (Arriaga) [certificate of probable cause not required when defendant appeals an " 'order made after judgment' "]; People v. Cuevas (2008) 44 Cal.4th 374, 379 [same].)
Section 1237.5 specifically provides: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." --------
In determining whether an appeal mandates a certificate of probable cause, courts examine the substance of the appeal: " ' "[T]he crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." [Citation.]' [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause." (People v. Emery (2006) 140 Cal.App.4th 560, 564-565.)
Plea agreements are "a form of contract," and their terms, like the terms of any contract, are to be enforced. (People v. Shelton (2006) 37 Cal.4th 759, 767.) Unless a plea agreement contains a term requiring the parties to apply only the law in existence at the time the agreement is made, however, "the general rule in California is that the plea agreement will be ' "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy." ' " (Doe v. Harris (2013) 57 Cal.4th 64, 66, quoting People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) Put differently, courts will not amend a plea agreement to add " 'an implied promise [that] the defendant will be unaffected by a change in the statutory consequences attending his or her conviction.' " (Harris, supra, 1 Cal.5th at p. 991, quoting Doe v. Harris, at pp. 73-74.)
In Harris, supra, 1 Cal.5th 984, the defendant pleaded guilty to grand theft from the person and admitted a prior conviction pursuant to a plea agreement that he would receive a six-year prison sentence. (Id. at p. 987.) In return, the People dismissed a robbery charge and other allegations. (Ibid.) The defendant was sentenced pursuant to the plea agreement. Later, the defendant petitioned under Proposition 47 to have the grand theft conviction reduced to a misdemeanor. (Harris, at p. 987.) In response, the People argued that reducing the sentence would deprive them of the benefit of the bargain, and they should be permitted to rescind the plea agreement and reinstate the original robbery charge. (Ibid.)
The California Supreme Court disagreed with the People. The court stated that "[t]he resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the [defendant]." (Harris, supra, 1 Cal.5th at p. 992.) The court explained that "[o]ne of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. [Citations.] Accepting the People's position would be at odds with that purpose. . . . 'If a reduction of a sentence under Proposition 47 results in the reinstatement of the original charges and elimination of the plea agreement, the financial and social benefits of Proposition 47 would not be realized, and the voters' intent and expectations would be frustrated.' " (Ibid.)
The Harris court further stated: "While our conclusion is based on the unambiguous language of section 1170.18 and the expressed intent of Proposition 47, Doe v. Harris, supra, 57 Cal.4th 64, provides additional support. It stands for the proposition that 'the Legislature [or here, the electorate], for the public good and in furtherance of public policy, and subject to the limitations imposed by the federal and state Constitutions, has the authority to modify or invalidate the terms of an agreement.' (Id. at p. 70.) The electorate exercised that authority in enacting Proposition 47. It adopted a public policy respecting the appropriate term of incarceration for persons convicted of certain crimes, including grand theft from the person. The policy applies retroactively to all persons who meet the qualifying criteria and are serving a prison sentence for one of those convictions, whether the conviction was by trial or plea. The electorate may bind the People to a unilateral change in a sentence without affording them the option to rescind the plea agreement. The electorate did so when it enacted Proposition 47." (Harris, supra, 1 Cal.5th at p. 992.)
We note Harris did not involve the issue of whether a certificate of probable cause was needed to challenge a petition under section 1170.18. However, under Harris, Proposition 47 reflects an intent to allow a challenge to a post-judgment criminal sentence if the sentence is based on a felony conviction, whether by jury trial or plea agreement, for an offense that is now eligible for misdemeanor treatment. (§ 1170.18, subd. (a); Harris, supra, 1 Cal.5th at p. 991.) Thus, while a certificate of probable cause is necessary when an appeal attacks an element of the plea agreement (§ 1237.5), the sanctity of the plea agreement does not prevent its terms from being changed by subsequent changes in law. (Doe v. Harris, supra, 57 Cal.4th at p. 66.)
Here, defendant is not appealing from the judgment nor is he attacking the validity of the plea agreement. Defendant is challenging the denial of his post-judgment petition for relief under section 1170.18. Therefore, under Harris, defendant was not required to obtain a certificate of probable cause. Appeals "[f]rom any order made after judgment, affecting the substantial rights of the party" (§ 1237, subd. (b)), such as the one in the instant case, are not subject to the requirement of a certificate of probable cause. (See Arriaga, supra, 58 Cal.4th at p. 960; People v. Zamora (2017) 11 Cal.App.5th 728, 732-733.)
The People argue that Harris involved a plea agreement entered into prior to Proposition 47's passage and, therefore, "[b]ecause he is not entitled to the resentencing procedure under [section] 1170.18, he [was] required to obtain a certificate of probable cause to appeal from the judgment of conviction."
In this case, it is undisputed that in November 2015, more than one year after Proposition 47 went into effect, defendant pleaded guilty to unlawfully taking or driving a 2005 Mercedes C230 while having a prior conviction for the same offense. As discussed post, unlike in Harris, where the parties agreed that section 1170.18 applied to the defendant, here, defendant could not have filed a petition under the plain language of section 1170.18, subdivision (a), because it only applies to those defendants who on November 5, 2014, were serving a sentence under a plea or conviction. (Harris, supra, 1 Cal.5th at pp. 989, 992-993.) However, since the trial court entertained defendant's section 1170.18 petition, under the circumstances of this case and in light of Harris, we believe defendant was not required to obtain a certificate of probable cause to challenge the denial of his post-judgment section 1170.18 petition.
Nonetheless, because defendant's offenses, plea, and sentencing occurred well after the effective date of Proposition 47, section 1170.18 does not permit a defendant—whose offenses occurred after the effective date of Proposition 47—to obtain relief.
B. Standard of Review
"A trial court's factual findings are reviewed for substantial evidence. [Citation.] The interpretation of a statute enacted as part of a voter initiative is a legal issue, which is reviewed de novo." (People v. Fernandez (2017) 11 Cal.App.5th 926, 932; accord, People v. Bunyard (2017) 9 Cal.App.5th 1237, 1242-1243 (Bunyard).)
The interpretation of a voter initiative relies on "the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; accord, People v. Valencia (2017) 3 Cal.5th 347, 357.) "[V]oters who approve an initiative are presumed to ' "have voted intelligently upon an amendment to their organic law, the whole text of which was supplied [to] each of them prior to the election and which they must be assumed to have duly considered . . . ." ' " (Valencia, at p. 369.) We also presume "voters, in adopting an initiative, did so being 'aware of existing laws at the time the initiative was enacted.' " (Ibid.; accord, People v. Martinez (2018) 4 Cal.5th 647, 653; Bunyard, supra, 9 Cal.App.5th at p. 1243.)
C. Proposition 47 Analysis
As previously noted, on November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug possession and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, sections 490.2 and 1170.18 to the Penal Code. (Rivera, at p. 1091; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 1170.18 created a process by which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See generally Lynall, at pp. 1108-1109; People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328.)
However, unfortunately for defendant, Proposition 47 created the section 1170.18 petitioning process to enable an offender "who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor" had Proposition 47 "been in effect at the time of the offense." (§ 1170.18, subd. (a), italics added.) Here, at the time Proposition 47 became effective, defendant had not even committed his crime much less been charged, convicted, or sentenced. Defendant committed his offense in May 2015, and on November 19, 2015, almost one year after the effective date of Proposition 47, defendant entered his guilty plea to a felony offense of unlawfully taking or driving a vehicle while having a prior conviction for the same offense. Thus, Proposition 47 was in effect at the time of the offense, and under the plain terms of the statute the section 1170.18 petitioning process was not available to defendant. (§ 1170.18, subds. (a) & (f); People v. Gutierrez (2018) 20 Cal.App.5th 847, 855.) Since defendant is only appealing the denial of his section 1170.18 petition, he is not entitled to relief even after the California Supreme Court opinion in Harris.
To the extent original section 1170.18 was ambiguous, the Legislature has since amended the statute to clarify it. As noted, the original text of the statute described an offender who may petition for resentencing as "[a] person currently serving" a felony sentence for an offense redefined as a misdemeanor. (Former § 1170.18, subd. (a).) Effective January 1, 2017, the statute now described the eligible offender as "[a] person who, on November 5, 2014, was serving" a felony sentence for an offense redefined as a misdemeanor. (Stats. 2016, ch. 767, § 1.) With this amendment to section 1170.18, subdivision (a), the Legislature made it clearer that the petition for resentencing is not intended for defendants who committed their offenses after the effective date of Proposition 47. Given that these offenders committed their qualifying offenses after November 5, 2014, they could not possibly have been serving sentences for those offenses on that same date.
Based on the foregoing, we find that defendant is not entitled to relief under Proposition 47. The trial court may have denied his petition for reasons our Supreme Court has since rejected, but we may affirm the denial on an alternative basis. (People v. Zapien (1993) 4 Cal.4th 929, 976 [holding that the trial court's " ' "ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason." ' "].) Therefore, we affirm the trial court's order denying defendant's 1170.18 petition.
IV
DISPOSITION
The trial court's order denying defendant's section 1170.18 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.