Opinion
G051386
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES BARTLETT, 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, Arlene A. Sevidal and Andrew Mestman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14NF4151) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. 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, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
The trial court denied defendant Robert James Bartlett's petition under Penal Code section 1170.18 for the reduction of his felony convictions to misdemeanors. He had been convicted of unlawfully taking a vehicle in violation of Vehicle Code section 10851 and receiving a stolen motor vehicle in violation of Penal Code section 496d. (All further statutory references are to the Penal Code unless otherwise specified.) Bartlett argued his convictions fell within the category of felony offenses that qualify for reduction to misdemeanors by the passage of the Safe Neighborhoods and Schools Act (Proposition 47).
In People v. Bartlett (Apr. 12, 2016, G051386) [nonpub. opn.] we affirmed the order denying his petition. The California Supreme Court granted Bartlett's petition for review of our opinion and transferred the matter to this court for reconsideration of the matter in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
We follow Page, supra, 3 Cal.5th 1175 and again affirm the court's order denying the petition because Bartlett failed to show that the vehicle he stole and received had a value not exceeding $950. Such proof is necessary to show that his convictions are in accordance with the statutes listed in section 1170.18, subdivision (a) that qualify for resentencing under Proposition 47. (See Page, supra, 3 Cal.5th at p. 1184.) As directed by the Supreme Court in Page, supra, 3 Cal.5th at page 1190, our affirmance of the order denying the petition is without prejudice to Bartlett filing a new petition that provides evidence of Bartlett's eligibility for resentencing.
BACKGROUND
In October 2014, Bartlett was charged in a felony complaint with one count each of (1) unlawful taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) (count 1); (2) receiving stolen property in violation of section 496d, subdivision (a) (count 2); (3) possession of a controlled substance (heroin) in violation of Health and Safety Code section 11350, subdivision (a) (count 3); and (4) possession of burglary tools in violation of section 466 (count 4). Bartlett pleaded guilty to all four counts, stating as the factual basis of his plea: "[O]n October 1, 2014 I took another's vehicle; received the same knowing it to be stolen; did possess a usable quantity of heroin; and did possess tool[s] used to commit burglary and when I took and drove the car I knew I did not have the consent of the owner and I intended to permanently deprive the owner of possession of the car." The trial court imposed a total sentence of 16 months in jail.
Bartlett filed a petition under section 1170.18, subdivision (a), in which, as amended, he sought to have his felony convictions for counts 1, 2, and 3 recalled and reduced to misdemeanors (the petition). The People filed a response opposing the petition as to counts 1 and 2 on the ground the "loss exceeds 950 dollars." The People did not oppose the petition as it applied to count 3.
The trial court denied the petition as to counts 1 and 2 and granted the petition as to count 3. Bartlett appealed.
DISCUSSION
I.
A Defendant, Such as Bartlett, Who Is Convicted of Vehicle Theft Under Vehicle Code
Section 10851 Is Eligible for Resentencing Under Proposition 47 if the Defendant Can
Show the Vehicle Was Worth $950 or Less.
In 2014, the voters enacted Proposition 47, which makes certain drug- and theft-related offenses punishable as misdemeanors, unless the offenses were committed by certain ineligible defendants. (Page, supra, 3 Cal.5th at p. 1179; People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.) Those offenses previously had been designated either as felonies or as crimes that can be punished as either felonies or misdemeanors. (People v. Rivera, supra, at p. 1091.) "To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that 'obtaining any property by theft' is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." (Page, supra, 3 Cal.5th at p. 1179.) Proposition 47 added section 1170.18, subdivision (a) which "establishes procedures under which a person serving a felony sentence at the time of Proposition 47's passage may be resentenced to a misdemeanor term if the person 'would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense.'" (Page, supra, 3 Cal.5th at p. 1179.)
In Page, supra, 3 Cal.5th at page 1180, the defendant filed a petition for resentencing under Proposition 47 with regard to his felony sentence for violating Vehicle Code section 10851. The trial court denied the petition, and the appellate court affirmed, concluding that Proposition 47 did not apply to punishment for a Vehicle Code section 10851 violation. (Page, supra, 3 Cal.5th at p. 1180.) The California Supreme Court held "the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47. Penal Code section 1170.18 . . . does not expressly refer to Vehicle Code section 10851, but it does permit resentencing to a misdemeanor under Penal Code section 490.2 . . . for theft of property worth $950 or less. As this court has previously explained, Vehicle Code section 10851 may be violated in several ways, including by theft of a vehicle. [Citation.] A person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less." (Ibid.)
Bartlett's conviction for violating Vehicle Code section 10851 was based on the theory he stole the car in question; the factual basis of his guilty plea states he took and drove a vehicle that belonged to another person without that person's consent and with the intent to permanently deprive the owner of possession of the vehicle. Under Page, therefore, Bartlett is entitled to resentencing under section 1170.18 if he can show the vehicle he stole was worth no more than $950. In his supplemental appellate brief, the Attorney General acknowledges: "It appears from the record that [Bartlett]'s Vehicle Code section 10851 conviction was based on theft of the vehicle rather than on posttheft driving. Therefore, [Bartlett] has satisfied one prong of eligibility for resentencing under Proposition 47."
As to the second prong—whether the vehicle Bartlett stole was worth $950 or less—Bartlett's petition contained no information regarding the value of the vehicle. The felony complaint describes the vehicle Bartlett stole as a 1993 Honda Accord. The prosecution's opposition to the petition asserted that the vehicle was worth more than $950. In his supplemental appellate brief, Bartlett asserts that the Kelley Blue Book showed such a vehicle might have a trade-in value of $399 to $654.
In Page, supra, 3 Cal.5th at page 1189, the California Supreme Court held that a petition for resentencing of a conviction for theft under Vehicle Code section 10851 which lacks information regarding the value of the vehicle is properly denied without prejudice to the defendant filing a new petition containing such information. The court explained: "Defendant's petition included 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. The petition was therefore properly denied. But as 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 as neither had yet been judicially articulated when defendant submitted his petition for recall, petitioner is entitled to an opportunity to file a new petition meeting the statutory requirements. Such a petition should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18." (Page, supra, 3 Cal.5th at p. 1189.)
In his supplemental appellate letter brief, the Attorney General agrees that the same dearth of evidence regarding the stolen vehicle's value in Page exists in this case and that "on remand, [Bartlett] should be allowed the opportunity to satisfy the other prong—that the vehicle he was convicted of stealing was worth $950 or less." Therefore, as to Bartlett's conviction for violating Vehicle Code section 10851, we affirm the trial court's order denying the petition without prejudice to the trial court's consideration of a new petition providing evidence of Bartlett's eligibility for resentencing under Proposition 47. (See Page, supra, 3 Cal.5th at p. 1190.)
II.
Bartlett's Conviction for Receiving a Stolen Vehicle in Violation of
Section 496d.
Bartlett's petition also sought resentencing under Proposition 47 of his conviction for receiving a stolen vehicle in violation of section 496d, a statute which, like Vehicle Code section 10851, is not included in section 1170.18, subdivision (a)'s list of statutes. In Page, supra, 3 Cal.5th at page 1184, the California Supreme Court held that section 1170.18, subdivision (a) does not contain the exclusive list of statutes defining felony offenses that are eligible for resentencing under Proposition 47. The court explained: "The statute instead says that those who are eligible (i.e., defendants serving a felony sentence who would have only been guilty of a misdemeanor had Prop. 47 been in effect at the time of their offenses) may 'request resentencing in accordance with the listed sections." (Page, supra, 3 Cal.5th at p. 1184, italics added.) The court further explained that defendants requesting resentencing for Vehicle Code section 10851 convictions, for example, are asking to be given a misdemeanor sentence "'in accordance with' section 490.2, which is on the list; their resentencing thus falls within the terms of section 1170.18, subdivision (a)." (Page, supra, 3 Cal.5th at p. 1184.)
The question that then arises is whether Bartlett may seek resentencing of his conviction for receiving a stolen vehicle in violation of section 496d in accordance with section 490.2 or another statute, such as section 496—which generally proscribes receipt of stolen property—that, along with section 490.2, appears in the list of statutes contained in section 1170.18, subdivision (a). Bartlett argues Proposition 47 applies to his conviction for violating section 496d. Neither Bartlett nor the Attorney General, however, has analyzed this issue in light of Page, supra, 3 Cal.5th 1175; the Supreme Court in Page did not address convictions under section 496d.
We do not need to decide whether Bartlett's conviction for violating section 496d is eligible for resentencing in accordance with section 490.2 or section 496 because both statutes authorize misdemeanor punishment only for stolen property valued at $950 or less. As discussed ante, Bartlett's petition did not contain information about the value of the stolen vehicle and, thus, was properly denied on that basis, but without prejudice to his filing a new petition containing such information.
We note the felony complaint and the factual basis for Bartlett's plea suggest he was convicted of both stealing and receiving the same property—namely, a 1993 Honda Accord. At the sentencing hearing, the trial court stayed execution of sentence as to Bartlett's conviction for receiving a stolen vehicle in violation of section 496d, which further suggests that both convictions were based on the same act. When a conviction for violating Vehicle Code section 10851 based on a theft and a conviction for receiving stolen property are based on the same act of taking a vehicle, the general prohibition against dual convictions for theft and receiving stolen property applies. (People v. Calistro (2017) 12 Cal.App.5th 387, 401 [only if a violation of Vehicle Code section 10851, subdivision (a) constitutes a theft offense does it "bar a conviction for receiving the same vehicle as stolen property"].) We raise these issues in an effort to assist the trial court in its consideration of any new petition filed by Bartlett.
DISPOSITION
The postjudgment order is affirmed without prejudice to Bartlett filing a new petition that provides evidence of Bartlett's eligibility for resentencing of his convictions.
FYBEL, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.