Opinion
E064393
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE BURTON, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, Kristine A. Gutierrez and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF148429) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, Kristine A. Gutierrez and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
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.
On February 26, 2010, prior to the passage of Proposition 47, defendant and appellant Richard Lee Burton entered a guilty plea to unlawfully driving or taking a vehicle, a 1991 Honda Accord, without the owner's permission under Vehicle Code section 10851, subdivision (a) (count 1); receiving stolen property, a 1991 Honda Accord, under Penal Code section 496, subdivision (a) (count 2); misdemeanor possessing burglary tools under Penal Code section 466 (count 3); and misdemeanor resisting a police officer under Penal Code section 148 (count 4). Defendant also admitted that he had one prison prior (Pen. Code, § 667.5, subd. (b)), and one strike prior (§ 667, subd. (c)(3)). In exchange for the plea, defendant was to receive a stipulated sentence of 16 months for count 1, and a total sentence of 22 years when sentenced in another case, case No. RIF145879. The court also dismissed a second strike prior.
On March 19, 2010, the trial court sentenced defendant to a total term of two years four months in state prison; consisting of a term of 16 months on count 1, and one year for a prison prior. Moreover, defendant was sentenced on the same day to 19 years eight months in case No. RIF145879, to be served consecutively with the sentence in this case.
On December 31, 2014, defendant filed a petition to recall his sentence (Petition) stating that his felony convictions in counts 1 and 2 should be reduced to misdemeanors.
The prosecution filed a response, arguing that defendant's conviction in count 1 was not a qualifying felony and requested a hearing regarding the value of the stolen property in count 2. On July 24, 2015, the trial court denied the petition, stating that Vehicle Code section 10851, subdivision (b), was not a qualifying felony. The court also stated that if "defendant has proof that the stolen car was under $950.00 he may set on calendar as to the [Penal Code] 496[, subdivision] (a) charge." There is nothing in the record to establish that defendant provided the trial court with proof of the value of the stolen vehicle.
On appeal, defendant contends that Penal Code section 1170.18 should be broadly interpreted to include violations of Vehicle Code section 10851, and be reduced to a misdemeanor. We disagree with defendant's interpretation and affirm the denial of the Petition.
DISCUSSION
A. Standard of Review
In interpreting a voter initiative such as Proposition 47, "we apply the same principles that govern statutory construction. [Citation.] Thus, 'we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme. [Citation.] When the language is ambiguous, 'we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" (People v. Rizo (2000) 22 Cal.4th 681, 685; see People v. Marks (2015) 243 Cal.App.4th 331, 334.)
B. Penal Code Section 1170.18
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 . . . ."
C. Applicability of Proposition 47 to Vehicle Code Section 10851 Offenses
Penal Code section 1170.18, subdivision (a), lists the offenses for which relief may be appropriate: "Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code." Vehicle Code section 10851 is not one of the listed offenses. Defendant nonetheless contends that because Vehicle Code section 10851 is a theft offense, and Penal Code section 1170.18 explicitly applies to theft offenses through Penal Code section 490.2 when the value of the stolen property is less than $950, Penal Code section 1170.18 must also apply to violations of Vehicle Code section 10851.
Vehicle Code section 10851 provides: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment."
The California Supreme Court is currently reviewing whether a felony conviction for violating Vehicle Code section 10851, subdivision (a), may be reduced to misdemeanor petty theft (Pen. Code, §§ 490.2, 1170.18), and whether the defendant may be resentenced on a Vehicle Code section 10851, subdivision (a) conviction as if convicted of misdemeanor petty theft. More recently, in People v. Johnston (2016) 247 Cal.App.4th 252, review granted July 13, 2016, S235041, the Third District held that a felony conviction for violating Vehicle Code section 10851 subdivision (a), does not come within the ambit of Penal Code section 1170.18 and is ineligible for misdemeanor resentencing or misdemeanor redesignation under Proposition 47, regardless of the facts of the crime or the value of the vehicle involved. (Accord, People v. Sauceda (2016) 3 Cal.App.5th 635, review granted November 30, 2016, S237975.) Until the California Supreme Court rules on the issue, we adhere to the view that no felony conviction for violating Vehicle Code section 10851 can be reduced to misdemeanor petty theft or qualify for resentencing as misdemeanor petty theft under Penal Code section 1170.18.
E.g., People v. Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016, S230793, People v. Haywood (2015) 243 Cal.App.4th 515, review granted March 9, 2016, S232250, People v. Ortiz (2016) 243 Cal.App.4th 854, review granted March 16, 2016, S232344, and People v. Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016, S234150.
California Rules of Court, rules 8.1105 and 8.1115. --------
As a matter of statutory interpretation, all Vehicle Code section 10851 convictions, including both theft- and nontheft-based convictions, are ineligible for reduction in accordance with section 8 of Proposition 47. (See Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 8, p. 72 [adding Pen. Code, § 490.2].) As noted, Penal Code section 1170.18 does not include Vehicle Code section 10851 as one of the enumerated offenses eligible for resentencing. Penal Code section 490.2, added by Proposition 47, also does not mention that Vehicle Code section 10851 is eligible to the limited extent a Vehicle Code section 10851 offense might qualify as a petty theft under Penal Code section 490.2. Furthermore, Vehicle Code section 10851 is not strictly a theft statute. It applies to thefts, as well as to nontheft offenses, such as driving someone's car without consent and without the intent to permanently deprive the owner of the car. (Veh. Code, § 10851, subd. (a); see also People v. Garza (2005) 35 Cal.4th 866, 876 [Veh. Code, § 10851, subd. (a), "'proscribes a wide range of conduct,'" and may be violated "'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).'"].) Thus, we conclude defendant's Vehicle Code section 10851, subdivision (a), conviction is not entitled to redesignation under Proposition 47.
D. Equal Protection
Defendant next contends that, assuming Proposition 47 applied only to vehicle thefts but not vehicle takings, such discrimination is impermissible under the Equal Protection Clause of the United States Constitution and the California Constitution. Not so.
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 resentencing/reclassification of a limited subset of those previously convicted of grand theft (those who stole an automobile or other personal property valued at $950 or less) (Pen. Code, § 490.2), but not for 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.
DISPOSITION
The order denying defendant's Proposition 47 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: CODRINGTON
J.
MILLER, J., Dissenting and Concurring.
I respectfully dissent to that part of the majority opinion finding that Proposition 47 does not apply to all convictions under Vehicle Code section 10851. Some convictions of Vehicle Code section 10851 constitute theft offenses. (People v. Garza (2005) 35 Cal.4th 866, 881.) Assuming that a defendant takes a vehicle with the intent to permanently deprive the owner of the vehicle and it is valued under $950, such violation would constitute a violation of Penal Code section 490.2, petty theft, which was added by Proposition 47. Under Proposition 47, defendant was entitled to prove he would have been guilty of a misdemeanor violation of Vehicle Code section 10851.
I concur in the result that defendant's petition to recall his sentence was properly denied by the trial court as defendant failed to meet his burden of establishing the vehicle he took was valued under $950.
MILLER
J.