Opinion
E067300
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. PAUL ROBERT CAMPOS, Defendant and Appellant.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1502896) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Paul Robert Campos, appeals from the denial of his petition for resentencing under Penal Code section 1170.18, added by the Safe Neighborhoods and Schools Act (Proposition 47). Defendant sought to reduce his felony conviction for unlawfully taking or driving a vehicle (Veh. Code, § 10851) to a misdemeanor. But defendant's offense, no contest plea, and sentencing occurred well after the effective date of Proposition 47. The new misdemeanor penalty provisions of Proposition 47 were available to defendant at the time he pled no contest to a felony violation. Penal Code section 1170.18 does not permit a defendant in this situation—whose offense occurred after the effective date of Proposition 47—to belatedly challenge his plea and sentence. We therefore affirm the order denying his petition for resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURE
In December 2015, the People charged defendant with a felony violation of Vehicle Code section 10851, subdivision (a) (unlawfully taking or driving a vehicle). According to police reports, on November 27, 2015, officers tracked a stolen 1988 Jeep Cherokee and found defendant in the vicinity of the car, out of breath, and sweating profusely. Defendant admitted to being a passenger in the Jeep and running from the car when he saw police lights. His shoes matched shoe tracks at the scene of the theft.
In April 2016, defendant pled no contest to the felony charge against him. Defense counsel stipulated that the complaint and/or police reports attached to and incorporated in the complaint provided a factual basis for defendant's plea. In accepting the plea, the court found there was a factual basis for it. The court ordered defendant to serve three years of supervised probation under various terms and conditions, including 270 days in the county jail weekend work release program.
In September 2016, defendant filed a petition for resentencing under Penal Code section 1170.18 and requested that the court reduce his conviction for violating Vehicle Code section 10851 to a misdemeanor. His petition included a screen shot from the Kelley Blue Book Web site, which showed an estimated value of $883 for a 1992 Jeep Cherokee in "fair" condition. The court held a hearing on the petition and denied it on the ground that Proposition 47 does not apply to convictions under Vehicle Code section 10851. Defendant filed a notice of appeal from this order.
III. DISCUSSION
In his opening brief, defendant contends his Vehicle Code section 10851 conviction qualifies for resentencing under Proposition 47. He argues he committed theft of a vehicle worth less than $950, which Proposition 47 redesignated a misdemeanor petty theft. It is true that Proposition 47 reclassified certain Vehicle Code section 10851 violations as misdemeanors. (People v. Page (2017) 3 Cal.5th 1175, 1180, 1183.) The trial court erred when it held otherwise, but it was correct to deny defendant's petition for a separate reason. Proposition 47's provision for offenders to recall a sentence and seek resentencing (Pen. Code, § 1170.18, subd. (a)) does not apply to people who committed their offenses after the effective date of the measure. Defendant falls into this category. He committed his offense long after the effective date. Proposition 47 relief was available to him, and it required no petition for resentencing. Yet he did not take advantage of it. His belated attempt to do so by filing a petition for resentencing was not proper, and we must therefore affirm the denial of his petition.
We directed the parties to file supplemental letter briefs on whether a petition for resentencing was a proper mechanism for defendant to challenge his sentence, given that he did not address this issue in his initial briefing. (Gov. Code, § 68081.) --------
The California voters approved Proposition 47 on November 4, 2014, and the measure took effect the next day. (People v. Dehoyos (2018) 4 Cal.5th 594, 597.) Just as with statutes, we independently interpret the measure and give its words their ordinary meaning. (People v. Rizo (2000) 22 Cal.4th 681, 685.)
As relevant here, Proposition 47 redefined several theft-related felonies as misdemeanors, depending on the offender's criminal history. (People v. Dehoyos, supra, 4 Cal.5th at p. 597.) The redefined offenses included theft of property worth $950 or less. (§ 490.2, subd. (a).) As of November 5, 2014, courts should consider all such thefts to be petty thefts and punish them as misdemeanors, except when the offender has previously been convicted of a "super strike" or a crime requiring sex offender registration. (Ibid.; People v. Dehoyos, supra, at pp. 597-598.) This is the "prospective relief" provided by Proposition 47 for those facing charges after the effective date of the measure. (People v. Bush (2016) 245 Cal.App.4th 992, 1000.)
Proposition 47 also provides "retrospective relief for those who were already serving felony sentences when the measure took effect. (People v. Dehoyos, supra, 4 Cal.5th at p. 598.) The measure accomplished this by adding section 1170.18. As originally enacted, it provided: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with" the new misdemeanor penalty provisions. (Former § 1170.18, subd. (a), added by Prop. 47, § 14, eff. Nov. 5, 2014, italics added.) The conditional language of the statute made plain that a petition for resentencing applies when defendants committed their offense before the effective date of Proposition 47. These are the defendants who might "have been guilty of a misdemeanor . . . had [Proposition 47] been in effect at the time of the offense." (Former § 1170.18, subd. (a).) But defendants committing their offenses after the effective date need not petition for resentencing to determine what would have occurred, had the measure hypothetically been in effect. For these defendants, Proposition 47 is, in truth, in effect. Its new misdemeanor penalty provisions automatically apply to them at the time of their initial sentencing (assuming they meet the other criteria for eligibility).
Accordingly, the petition for resentencing under section 1170.18, subdivision (a) is a mechanism for extending Proposition 47's benefits to a population that did not have the benefit of the measure at the time of sentencing. (See People v. Dehoyos, supra, 4 Cal.5th at p. 598.) It is not a mechanism for applying Proposition 47 relief to defendants who committed their offenses in a post-Proposition 47 world. Those offenders do not require any special mechanism to obtain the benefit of laws in place when they committed their offenses. (See People v. Gutierrez (2018) 20 Cal.App.5th 847, 855 ["Gutierrez had not even committed the crime charged at the time Proposition 47 went into effect. Thus, relief under . . . section 1170.18 is unavailable to him."].)
To the extent the original section 1170.18 was at all ambiguous about this, 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 § 11708.18, subd. (a).) Effective January 1, 2017, the statute now describes 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, eff. Jan. 1, 2017.) With this change to section 1170.18, subdivision (a), the Legislature made even more clear 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.
In this case, defendant committed his offense in November 2015, more than a year after Proposition 47's passage. He could not therefore petition for resentencing under Penal Code section 1170.18, subdivision (a). By the time he committed his offense, Proposition 47 had already added the statute designating theft of property worth less than $950 a misdemeanor petty theft. (Pen. Code, § 490.2.) Around the time of his offense, the appellate courts were split on whether Vehicle Code section 10851 takings qualified as misdemeanor petty thefts under Proposition 47. (See e.g., People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793, affirmed as modified by People v. Page, supra, 3 Cal.5th 1175; People v. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, dismissed and remanded Feb. 28, 2018, S232344.) The California Supreme Court resolved the issue, holding "[b]y its terms, Proposition 47's new petty theft provision, [Penal Code] section 490.2, covers the theft form of the Vehicle Code section 10851 offense. . . . 'As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.'" (People v. Page, supra, at pp. 1180, 1183.)
Although our Supreme Court did not resolve the split until November 2017, by January 2016, defendant had the benefit of published case law holding a Vehicle Code section 10851 violation was eligible for misdemeanor treatment under Proposition 47, so long as the car taken was valued at $950 or less. (People v. Ortiz, supra, 243 Cal.App.4th at p. 860.) Still, in April 2016, defendant pled no contest to a felony violation of Vehicle Code section 10851 and stipulated to a factual basis for the felony plea. Proposition 47's misdemeanor penalty provisions were the law when defendant pled no contest to a felony. He could have taken advantage of the relief that the measure offered yet did not. The record contains no indication that he challenged the factual basis for his plea, moved to withdraw his plea, or sought a certificate of probable cause and appealed after his April 2016 sentencing. Instead, four months after his sentencing, defendant filed a petition for resentencing under Penal Code section 1170.18. As we have explained, this section does not entitle defendant to resentencing when he committed his offense after Proposition 47's passage. The trial court may have denied his petition for reasons our Supreme Court has since rejected, but we may affirm the denial on this 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."'"].)
In his supplemental brief, defendant concedes that he could not challenge his sentence through a section 1170.18 petition. He fails to explain why we should nevertheless reverse the court's order. To permit defendant to challenge his sentence in this manner would defy established law on the consequences of guilty pleas. A plea of no contest to a felony has the same legal effect as a guilty plea. (§ 1016, cl. 3.) "A guilty plea admits every element of the charged offense . . . ." (In re Chavez (2003) 30 Cal.4th 643, 649.) It "waives the right to an appellate challenge based on insufficiency of the evidence . . . ." (People v. Hughes (1980) 112 Cal.App.3d 452, 460-461.) After the passage of Proposition 47, to obtain a felony conviction for unlawfully taking a car, the prosecution must prove as an element of the crime that the car is worth more than $950. (People v. Gutierrez, supra, 20 Cal.App.5th at p. 855; cf. People v. Sherow (2015) 239 Cal.App.4th 875, 879 ["Shoplifting is now a misdemeanor [under Proposition 47] unless the prosecution proves the value of the items stolen exceeds $950."].) When defendant pled guilty to the felony violation, he admitted this element and waived the right to challenge the sufficiency of the evidence. If he wanted to challenge the factual basis for his plea and set it aside, a section 1170.18 petition was not the way to do it. A defendant's challenge to the factual basis for a no contest plea is "'a challenge to the validity of the plea itself,'" which requires the defendant to obtain a certificate of probable cause and appeal from the judgment of conviction. (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187.) As discussed, defendant did neither of those things here. The court properly denied his petition because he was not entitled to the relief he sought under section 1170.18.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.