Opinion
C084697
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHRISTIAN CARR, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17FE003008)
Defendant Joseph Christian Carr pleaded no contest to unlawfully receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) and admitting a prior felony conviction for violating Vehicle Code section 10851. Appointed counsel for defendant filed an opening brief that sets forth the facts of the underlying cases and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) While this case was pending, our Supreme Court decided People v. Page (2017) 3 Cal.5th 1175 (Page), holding that although not expressly included in the statutory language, a conviction under Vehicle Code section 10851 for theft of a vehicle worth $950 or less is eligible to be reduced to a misdemeanor under Proposition 47. We asked for and received supplemental briefing on the applicability, if any, of Page to this case.
Upon our independent review of the record pursuant to Wende and our review of the parties' supplemental briefs, we find no arguable error that would result in a disposition more favorable to defendant.
We provide the following brief description of the factual and procedural background of the underlying cases. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
In February 2017, defendant received a stolen 1989 Honda CRX knowing it was stolen. He also had a previous conviction in August 2014 for violating Vehicle Code section 10851. A complaint charged defendant with receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)—count one) and unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)—count two). The complaint also alleged the 2014 prior conviction for unlawfully taking or driving vehicle. (Pen. Code, § 666.5, subd. (a).) Defendant pleaded no contest to receiving the stolen vehicle and admitted the prior conviction allegation. In accordance with the negotiated disposition, the trial court sentenced defendant to the midterm of three years, two years suspended subject to mandatory supervision. The trial court also ordered defendant to pay various fines and fees. The remaining charges were dismissed on the People's motion.
Approximately two months after his plea, defendant moved to withdraw his plea, based on a subsequent appellate decision People v. Van Orden (2017) 9 Cal.App.5th 1277, in which the Fourth Appellate District, Division Two, held Proposition 47 applied to redesignate Vehicle Code section 10851 convictions as misdemeanors under certain circumstances. The trial court denied the motion.
Defendant filed a timely notice of appeal. The trial court granted his request for a certificate of probable cause.
After appointed counsel filed a Wende brief in this case, the California Supreme Court issued its opinion in Page, supra, 3 Cal.5th 1175, finding that although not expressly included in the statutory language, a conviction under Vehicle Code section 10851 for theft of a vehicle worth $950 or less is eligible to be reduced to a misdemeanor under Proposition 47. We directed the parties to submit supplemental briefing on the applicability, if any, of the Page decision. Defendant argued that like Vehicle Code section 10851, Penal Code section 496d should be eligible for Proposition 47 relief. The People argued Page did not apply to this case because it did not involve section 496d and did not extend its holding to nonenumerated, nontheft offenses.
Proposition 47 redesignated a number of offenses as misdemeanors, and provided a procedure in Penal Code section 1170.18 for retrospective comparable relief for defendants who were serving or had completed a sentence for a previous conviction that would have been a misdemeanor "had this act been in effect at the time of the offense." (Pen. Code, § 1170.18, subds. (a), (f).) Penal Code section 496 was among the statutes amended by Proposition 47; if the stolen property received was valued at less than $950, the district attorney may charge the suspected recipient with no more than a misdemeanor (unless he or she has certain enumerated prior offenses). (Pen. Code, § 496, subd. (a).) Defendant here was not convicted of violating Penal Code section 496, but section 496d, which is not referenced in Penal Code section 1170.18 and was not amended by Proposition 47. (See Pen. Code, §§ 1170.18, subd. (a), 496, & 496d.)
"Although the absence of specific listing of the offense in [Penal Code] section 1170.18 provides some guidance, we recognize our Supreme Court has applied [Penal Code] section 490.2 as created in Proposition 47 to nonlisted offenses. ([People v.] Romanowski [(2017)] 2 Cal.5th 903 [Pen. Code, § 484e]; Page, supra, 3 Cal.5th 1175 [Veh. Code, § 10851].)" (People v. Sanders (2018) 22 Cal.App.5th 397, 402, review granted Jul. 25, 2018, S248775, pending disposition of People v. Jimenez, S249397.) The statute addressed in Page—Penal Code section 490.2, subdivision (a)—includes the language " 'Notwithstanding [Penal Code] Section 487 or any other provision of law defining grand theft . . . .' " (Page, supra, 3 Cal.5th at p. 1182.) There is no equivalent language in the receiving statutes. Proposition 47 applies to certain violations of Vehicle Code section 10851 because of the broad, preemptive language of Penal Code section 490.2. Proposition 47 did not enact similar language in the context of receiving stolen property. The lack of such a provision, coupled with the fact that the initiative did not amend Penal Code section 496d, is dispositive on defendant's receiving conviction. Proposition 47 does not apply to the crime of receiving a stolen vehicle. (See People v. Bussey (2018) 24 Cal.App.5th 1056, 1063-1064.)
In addition, although Page held that Proposition 47 applies to Vehicle Code section 10851 convictions, it did not suggest that Proposition 47 would apply to reduce a prior felony conviction when the court in that prior proceeding has not exercised its discretion to designate a prior felony conviction as a misdemeanor. A defendant seeking to reduce a felony conviction used to enhance his sentence has to file his application to redesignate under Proposition 47 in the court of conviction of that felony—not the court where the current sentence was imposed. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.) Nothing in the record suggests defendant has sought to have his 2014 Vehicle Code section 10851 conviction redesignated as a misdemeanor in the court of that conviction (Sacramento). Accordingly, this prior conviction also did not serve as a basis for reducing defendant's sentence.
DISPOSITION
The judgment is affirmed.
BUTZ, J. We concur: RAYE, P. J. ROBIE, J.