Opinion
C078239
04-05-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT KENNETH CARVER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 62131666) OPINION ON REMAND
This appeal raises one issue: whether defendant Robert Kenneth Carver was entitled to have his felony conviction for unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) reduced to a misdemeanor pursuant to Proposition 47. In light of the California Supreme Court's recent opinion in People v. Page (2017) 3 Cal.5th 1175 (Page), we conclude he is entitled to refile his petition under Proposition 47 so that he may have the opportunity to prove he was sentenced for unlawfully taking or driving a vehicle and that the vehicle in question was valued under the $950 threshold. Accordingly, we affirm the judgment without prejudice to allow defendant to refile his petition.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2014, defendant went inside an unlocked 1995 Chevrolet pickup truck that belonged to someone else, realized he could start the truck and did, and then drove off in it. The next day, he ingested half of a hydrocodone pill that he found in the truck and drank some alcohol, and then he drove around Placer County in the truck. While driving the truck through an intersection, defendant collided head-on with another vehicle. Defendant fled on foot and was captured by police while hiding at a senior center, smelling of alcohol, and acting inebriated. Just before the crash, police had received calls about the truck swerving all over the roadway.
In July 2014, defendant pled no contest to felony unlawfully driving or taking a vehicle, misdemeanor driving under the combined influence of alcohol and drugs, misdemeanor hit-and-run driving, and misdemeanor obstructing or delaying a police officer. The court later allowed defendant to withdraw his plea to the last two offenses (hit-and-run driving and obstructing a police officer) and dismissed those counts with a Harvey waiver.
A Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) "is a 'contrary agreement' permitting the sentencing judge to consider the facts relating to dismissed charges." (People v. Barasa (2002) 103 Cal.App.4th 287, 291, fn. 3.) --------
In September 2014, the court sentenced defendant to a split term of 18 months in prison and 18 months of supervised release for the unlawful taking or driving count and a concurrent term for the driving under the influence count.
In December 2014, defendant filed a petition for resentencing under Proposition 47, claiming his offense of unlawfully driving or taking a vehicle was reclassified as a misdemeanor under the proposition. The court held a hearing on the petition. Defense counsel argued that the "Blue Book value [of the truck defendant took] . . . as of November 2014, was $754, depending on the condition of it, to a certain range of maybe up to $932." The court denied the petition because Vehicle Code section 10851 was not an offense enumerated in Proposition 47 that qualified for resentencing.
DISCUSSION
Defendant argues his case should be remanded to the trial court so he can prove he is entitled to Proposition 47 relief for his unlawful taking or driving of a vehicle conviction in violation of Vehicle Code section 10851. Specifically, he asserts, our Supreme Court's opinion in Page concluded that a conviction under Vehicle Code section 10851 is not categorically ineligible for resentencing under Proposition 47 and the trial court erred in finding that it was. The People concede, and request defendant's case be remanded so that he can have an opportunity to prove he is entitled to Proposition 47 relief. We accept the People's concession and affirm the trial court's order without prejudice allowing defendant to refile a Proposition 47 petition.
In Page, our Supreme Court noted that Vehicle Code section 10851 includes both theft offenses and nontheft offenses, because it "punishes not only taking a vehicle, but also driving it without the owner's consent, 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." (Veh. Code, § 10851, subd. (a), italics added.) Theft, in contrast, requires a taking with intent to steal the property -- that is, the intent to permanently deprive the owner of its possession." (Page, supra, 3 Cal.5th at p. 1182.) The court stated, "[O]btaining an automobile worth $950 or less by theft constitutes petty theft under [Penal Code] section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." (Page, at p. 1187.) Thus, a "defendant who, at the time of Proposition 47's passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is therefore eligible for resentencing under section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, at p. 1187.)
Our Supreme Court in Page further determined that "[a] defendant seeking resentencing under [Penal Code] section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility." (Page, supra, 3 Cal.5th at p. 1188, citing People v. Romanowski (2017) 2 Cal.5th 903, 916; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137; People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.) "To establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less ([Pen. Code, ]§ 490.2, subd. (a)), but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession." (Page, at p. 1188.)
In Page, the "[d]efendant'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." (Page, supra, 3 Cal.5th at p. 1189.) Our Supreme Court therefore concluded the trial court properly denied defendant's petition, but noted "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." (Page, at p. 1189.)
Likewise, in this case, defendant has not met his burden of proof of establishing his eligibility. Defendant has not shown the value of the truck was $950 or less. Although at the hearing on the petition defense counsel argued the value of the vehicle was between $754 and $932 based on an estimate obtained from Kelley Blue Book, no declaration or other evidence addressing the value of the vehicle was submitted with the petition.
In addition, to be eligible for resentencing, under Page, defendant must establish the basis for his felony conviction under Vehicle Code section 10851 and Penal Code section 666.5, i.e., he must show the conviction "was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188.) A resentencing court may be able to make this determination from the record of conviction. (Id. at p. 1189.) Here, it is not clear whether defendant's conviction was based on vehicle theft or his posttheft driving. There is no reporter's transcript of the plea hearing and the facts of defendant's offenses show he took the truck and drove it over the course of multiple days. Thus, it is unclear whether defendant's conviction under Vehicle Code section 10851 is entitled to reduction under Proposition 47.
Accordingly, because defendant is entitled to the opportunity to allege and prove his eligibility for resentencing, we affirm the trial court's denial order without prejudice to subsequent consideration of a properly filed petition providing evidence of defendant's eligibility for relief under Proposition 47. (See Page, supra, 3 Cal.5th at pp. 1180, 1189; People v. Perkins, supra, 244 Cal.App.4th at pp. 139-140, 142; People v. Sherow, supra, 239 Cal.App.4th at p. 881.)
DISPOSITION
The court's order denying defendant's motion for resentencing is affirmed without prejudice to any future motion defendant may bring pursuant to Proposition 47.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.