Opinion
E067423
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. GARY ROBERT CASMER, Defendant and Appellant.
Andrea S. Bitar, 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, Eric A. Swenson and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI024061) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed. Andrea S. Bitar, 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, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
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.
In 2006, prior to the passage of Proposition 47, defendant and appellant Gary Robert Casmer pled guilty to one count of unlawful driving or taking of a vehicle under Vehicle Code section 10851. In 2016, after the passage of Proposition 47, defendant filed a petition to recall his sentence (Petition), which was denied by the trial court on the ground that his conviction was not eligible under Proposition 47.
On appeal, defendant claims that the trial court erred in denying the Petition because his conviction qualified under Proposition 47. Although Vehicle Code section 10851 is not listed in Penal Code section 1170.18, in People v. Page (2017) 3 Cal.5th 1175 (Page), the California Supreme Court recently held that a conviction under Vehicle Code section 10851 is eligible under Proposition 47. However, in this case, we affirm the denial of the Petition because defendant has failed to establish that he would have been found guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 25, 2006, defendant pled guilty to one count of unlawful driving or taking of a vehicle under Penal Code section 10851, subdivision (a), and admitted that he had a prior Penal Code section 10851 conviction under Penal Code section 665.5 and one prison prior under Penal Code section 667.5. In exchange for his plea, defendant was referred to drug court and his prison sentence was to be suspended.
In an order dated February 9, 2018, we asked the parties to address whether defendant is "ineligible for relief under Proposition 47 because he has a prior Vehicle Code section10851 conviction under Penal Code section 666.5." Both the People and defendant submitted briefing stating that the Penal Code section 666.5 enhancement does not render defendant ineligible for relief. The People provided that "section 666.5 prescribes an elevated sentence for recidivist offenders if both the current and prior qualifying offenses are felonies. [Citation.] This section does not define a new offense or convert the underlying conviction into a felony. [Citation.] In Lee, the appellate court held that the trial court retained discretion to reduce the defendant's Vehicle Code section 10851 conviction to a misdemeanor under section 17, subdivision (b) 'even though defendant admitted the section 666.5 allegation.' " The People went on to state that "[s]imilarly, section 666.5 does not prevent the trial court from granting a defendant's application to reduce a section 10851 conviction to a misdemeanor under Proposition 47 if the conviction otherwise qualifies for reduction." We agree with the parties and find that defendant is eligible for relief under Proposition 47.
On July 18, 2008, the court imposed a four-year state prison sentence after defendant failed to complete drug court.
On October 12, 2016, defendant filed the Petition pursuant to Penal Code section 1170.18. The People opposed the Petition, arguing that defendant was not entitled to relief because Penal Code section 10851 was an ineligible offense for relief. On December 2, 2016, the trial court denied the Petition without an explanation.
On December 19, 2016, defendant filed a timely notice of appeal.
After the parties filed their briefs in this case, on February 9, 2018, we ordered the parties to file supplemental letter briefs. On March 29, 2018, we granted defendant's motion to augment the record and deemed the document attached to the Attorney General's response filed March 28, 2018, as part of the record on appeal. After the parties filed their supplemental letter briefs, defendant filed a motion for leave to file supplemental briefing and attached his supplemental brief. We hereby deny defendant's motion and proceed with the case.
Because defendant pled guilty, the facts are taken from the complaint and drug court report. --------
On April 4, 2006, defendant took his father's car, a 1996 Ford Thunderbird, without permission. Two days later, on April 6, around 1:00 a.m., defendant returned the car to his father's property. That day, the father called police to report the incident. When deputies arrived, they spoke with defendant; he admitted that he took the car on April 4 and returned it on April 6. Defendant told the probation officer that he took his father's car to look for a job but got high on drugs and failed to return it for a day and a half.
DISCUSSION
A. THE TRIAL COURT PROPERLY DENIED DEFENDANT'S PETITION UNDER PROPOSITION 47
Defendant's Petition filed in the trial court merely cited to his conviction of violating Vehicle Code section 10851, and that it should be reduced to a misdemeanor. No further facts or argument regarding his eligibility for resentencing were presented in the Petition. On appeal, defendant contends the trial court erred by limiting the scope of Proposition 47.
"Approved by the voters in 2014, Proposition 47 (the 'Safe Neighborhoods and Schools Act') reduced the punishment of certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. 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. (Id., subd. (a).) A separate provision of Proposition 47, codified in Penal Code section 1170.18, subdivision (a), 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.' (Pen. Code, § 1170.18, subd. (a).)" (Page, supra, 3 Cal.5th at pp. 1179.) In Page, the issues involved "the application of these provisions to a prior conviction under Vehicle Code section 10851, taking or driving a vehicle without the owner's consent." (Id. at p. 1180.) In Page, the California Supreme Court recently held that "obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." (Id. at p. 1187.) Therefore, "[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." (Ibid.)
Defendant bears the burden of establishing eligibility under Penal Code section 1170.18. (Page, supra, 5 Cal.5th at p. 1188.) "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 (§ 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." (Ibid.) Here, defendant's Petition only stated that he had been convicted of violating Penal Code section 10851. No further facts regarding his eligibility for resentencing were provided. He did not present any evidence that the 1996 Ford Thunderbird would be valued at less than $950.
At the hearing on the Petition, however, defense counsel stated that "[t]he car that was stolen was a 1986 Thunderbird[.] [T]he current price of a 1986 Ford Thunderbird according to Kelley Blue Book varies between $550 and $800." First, we note that the defense did not submit any actual evidence regarding the value of the vehicle—just counsel's statement. Moreover, the complaint alleged that the vehicle stolen was a 1996 Ford Thunderbird, not a "1986" Ford Thunderbird. Even if we were to consider counsel's statement, counsel discussed the current price of a 1986 Ford Thunderbird, a vehicle 10 years older than the age of the vehicle that was stolen.
In our order dated February 9, 2018, requesting supplemental briefing, we asked the parties to address whether "defendant pled guilty to theft of a vehicle under Vehicle Code section 10851, or to taking a vehicle without the intent to permanently deprive the owner of possession of a vehicle under Vehicle Code section 10851[.]" We need not address this issue on appeal because, even if defendant pled guilty to theft of the vehicle, the Petition fails because he failed to present any evidence that the vehicle was valued at less than $950. After the parties filed their supplemental briefs, defendant filed a motion for leave to file another supplement brief. In the supplemental brief, defendant wanted to argue that it would create absurd consequences to permit Proposition 47 relief for theft offenses under Vehicle Code section 10851, subdivision (a), but not for non-theft offenses under the same Penal Code section. We hereby deny defendant's motion because we did not make a determination on that issue in this appeal.
Based on the foregoing, defendant was not entitled to have his felony conviction of violating Vehicle Code section 10851 reduced to a misdemeanor under Penal Code section 1170.18 because he did not meet his burden of showing he was eligible under Proposition 47. (See Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1163, fn. 3 ["A party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting"].) Therefore, like the defendant in Page, defendant's Petition was properly denied, but he is entitled to an opportunity to file a new petition meeting the statutory requirements.
DISPOSITION
The trial court's order denying defendant's Petition is affirmed without prejudice. Nothing in this decision or in Penal Code section 1170.18 forecloses defendant's ability to file a new petition alleging sufficient facts to support his claim.
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MILLER
J. We concur: McKINSTER
Acting P. J.
Slough, J., Dissenting.
I respectfully disagree with the majority opinion. The question on appeal is whether the trial court erred by holding Casmer was ineligible as a matter of law to have his Vehicle Code section 10851, subdivision (a) (Section 10851) violation reduced to a misdemeanor. (Pen. Code, § 1170.18, subds. (a), (b), (f) & (g).) The trial court's answer was yes. The Supreme Court has since disagreed, holding a defendant convicted of violating Section 10851 who establishes he was convicted of taking, as opposed to driving, a vehicle valued at $950 or less is eligible for resentencing under Penal Code section 490.2, subdivision (a) (Section 490.2). (People v. Page (2017) 3 Cal.5th 1175, 1189 (Page).)
The majority affirms on the alternative basis that Casmer did not meet his burden of proving the value of the property he stole was less than $950. (Maj. opn. ante, at pp. 6-7.) The majority also follows the lead of the Page decision by allowing Casmer to file a new petition "alleging sufficient facts to support his claim." (Maj. opn. ante, at p. 8.) I note at the outset that Casmer got past the allegation stage in his case. As the majority acknowledges, he had a hearing and at least the opportunity to present evidence. Moreover, the trial court had access to its own records during the hearing. Thus, this is not a case, like Page, where the trial court apparently had no information whatsoever on the critical factual issues that would allow it to determine eligibility. As a result, I don't think it is appropriate to adopt Page's disposition and affirm without prejudice. If the critical issue in this appeal were whether Casmer could establish the value of the vehicle, I would reverse and remand for further proceedings.
But I write separately primarily because I believe Casmer has already admitted facts showing his conduct was a joyriding offense. Page holds all low-value theft offenses are covered by the new petty theft provision, Section 490.2, and therefore eligible to be reclassified as misdemeanors. An apparent corollary is driving offenses, such as joyriding, are not eligible for redesignation, at least under that statutory provision. The problem with Casmer's case is he admitted he was joyriding. He told police he took his father's car from their shared home to run some errands. He said he then met up with a friend in Victorville and they decided to drive to San Bernardino together, where they stayed until the early morning hours of April 6. About a day and a half after he left, Casmer returned home with the car. He explained to a probation officer that he'd gotten high in the interim. The only reasonable conclusion from his own statements is this was a driving offense, not a theft offense. As such, it doesn't qualify for Proposition 47 relief under Section 490.2 and Page.
If that were the end of the analysis, there would be no point in permitting Casmer to file a new petition, and we should affirm the trial court's order with prejudice. However, concluding the offense was joyriding does not end the analysis. Casmer argues it violates equal protection to allow Proposition 47 relief for theft convictions under Section 10851, but not driving convictions under the same section. He has filed a motion seeking leave to develop that argument by means of a supplemental brief, but the majority denies the motion without explanation. (Maj. opn. ante, at p. 4.) I would grant it and request a response from the People. Because I do not have the benefit of the parties' arguments, I will not reach a conclusion here. I wish only to note the potential importance of the issue for Casmer and for anyone else charged or convicted of a non-theft offense under Section 10851. Under the disposition the majority has chosen, Casmer may raise the issue in litigating a new petition or application under Penal Code section 1170.18.
SLOUGH
J.