Opinion
2d Crim. No. B268034
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES C. DAVIS, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Ilana Herscovitz, Noah P. Hill, Ilana Herscovitz Reid, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA054631-01)
(Los Angeles County) OPINION ON TRANSFER FROM SUPREME COURT
Charles C. Davis appeals an order denying a petition to recall and resentence his felony conviction for the unlawful driving or taking of a vehicle, with a prior similar conviction, to a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, §§ 666.5, 1170.18, subd. (a).) We reverse and remand so that Davis may file his Proposition 47 petition to prove, if he can, the elements required for relief.
All statutory references are to the Penal Code unless otherwise stated.
Davis contends that the trial court erred by denying his resentencing petition. In a nonpublished opinion, we rejected this contention. (People v. Davis (Nov. 15, 2016, B268034.) On January 25, 2017, our Supreme Court granted Davis's petition for review, but deferred consideration pending its decision in People v. Page, review granted January 27, 2016, No. S230793. Thereafter, on February 21, 2018, the court transferred Davis's appeal to us with directions to reconsider the appeal in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
The parties have now submitted supplemental briefs following transfer. We have complied with our Supreme Court's directions. We reverse. On remand, Davis will have the opportunity to plead and prove that his felony conviction constituted theft and that the value of the vehicle stolen was $950 or less. (Page, supra, 3 Cal.5th 1175, 1189 [Vehicle Code section 10851 convictions are not "categorically ineligible" for resentencing pursuant to section 1170.18].)
FACTUAL AND PROCEDURAL HISTORY
On December 15, 2011, the Los Angeles County prosecutor filed an information charging Davis with the unlawful driving or taking of a vehicle with a prior similar conviction (count 1), the unlawful driving or taking of a vehicle (count 2), and receiving stolen property (count 3). (§ 666.5; Veh. Code, § 10851, subd. (a); § 496, subd. (a).) The prosecutor also alleged that Davis served three prior prison terms within the meaning of section 667.5, subdivision (b).
The charges arose from the November 16, 2011, theft of a 1992 Honda Accord automobile owned by Marco Cruz. The following day, Los Angeles Police Detective Mark Donnel saw Davis sitting inside the stolen automobile which was parked near the residence at 44384 Stanridge Avenue in Lancaster. When Davis saw Donnel, he "laid down on the seat, across the seat, on the passenger side." As Donnel drove by, he checked the license plate and confirmed that the automobile was stolen. After seeing Donnel, Davis left the automobile and ran to the front door of the residence. Donnel followed Davis and arrested him. The ignition to the automobile had been drilled out and metal shavings lay on the floorboard.
That same day, Sheriff's Deputy Jeremiah McNutt served a search warrant on Robert Beltran, another resident of 44384 Stanridge Avenue, regarding an unrelated criminal matter. Beltran informed McNutt that he saw Davis drive the stolen automobile and park it in the driveway. Beltran also stated, however, that a different person had stolen the automobile.
On January 18, 2012, Davis waived his constitutional rights and pleaded nolo contendere to the unlawful driving or taking of a vehicle with a prior similar conviction (count 1). (§ 666.5.) He also admitted that he served two prior prison terms pursuant to section 667.5, subdivision (b). In accordance with a plea agreement, the trial court sentenced Davis to six years in county jail, consisting of the upper term of four years for count 1, plus two years for the prior prison term enhancements. The court then suspended execution of sentence and granted Davis three years of formal probation with terms and conditions, including service of 130 days' confinement in county jail and payment of fines and fees, including a $1,200 restitution fine and a $1,200 probation revocation restitution fine (suspended). (§§ 1202.4, subd. (b), 1202.44.) The court awarded Davis 130 days of presentence custody credit and, upon the motion of the prosecutor, dismissed counts 2 and 3. (§ 1385. subd. (a).) Davis later served his sentence in county jail following revocation of his probation for violation of its terms.
Section 666.5, subdivision (a) provides: "Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, or felony grand theft involving an automobile in violation of subdivision (d) of Section 487 . . . , or a felony violation of Section 496d regardless of whether or not the person actually served a prior prison term for those offenses, is subsequently convicted of any of these offenses shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment." --------
On September 4, 2015, Davis filed a petition in the trial court requesting resentencing of his section 666.5 conviction to a misdemeanor pursuant to Proposition 47. (§ 1170.18, subds. (a)-(e).) Davis declared that his conviction satisfied the resentencing requirements of section 1170.18, including the $950 or less value of property taken. On November 4, 2015, the court denied the petition, ruling that "the charge does not qualify for Proposition 47 reduction." The court did not consider whether the factual circumstances of this case support reduction of the conviction to a misdemeanor or whether the value of the vehicle was $950 or less.
Davis appeals and contends that the trial court erred by denying his petition because he is eligible for resentencing as a misdemeanor pursuant to Page, supra, 3 Cal.5th 1175.
DISCUSSION
Proposition 47 amended and enacted various provisions of the Penal and Health and Safety Codes to reduce certain drug and theft offenses to misdemeanors, unless committed by ineligible defendants. Proposition 47 also enacted section 1170.18, which creates a procedure whereby a defendant who has suffered a felony conviction of a now reclassified crime can petition to have it redesignated a misdemeanor. Section 666.5 is a recidivist statute that by its terms applies only if the current Vehicle Code section 10851 offense is also a felony violation. (Fn. 2, ante.)
Section 1170.18 subdivision (a) provides: "A person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under the 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 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, as those sections have been amended or added by this act."
In Page, supra, 3 Cal.5th 1175, 1183, our Supreme Court recognized that a violation of section 10851 may constitute theft if the defendant unlawfully obtained a vehicle with the intent to permanently deprive the owner of possession. A violation of section 10851 does not constitute theft if the defendant has no such intent. (Ibid.) "'As a result . . . an offender who obtains a car valued at [$950 or less] by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.'" (Ibid.)
Page continued: "A defendant seeking resentencing under 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. . . . 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 . . . , but also that the conviction was based on theft of the vehicle rather than on posttheft driving . . . or on a taking without the intent to permanently deprive the owner of possession . . . ." (Page, supra, 3 Cal.5th 1175, 1188, citations omitted.)
Here the trial court did not have the benefit of the Page decision, which holds that a section 10851 conviction is not ineligible for reclassification as a matter of law. (Page, supra, 3 Cal.5th 1175, 1188.) Davis also was disadvantaged by not having the benefit of the Page decision. (Ibid.)
We reverse the judgment and remand to allow Davis the opportunity to amend his Proposition 47 petition and to prove the elements required for relief.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
TANGEMAN, J.
Charles A. Chung, Judge
Superior Court County of Los Angeles
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, Ilana Herscovitz, Noah P. Hill, Ilana Herscovitz Reid, Deputy Attorneys General, for Plaintiff and Respondent.