Opinion
B262757
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EGGLER, Defendant and Appellant.
Mae G. Alberto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Robert M. Snider, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA090390) APPEAL from an order of the Superior Court of the County of Los Angeles, Mark S. Arnold, Judge. Affirmed. Mae G. Alberto, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Michael Eggler (defendant) appeals from the denial of his motion pursuant to Penal Code section 1170.18, seeking to reduce his felony conviction for violating section 666.5 to a misdemeanor. We initially affirmed the trial court's denial of defendant's motion. (People v. Eggler (Dec. 16, 2015, B262757) (nonpub. opn.).) Thereafter, defendant petitioned for review by our Supreme Court, which transferred the matter back to us for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175 (Page). In light of Page, we again affirm the trial court's denial of defendant's motion but do so without prejudice to defendant filing a new petition by which he may attempt to prove his eligibility for relief.
All statutory citations are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On May 29, 2014, defendant was charged in a two-count complaint with a felony violation of Vehicle Code section 10851, subdivision (a) (Theft and unlawful driving or taking of a vehicle) (count 1), and a violation of section 666.5 (Prior felony theft conviction involving vehicle) (count 2). On June 13, 2014, defendant pleaded no contest to count 2 and admitted having three prior convictions for violations of Vehicle Code section 10851, subdivision (a). The People dismissed count 1 pursuant to plea negotiations, and the trial court proceeded to immediate sentencing, imposing, among other things, four years in the county jail. At a subsequent hearing, the trial court ordered defendant to pay victim restitution in the amount of $432.40, plus interest from the date of the loss.
In November 2014, defendant filed a form "Application/Petition for Resentencing," seeking to recall his felony sentence, have his conviction be designated a misdemeanor, and be resentenced to a misdemeanor sentence pursuant to section 1170.18. The trial court denied defendant's petition on the ground that section 666.5 "is not covered under Prop[osition] 47." Defendant did not appeal that denial.
Proposition 47, discussed infra, reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. Proposition 47 enacted section 1170.18 to establish procedures by which a person serving a felony sentence at the time of Proposition 47's passage might be resentenced to a misdemeanor. (Page, supra, 3 Cal.5th at p. 1179.)
In January 2015, defendant filed a "Motion to Convert Felony Conviction to Misdemeanor Pursuant to [section] 1170.18 and the Equal Protection Clause" (Motion), which the trial court denied. The trial court explained that the denial "was based on [its] understanding that the charge [section 666.5] does not qualify for [a] section 1170.18 reduction to a misdemeanor." Defendant timely appealed.
On December 16, 2015, in an unpublished opinion, we affirmed the trial court's denial of the motion. In so doing, we did not reach the question of whether a section 666.5 conviction is categorically ineligible for reduction to a misdemeanor pursuant to section 1170.18. Instead, we affirmed because, even if a section 666.5 conviction could be reduced to a misdemeanor under section 1170.18, defendant had not otherwise established his eligibility to have his felony conviction reduced in accordance with that section—i.e., proving his conviction involved stolen property worth $950 or less.
On January 25, 2016, defendant filed his petition for review with the California Supreme Court. On March 14, 2018, the Supreme Court remanded the case for reconsideration in light of its November 2017 decision in Page, supra, 3 Cal.5th 1175.
DISCUSSION
For the reasons that follow, we conclude that a conviction for violating section 666.5 may be eligible for resentencing and reclassification as a misdemeanor under section 1170.18. We, nonetheless, affirm the trial court's denial of defendant's motion because defendant failed to meet his burden to establish that his conviction involved stolen property worth $950 or less.
I. Proposition 47 and Section 1170.18
On November 5, 2014, California voters enacted Proposition 47, "The Safe Neighborhoods and Schools Act," which reduced certain drug-and theft-related offenses to misdemeanors. (Page, supra, 3 Cal.5th at p. 1179.) Proposition 47 created section 1170.18, which states that "[a] person [currently] serving a sentence for a conviction . . . 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 before the trial court that entered the judgment of conviction in his or her case 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." (§ 1170.18, subd. (a).) With respect to a person who has completed his or her sentence for a felony conviction, section 1170.18 allows for that conviction to be designated as a misdemeanor 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." (§ 1170.18, subd. (f).)
Proposition 47 also added section 490.2, which created a new misdemeanor petty theft offense defined as "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950)." (§ 490.2, subd. (a).)
II. Application of Proposition 47 to Section 666.5
The trial court denied defendant's motion on the ground that section 666.5 is not included in section 1170.18's list of code sections for "resentencing in accordance with." Our Supreme Court has rejected such an interpretation of section 1170.18.
In Page, the California Supreme Court held that the lower courts erred in concluding that a defendant with a Vehicle Code section 10851 felony conviction is "categorically ineligible for resentencing" simply because "section 1170.18[] does not expressly refer to Vehicle Code section 10851." (Page, supra, 3 Cal.5th at p. 1180.) Rather, the court in Page noted that section 1170.18 "does permit resentencing to a misdemeanor under . . . section 490.2[] for theft of property worth $950 or less." (Ibid.) Thus, the Supreme Court reasoned that a person convicted of Vehicle Code section 10851 before Proposition 47's passage may be resentenced under section 1170.18 if the person can show that the underlying conduct for the section 10851 conviction would have qualified as a misdemeanor under section 490.2. (Ibid.)
Analyzing Vehicle Code section 10851 in particular, our Supreme Court observed that it "may be violated in several ways" (Page, supra, 3 Cal.5th at p. 1180), namely, that there are "theft and non-theft" violations of that section (id. at p. 1183). Thus, "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing," i.e., only those defendants whose convictions involved theft of a vehicle worth $950 or less. (Id. at p. 1184.) Accordingly, the Page court held that "a defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft—taking a vehicle with the intent to permanently deprive the owner of possession—could (if the vehicle was worth $950 or less) receive only a misdemeanor punishment pursuant to section 490.2 and is thus eligible for resentencing under section 1170.18." (Ibid.)
Vehicle Code section 10851 provides in part: "(a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, 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, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . ."
Applying Page, supra, 3 Cal.5th 1175, here, we find defendant was not categorically ineligible for misdemeanor resentencing or reclassification of his section 666.5 conviction simply because section 666.5 is not expressly referenced by section 1170.18. (Page, supra, 3 Cal.5th at pp. 1184-1185; see also People v. Martinez (2018) 4 Cal.5th 647, 652 (Martinez) ["[T]he mere fact that [a code] section . . . is not one of the code sections enumerated in Penal Code section 1170.18(a) is not fatal to [a] petition for resentencing . . ."].) As in Page, we instead look to whether defendant's violation of section 666.5 would have been a misdemeanor if Proposition 47 had been in effect at the time of his plea and sentencing. (Martinez, supra, 4 Cal.5th at p. 652.)
Before proceeding to analyze section 666.5 in relation to section 1170.18, we pause to consider that the trial court and parties have all apparently assumed that a violation of section 666.5 constitutes an independent, stand alone crime for which a defendant may be convicted. That does not seem clearly correct. The language and structure of section 666.5 suggest it is a penalty provision that attaches to an enumerated substantive crime. (See People v. Lee (2017) 16 Cal.App.5th 861, 869 ["Section 666.5 does not define a new offense and it is not an enhancement; it simply increases the punishment for the crime"]; People v. Carter (1996) 48 Cal.App.4th 1536, 1540 [referring to "enhanced penalty" provision of section 666.5, which was alleged in the information charging defendant with violating Vehicle Code section 10851].)
Section 666.5, subdivision (a) provides in relevant part: "Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code, or felony grand theft involving a motor vehicle [in violation of Section 487] . . . or a felony violation of Section 496d [receipt of stolen vehicle], . . . is subsequently convicted of any of these offenses shall be punished by imprisonment . . . for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment."
What is clear, however, is that a defendant violates section 666.5 by committing a felony violation of either (1) Vehicle Code section 10851, (2) section 487 (grand theft of a motor vehicle), or (3) section 496d (receipt of a stolen vehicle), after having previously been convicted of any of the foregoing. Thus, just as the court held in Page with respect to a Vehicle Code section 10851 violation, if a defendant's section 666.5 violation is predicated upon having stolen a vehicle valued at $950 or less, that defendant is eligible for resentencing or reclassification of the offense as a misdemeanor in accordance with section 490.2. (See Page, supra, 3 Cal.5th at p. 1184 ["A defendant convicted of a felony for stealing a vehicle worth $950 or less (before Prop[osition] 47's passage) would have been guilty only of a misdemeanor had section 490.2 been in effect at the time. This is true regardless of whether the conviction was obtained under . . . section 487 . . . or Vehicle Code section 10851(a)"].)
We do not reach the seemingly unresolved question of whether defendant would be entitled to resentencing or reclassification of his section 666.5 conviction if it were predicated upon receipt of a stolen vehicle (valued at $950 or less) in violation of section 496d. (Compare People v. Williams (May 21, 2018, A143877) _Cal.App.4th_ [Proposition 47 relief available for felony section 496d conviction] with People v. Varner (2016) 3 Cal.App.5th 360, 367, review dism. and cause remanded Aug. 9, 2017, S237679 [resentencing for felony section 496d conviction unavailable under Proposition 47].) Neither party raised this issue. Moreover, even if a section 496d conviction is amenable to Proposition 47 relief, we would still affirm, because, as discussed infra, defendant provided no proof of the vehicle's value.
Here, however, defendant's motion included no showing either that his section 666.5 conviction was predicated upon theft of the vehicle or that the vehicle at issue was worth $950 or less. The trial court therefore properly denied it. (See Page, supra, 3 Cal.5th at p. 1189 [finding denial proper where "[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"].) In this regard, we reaffirm the conclusion in our original opinion in this appeal that the record before us does not disclose whether the victim's loss represented by the amount of restitution ($432.40, plus interest) constitutes the "the value of the . . . property taken" (i.e., the car). (§ 490.2, subd. (a).)
If anything, the record indicates the restitution order was not based on the value of the vehicle. According to the probation report, the victim "indicated he recovered his vehicle without damage; however [he] noted missing property." The victim "note[d that a] portable navigation system, car stereo, portable battery charger, and approximately 5 credit cards in his name [are] missing."
Although we affirm the trial court's denial of defendant's motion, this is without prejudice to the defendant filing a new petition attempting to establish eligibility for relief under section 1170.18. (See Page, supra, 3 Cal.5th at p. 1189 ["[A]s 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"].)
DISPOSITION
The order is affirmed without prejudice to defendant filing a new petition for relief under section 1170.18.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
BAKER, Acting P. J.
MOOR, J.