Opinion
2d Crim. No. B268707
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW SEAN ASHLEY FELIX, Defendant and Appellant.
Bases & Bases and Arielle Bases for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Analee J. Brodie, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1479726)
(Santa Barbara County) OPINION ON TRANSFER FROM SUPREME COURT
Appellant Andrew Sean Ashley Felix pled no contest to a felony count of unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851, subdivision (a). He also admitted the truth of a prior strike conviction. (Pen. Code, §§ 136.1, 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Appellant was sentenced to 32 months in state prison.
All further statutory references are to the Vehicle Code unless otherwise stated.
Appellant petitioned to reduce his conviction to a misdemeanor pursuant to Proposition 47. The trial court denied the petition, and he appealed, claiming his offense was a theft crime which falls within the ambit of Penal Code section 490.2. We rejected that claim, noting "[t]here is no consensus among the courts of appeal on this issue, which is currently on review before our Supreme Court." (People v. Felix (Nov. 14, 2016, B268707) [nonpub. opn.].) Ultimately, we agreed with the view that section 10851 does not fall within the resentencing provisions of Proposition 47. (Felix, supra, B268707.)
Proposition 47 added Penal Code section 490.2, which states, in relevant part: "(a) Notwithstanding [Penal Code] Section 487 or any other provision of law defining grand theft, 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) shall be considered petty theft and shall be punished as a misdemeanor . . . ."
After granting appellant's petition for review, the Supreme Court transferred the matter back to us for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175 (Page). For the reasons stated below, we reverse the trial court's order denying appellant's Proposition 47 petition and remand the matter to allow appellant the opportunity to amend his petition and to prove the elements required for relief.
FACTS AND PROCEDURAL BACKGROUND
The facts are taken from the transcript of the preliminary hearing, which was a factual basis for the plea. --------
On April 28, 2015, Officer Scott Roberts of the Santa Maria Police Department saw appellant driving a red Honda Accord and recognized him as a probationer. Andrea Perez was a passenger in the vehicle.
Officer Roberts conducted a traffic stop, and a subsequent check of the license plate number revealed that the vehicle was stolen. Officer Roberts noticed that appellant had keys that appeared to be altered or shaved, and he surmised the keys were used to steal vehicles.
Appellant told the officer he had borrowed the car from an individual named Wess Jones and that he was doing mechanical work on the car. Perez claimed that appellant had purchased the vehicle from Jones. Officer Roberts contacted Jones, who stated he did not have possession of a red Honda.
The registered owner of the vehicle, Antonio Rosalez, reported that the vehicle had been missing since the previous day. Rosalez stated he did not know Jones and had not given anyone permission to take the vehicle.
The information filed by the District Attorney alleged that "[o]n or about April 28, 2015, in the County of Santa Barbara, the crime of UNLAWFUL DRIVING OR TAKING OF A VEHICLE, in violation of VEHICLE CODE SECTION 10851 [subdivision] (a), a Felony, was committed by [appellant], who did unlawfully drive and take a certain vehicle, to wit: 91 RED HONDA ACCORD, then and there the personal property of ANTONIO MACIAL ROSALE[Z] without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle." Appellant was held to answer on the charge.
Appellant pled no contest to the allegation "that on or about April 28th, 2015 in the county of Santa Barbara [he] committed the crime of unlawful driving or taking of a vehicle in violation of . . . section 10851(a), a felony." Appellant later moved to withdraw the plea. He declared that he did not steal the vehicle, that he did not know it was stolen, and that he only pled no contest because he believed he was guilty of violating section 10851 because he was driving a stolen vehicle. The trial court denied the motion.
Prior to sentencing, appellant petitioned to reduce his conviction to a misdemeanor. The trial court denied the petition without holding an evidentiary hearing. It concluded the petition was premature.
DISCUSSION
In Page, the Supreme Court held that section 10851 convictions "are not categorically ineligible for resentencing" under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) The defendant seeking resentencing bears the burden of establishing his or her eligibility by showing the vehicle was worth $950 or less and 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 [citation]." (Id. at p. 1188.) The petition at issue in Page "included no allegations, testimony, or record references to show either that his . . . section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less." (Id. at p. 1189.) On that basis, the Supreme Court determined the defendant's petition was properly denied, but that he was "entitled to an opportunity to file a new petition meeting the statutory requirements." (Ibid.)
Here, appellant's petition was supported by evidence that the vehicle's value was less than $950, and the People do not appear to contest that evidence. In their supplemental briefs, however, the parties dispute whether the conviction rested on theft of the vehicle. The plea form reveals that appellant pled no contest to the "unlawful driving or taking of a vehicle without the consent of the owner," but nothing in the record definitively establishes whether the conviction was based on theft of the vehicle, as opposed to posttheft driving or a taking without the intent to permanently deprive the owner of possession. We conclude the trial court erred by denying appellant an evidentiary hearing on this issue and also on the issue of the vehicle's value.
DISPOSITION
The order denying the Proposition 47 petition is reversed and the matter remanded to allow appellant the opportunity to amend his petition and to prove the elements required for relief.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
John F. McGregor, Judge
Superior Court County of Santa Barbara
Bases & Bases and Arielle Bases for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.