Opinion
H042361
02-02-2017
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO OLEA GALEANA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1489429)
Defendant Gustavo Olea Galeana pleaded no contest to felony theft or unauthorized use of a vehicle, misdemeanor possession and being under the influence of a controlled substance, and driving without a license, and admitted two prior strike offenses. The trial court sentenced Galeana to 32 months in state prison and dismissed two of the charged counts in accordance with the plea agreement.
Galeana appeals only from the sentence or other matters occurring after the plea that do not affect the validity of the plea. (Cal. Rules of Court, rule 8.304(b).) We appointed counsel to represent Galeana in this court. On appeal, his counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that Galeana was notified that an independent review under Wende was being requested. We advised Galeana of his right to submit written argument on his own behalf within 30 days. Thirty days have elapsed, and Galeana has not submitted a letter brief.
Pursuant to Wende, we have reviewed the entire record and have concluded that there are no arguable issues. We will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110.)
FACTUAL AND PROCEDURAL BACKGROUND
Galeana was arrested in San Jose on July 25, 2014, while driving a vehicle that the investigating officers later determined had been stolen. The Santa Clara County District Attorney charged Galeana in a complaint filed on July 29, 2014, with felony theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a); count 1), felony possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), misdemeanor being under the influence of methamphetamine (id., § 11550, subd. (a); count 3), misdemeanor possession of controlled substance paraphernalia (id., former § 11364.1; count 4), possession of motor vehicle key with intent to use it in commission of an unlawful act and without consent of the owner (Pen. Code, § 466.7; count 5), and driving without a license (Veh. Code, § 12500, subd. (a); count 6). The complaint alleged two prior strike offenses (§§ 667, subds. (b)-(i), 1170.12) and one prison prior (§ 667.5, subd. (b)).
Unspecified statutory references are to the Penal Code.
In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which made certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.) Galeana's counsel filed a bench brief with the trial court stating that in light of Proposition 47, the district attorney's office had agreed that the methamphetamine possession charge (Health & Saf. Code, § 11377, subd. (a)) should be changed to a misdemeanor. Defense counsel argued for similar application of Proposition 47 to the vehicle theft charge under Vehicle Code section 10851, asserting that the stolen vehicle had a value of less than $950 and, as a matter of statutory construction, was a petty theft offense under newly-created Penal Code section 490.2. The defense also argued that federal and state equal protection principles required misdemeanor treatment of a section 10851 violation involving a vehicle of value under $950. As evidence that the vehicle value was less than $950, defense counsel attached as exhibits to the bench brief a copy of the California Highway Patrol vehicle report and a print-out showing a Kelley Blue Book value of $781 for that vehicle (a 1993 Honda Accord, DX Sedan 4D with 152,249 miles in "fair condition").
Enacted by the voters on November 4, 2014 (Prop. 47, as approved by voters, Gen. Elec., Nov. 4, 2014).
References to section 10851 are to the Vehicle Code.
Section 490.2 provides, in part: "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 . . . ." (§ 490.2, subd. (a).)
The district attorney's office filed opposition to the bench brief and disputed the application of Proposition 47 to the section 10851 charge. At a hearing on February 19, 2015, the trial court agreed with the district attorney and rejected defense counsel's arguments. The court ruled that unlike those offenses specifically enumerated in Proposition 47, section 10851 was "not . . . subject to the mandatory misdemeanor treatment . . . ." The parties then presented a negotiated resolution to the trial court.
Galeana pleaded no contest to counts 1, 2, 3, and 6 of the complaint and admitted the two strike priors in exchange for dismissal of counts 4 and 5 and a state prison sentence of 32 months. The trial court confirmed that count 2 (possession of a controlled substance; Health & Saf. Code, § 11377, subd. (a)) would be "reduced pursuant to Proposition 47" to a misdemeanor, and reviewed Galeana's understanding and waiver of his rights, the charges against him, his plea, and the agreed-upon sentence of 32 months, noting the maximum sentence could be six years.
On April 22, 2015, the trial court sentenced Galeana in accordance with the plea agreement. The court denied probation and imposed the low-term of 32 months in state prison on count 1 (the section 10851 vehicle theft offense), enhanced due to the prior strike admissions, to be followed by a three-year period of parole supervision, and further imposed a term of 60 days in county jail for counts 2, 3, and 6, to run concurrently with the sentence on count 1, and ordered Galeana to register as a narcotics offender. The court awarded Galeana 544 days of custody credits for time served and ordered Galeana released on counts 2, 3, and 6 only.
The court ordered general restitution and imposed the following fines and fees in connection with count 1: (1) a restitution fine of $300, plus an additional, suspended parole revocation fine of $300 (§§ 1202.4, subd. (b), 1202.45); (2) a $40 court security fee (§ 1465.8); (3) a $30 criminal conviction assessment fee (Gov. Code, § 70373); (4) a $129.75 criminal justice administration fee to the City of San Jose; and (5) a $4 emergency medical air transportation fine. The court also imposed fines and fees in connection with counts 2, 3, and 6 of: (1) a court security fee of $120 (§ 1465.8); (2) a criminal conviction assessment of $90 (Gov. Code, § 70373); (3) a $100 criminal laboratory analysis fee plus penalty assessment; and (4) a $4 emergency medical air transportation fine. The court elected not to impose the drug program fee or AIDS education fine based on Galeana's inability to pay, and dismissed counts 4 and 5 of the complaint.
On April 24, 2015, Galeana filed a timely notice of appeal from the judgment entered on April 22, 2015. There is no indication in the record that Galeana filed a certificate of probable cause in the superior court. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)
ANALYSIS
We have conducted an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal.4th 106 and conclude there are no arguable issues on appeal.
Although we find no arguable issues on the present record, People v. Kelly directs us to include in opinions in Wende appeals such information or analysis as may be helpful in a future proceeding. (People v. Kelly, supra, 40 Cal.4th at p. 124.) For this reason, we note that Galeana's arguments to the trial court concerning his charge under section 10851 occurred prior to conviction or imposition of sentence for that offense. Whether theft convictions under section 10851 can be eligible for resentencing under Proposition 47 is an issue currently awaiting guidance from the California Supreme Court. (See People v. Page, review granted Jan. 27, 2016, S230793; People v. Haywood, review granted Mar. 9, 2016, S232250; People v. Solis, review granted Jun. 8, 2016, S234150; People v. Ortiz, review granted Mar. 16, 2016, S232344; People v. Sauceda, review granted Nov. 30, 2016, S237975.) Upon resolution of that question by the court, Galeana may be entitled to seek relief under Proposition 47. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.