Opinion
F075639
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. MAURICE DEWAYNE HUNT, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F06905388)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. William J. Capriola, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Smith, J.
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INTRODUCTION
Appellant Maurice Dewayne Hunt filed an application for reduction of felony conviction pursuant to Proposition 47, seeking reduction of a Vehicle Code section 10851, subdivision (a) felony conviction to a misdemeanor. Hunt contends the trial court erred when it denied his application on the grounds a section 10851 conviction was statutorily ineligible for relief. In light of People v. Page (2017) 3 Cal.5th 1175, 1189 (Page), concluding section 10851 convictions are not statutorily ineligible for relief under Proposition 47, we reverse and remand for further proceedings.
References to code sections are to the Vehicle Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On July 5, 2016, Hunt filed an application for reduction of felony conviction pursuant to Proposition 47. The application listed five different case numbers and convictions. Hunt requested a hearing on the application. Concurrent with the filing of the application, he filed a petition for resentencing under Proposition 47. The petition listed the same case numbers and convictions as were listed in the application. We focus on the facts applicable to the section 10851 conviction, as that conviction is the subject of this appeal.
Hunt was charged in 2006 with a violation of section 10851 and other offenses. On October 17, 2016, Hunt pled to the section 10851 offense. The plea form in which Hunt agreed to plead to the section 10851 offense states that the plea to the section 10851 offense is based on the "theory of taking rather than driving." The abstract of judgment prepared for this conviction does not reflect an amount for restitution to the victim; the Penal Code section 1204.4 restitution fine was fixed at $300.
Hunt's petition and application were referred to the district attorney's office for review. On July 21, 2016, the district attorney filed a response indicating the People found Hunt ineligible for relief on the section 10851, subdivision (a) conviction because it was not an offense listed in Penal Code section 1170.18. The trial court set the matter for a contested hearing and directed that counsel be appointed for Hunt.
On September 26, 2016, the trial court clarified that all the cases listed by Hunt in the application and petition would proceed by way of application. Hunt was not present, as he was incarcerated in a federal penitentiary. The public defender indicated that Hunt had not authorized that office to appear on his behalf and that office did not believe it would be able to obtain Hunt's presence since he was in a federal penitentiary. The trial court took all matters off calendar.
On December 12, 2016, the trial court ordered the public defender's office to prepare a transport order for Hunt to appear at the January 30, 2017 hearing on the application because Hunt had elected to represent himself.
At the January 30, 2017 hearing, the public defender represented to the trial court that Hunt wanted to represent himself; Hunt had not authorized the public defender to appear on his behalf; and Hunt was in federal custody. The trial court stated Hunt was not present, "so the case is off calendar."
The trial court received a letter from Hunt on February 14, 2017, in which he states he wants to know the status of his Proposition 47 application. Hunt further states that he was aware a hearing was held on January 30, 2017, but he "was not present, and at this point I don't know why." On March 13, 2017, the trial court received a letter from Hunt requesting he "be brought before the court for a Prop. 47" hearing.
On April 11, 2017, the trial court issued an order denying Hunt's application for Proposition 47 relief on the basis section 10851 offenses were not eligible for relief under Penal Code section 1170.18.
On May 11, 2017, Hunt filed an appeal of the April 11, 2017 order.
The notice of appeal also references a "3/3/17" order, but there is no such order in the record. --------
DISCUSSION
Hunt contends Penal Code section 1170.18 should be interpreted to include convictions pursuant to section 10851 and that section 10851 convictions are not statutorily ineligible for Proposition 47 relief. The People maintain section 10851 is not included in Proposition 47 and such offenses are statutorily ineligible for relief.
Proposition 47
"'On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act [(the Act)] ....' [Citation.] 'Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).'" (People v. Morales (2016) 63 Cal.4th 399, 404 (Morales).)
"Proposition 47 also created a new resentencing provision, to wit, [Penal Code] section 1170.18. Under that statute, '[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the [Act] had [the 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' the various statutes that were amended or added by the Act. ([Pen. Code,] § 1170.18, subd. (a).)" (People v. Bradshaw (2016) 246 Cal.App.4th 1251, 1256-1257.)
According to the Legislative Analyst's analysis provided with the voter's guide:
"Under current law, theft of property worth $950 or less is often charged as petty theft, which is a misdemeanor or an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occur if the crime involves the theft of certain property (such as cars) or if the offender has previously committed certain theft-related crimes. This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically, such crimes would no longer be charged as grand theft solely because of
the type of property involved or because the defendant had previously committed certain theft-related crimes." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.)
With respect to resentencing, the Legislative Analyst's analysis explained that the "measure allows offenders currently serving felony sentences for the above crimes to apply to have their felony sentences reduced to misdemeanor sentences. In addition, certain offenders who have already completed a sentence for a felony that the measure changes could apply to the court to have their felony conviction changed to a misdemeanor." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 36.) As our Supreme Court has explained, the analysis "explains in simple language that certain offenders currently serving felony sentences for the reduced crimes may have their sentences reduced to misdemeanor sentences." (Morales, supra, 63 Cal.4th at pp. 406-407.)
These changes were reflected in added sections to the Government Code (§§ 7599, 7599.1 & 7599.2), amended and added sections to the Penal Code (§§ 459.5, 490.2, 1170.18, 473, 476a, 496 & 666), and amended sections to the Health and Safety Code (§§ 11350, 11357 & 11377). (See Voter Information Guide, Gen. Elec., supra, text of Prop. 47, §§ 4-14, pp. 70-74.) Proposition 47 did not specifically address Vehicle Code section 10851 convictions. (§ 1170.18, subd. (a).)
Page Decision
Appellant's brief in this case was filed August 15, 2017; respondent's brief was filed November 14, 2017. No reply brief was filed. On November 30, 2017, after briefing in this case was complete, the California Supreme Court issued its decision in Page, supra, 3 Cal.5th 1175, in which it concluded:
"Whatever difficulties of proof defendants seeking relief under [Penal Code] section 1170.18 may face, Vehicle Code section 10851 convictions are not categorically ineligible for resentencing, and defendants serving sentences for that offense are due an opportunity to prove their eligibility." (Page, supra, 3 Cal.5th at p. 1189.)
The court in Page did clarify that section 10851 convictions eligible for reduction to misdemeanors or resentencing were those based upon vehicle theft, as opposed to post-theft driving. (Page, supra, 3 Cal.5th at pp. 1188-1189.) If a defendant obtains an automobile worth $950 or less by theft, the theft constitutes petty theft and "is punishable only as a misdemeanor." (Id. at p. 1187.)
Hunt bears the burden of proof to establish his eligibility for reduction of the section 10851 conviction to a misdemeanor. (Page, supra, 3 Cal.5th at p. 1188.) The record of Hunt's conviction states clearly that his plea to the section 10851 offense was based upon theft. Thus, the requirement that the conviction be based upon theft and not post-theft driving was satisfied. (Page, supra, 3 Cal.5th at p. 1188.) The record, however, does not contain clear evidence of the value of the vehicle taken by Hunt. Hunt may have intended to produce this evidence at the contested hearing, at which he expected to be present because of the trial court's order that a transport order be issued.
Consequently, in light of the holding of Page, we will reverse the trial court's order denying Hunt's application for Proposition 47 relief and remand the matter for further proceedings. On remand, the trial court shall appoint counsel for Hunt; notify Hunt that he will not be transported for the hearing; and provide Hunt and/or defense counsel an opportunity to submit competent evidence of the 2006 value of the vehicle taken by Hunt.
DISPOSITION
The April 11, 2017 order denying the application for Proposition 47 relief on the basis section 10851 offenses were not eligible for relief under Penal Code section 1170.18 is reversed and the matter is remanded for further proceedings.