Opinion
A145179 A145793
05-21-2018
THE PEOPLE, Plaintiff and Respondent, v. CRAIG W. KIRKLAND, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR655341)
I.
INTRODUCTION
These consolidated appeals raise two issues: (1) the denial of appellant Craig Kirkland's petition to recall his sentence pursuant to Penal Code section 1170.18, a provision of Proposition 47, to reduce his conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) from a felony to a misdemeanor, and; (2) the court's termination of his probation and imposition of a two-year state prison sentence. In our initial decision in this case, we concluded Proposition 47 does not apply to a conviction for unlawfully driving or taking a vehicle under Vehicle Code section 10851, and therefore, Kirkland was ineligible for resentencing. The Supreme Court granted review and transferred the case back to us for reconsideration under People v. Page (2017) 3 Cal.5th 1175 (Page). In light of Page, we conclude Kirkland has failed to establish his eligibility for resentencing. We affirm the denial of Kirkland's petition without prejudice to filing a subsequent petition providing eligibility for resentencing.
All further undesignated statutory references are to the Penal Code unless otherwise stated.
We further conclude that after suspending imposition of its sentence to allow Kirkland to participate in residential drug treatment, the court could properly impose a two-year sentence upon terminating his probation. The judgment is affirmed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Sonoma County District Attorney's Office filed a complaint charging Kirkland with two counts: unlawfully driving and taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) (count one) and unlawfully buying and receiving a stolen vehicle in violation of section 496d (count two). The complaint alleges that Kirkland took a 1993 Saturn SL with the intent to either permanently or temporarily deprive the owner of its possession. With regard to count two, it alleges the 1993 Saturn had been "stolen" in a "matter constituting theft and extortion" and was found in possession of Kirkland and his codefendants from August 8 to September 2, 2014.
At the plea hearing, the prosecutor informed the court that count two was now a misdemeanor by operation of Proposition 47. The prosecutor stated the value of the 1993 Saturn was "approximately $700."
Kirkland pled no contest to a violation of section 10851, subdivision (a), and the second count was dismissed. On his "Advisement of Rights, Waiver and Plea Form for Felonies," the charge was listed as Vehicle Code section 10851, subdivision (a) and "auto theft." The factual basis for the plea was derived from the police reports. The plea was conditioned on Kirkland receiving a stipulated term of custody at the low end of the sentencing range of 16 months, or probation if Kirkland was accepted into a residential treatment program for six months or more. The plea agreement specified that if Kirkland committed another crime pending sentence or violated any of the terms of release, the agreement was "canceled."
At sentencing, Kirkland presented evidence of his acceptance into a residential treatment program. The court commented in response as follows: "[F]or the next 36 months, you'll be on formal probation. Imposition of judgment is suspended."
On March 27, 2015, the court accepted Kirkland's guilty plea to two new charges: count one, identity theft in violation of section 530.5, subdivision (c)(1), and count two, false identification to a police officer in violation of section 148.9, subdivision (a). The court stated that Kirkland had been given the option of residential treatment and had failed to take advantage of it. The court advised Kirkland of his rights. The court identified count one and asked Kirkland: "How do you plead to that count?" The record reflects: "There is a sotto voce discussion between [Kirkland] and counsel." Kirkland then stated: "Yes." The court set forth count two and asked Kirkland how he pleaded to that count and he responded: "no contest." The court found him guilty of both counts. Kirkland waived his right to a probation hearing and the court found him in violation of probation.
The court held a sentencing hearing on April 30, 2015. Respondent argued that Kirkland had failed to avail himself of treatment and committed additional crimes so the court should impose a prison term. Kirkland admitted that he "blew it" and failed to show up for treatment, but he requested a further opportunity to seek treatment. The court denied probation and sentenced him to six months county jail on the charges of identity theft and false identification. On the earlier charge of taking or driving a vehicle, the court imposed a two-year state prison term.
Kirkland filed a propria persona petition for resentencing under Proposition 47. On July 5, 2015, the court held a hearing and found Proposition 47 did not apply to Vehicle Code section 10851.
III.
DISCUSSION
Kirkland argues the trial court acted illegally in rejecting his petition to reduce his conviction to a misdemeanor pursuant to Proposition 47.
At oral argument Kirkland's counsel argued for the first time that the trial court acted illegally in accepting the plea as a felony to Vehicle Code section 18051. Proposition 47 was passed on November 4, 2014 and became effective the following day on November 5, 2014. (Cal. Const., art. II, § 10, subd. (a).) Kirkland's plea hearing was on November 13, 2014. At the hearing, the prosecutor informed the court that count two, buying and receiving a stolen vehicle pursuant to section 496d, was now a misdemeanor by operation of Proposition 47. Neither the prosecution nor defense counsel mentioned the application of Proposition 47 to count one. Even if defense counsel should have raised this issue, as discussed here, the court did not violate the law in accepting the plea as a felony because Vehicle code section 10851 is a "wobbler" and can be charged and sentenced as either a felony or a misdemeanor. At the time of Kirkland's plea and later sentencing, it was unclear whether Proposition 47 applied to Vehicle Code section 10851 and that was not resolved until the Page decision in 2017. (See In re J.R. (Apr. 26, 2018, No. H043051) ___ Cal.App.5th ___, 2018 WL 1960028.) Vehicle Code section 10851 may be deemed a felony if it was based on non-theft driving or if the vehicle was worth more than $950.
The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) " 'In interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles that govern statutory construction.' " (People v. Perkins (2016) 244 Cal.App.4th 129, 136, quoting People v. Rizo (2000) 22 Cal.4th 681, 685.)
In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act), which reduced certain drug- and theft-related offenses to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091 (Rivera).) "These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.)
Proposition 47 created a new resentencing scheme for persons serving felony sentences for offenses which were made misdemeanors by the Act. (§ 1170.18, subd. (a).) A person currently serving a sentence for a felony conviction may petition for recall of that sentence if the person would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense. (Rivera, supra, 233 Cal.App.4th at p. 1092.)
Proposition 47 added section 490.2, which provides as follows: "Notwithstanding 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).) Section 490.2 is explicitly listed in section 1170.18 as one of "those sections [that] have been amended or added" by Proposition 47. (§ 1170.18, subd. (a).) Section 1170.18 does not specifically include Vehicle Code section 10851 as one of the code sections amended or added by Proposition 47. (§ 1170.18.)
In Page, our Supreme Court resolved the issue of whether a felony violation of Vehicle Code section 10851 was eligible for resentencing under Proposition 47. (Page, supra, 3 Cal.5th at p. 1180.) The court explained Vehicle Code section 10851 may be violated in more than one way: by theft of the vehicle and by unlawfully driving the vehicle without the intent to steal it, a non-theft offense. (Page, at pp. 1180, 1182-1183.) Only those 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 misdemeanor punishment pursuant to section 490.2 and [are] thus eligible for resentencing under section 1170.18." (Page, at p. 1184.) The court concluded "that obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged. A defendant who, at the time of Proposition 47's passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is therefore eligible for resentencing under section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, at p. 1187.)
A defendant seeking resentencing bears the burden of showing that (1) his conviction was based upon his theft of a vehicle, and (2) the vehicle was worth $950 or less. (Page, supra, 3 Cal.5th at p. 1188.) The evidence will ordinarily come from the record of conviction, such as trial testimony or the factual basis for a negotiated plea. (Id. at p. 1189.) In Page, the "[d]efendant's petition included no allegations, testimony, or record references to show either" requirement; however, the court held that "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. Such a petition should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18. [Citations.]" (Ibid.)
The ultimate burden of proving eligibility for resentencing lies with the petitioner. (People v. Romanowski (2017) 2 Cal.5th 903, 916.) Kirkland bears the burden of establishing his eligibility by showing both that the vehicle was worth less than $950 and that this conviction was based on theft, rather than posttheft driving of the vehicle. (Page, supra, 3 Cal.5th at p. 1189.)
On the issue of the value of the vehicle, the only evidence in the record is the prosecutor's statement at the plea hearing: "I did review the marke[t] value of the Saturn involved, and it is approximately $700, which is below the $950 threshold." The prosecutor made the statement as it related to the section 496d charge which the prosecutor stated was a misdemeanor under Proposition 47.
Even if we were to accept the prosecutor's statement of the vehicle's value as evidence to support resentencing, Kirkland has failed to establish theft under section 10851. From this record, we cannot determine if Kirkland's conviction was based on theft. The factual basis for Kirkland's guilty plea was derived from the police reports. The police reports, however, are not included in the record on appeal. Given Kirkland was charged with two other individuals, we cannot determine if he stole the vehicle or was merely involved with posttheft driving of the vehicle. Kirkland must establish his 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]." (Page, supra, 3 Cal.5th at p. 1188.) From the record, we cannot determine if Kirkland is guilty of a theft offense.
Kirkland's petition for resentencing did not provide any additional evidence to support his eligibility. Here, because the trial court concluded that Proposition 47 did not apply to a violation of Vehicle Code section 10851, it did not hold a hearing to establish the facts underlying Kirkland's conviction and made no findings regarding the value of the vehicle, or whether Kirkland was involved with the actual theft of the vehicle or merely posttheft driving. Accordingly, we affirm the trial court's denial of Kirkland's petition without prejudice to subsequent consideration of a petition demonstrating his eligibility for resentencing under Proposition 47. B. Kirkland Two-year Sentence Was Lawful After His Probation Was Revoked
We need not a reach Kirkland's equal protection argument because we conclude that, if eligible, he is entitled to resentencing.
Kirkland argues that after he committed new offenses in violation of his probation, the court improperly considered these new convictions in sentencing him. Kirkland also argues the court should not have considered his two additional crimes because his pleas to identity theft and false identification to a police officer were invalid. He contends that at the time of the second plea hearing, the court did not obtain an express waiver of rights, and it failed to secure an unequivocal plea of guilty or no contest to the first count.
"Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect." (§ 1203.2, italics added.) At the time of sentencing, when the trial court grants probation, it may either suspend imposition of the sentence or impose sentence and suspend its execution. If it imposes sentence and suspends execution, then the court lacks the power to reduce or increase the sentence when it revokes provocation. (People v. Howard (1997) 16 Cal.4th 1081, 1084 (Howard); Cal. Rules of Court, rule 4.435(b)(1).) However, if "the court has suspended imposition of sentence and later revokes the defendant's probation, then the court has undisputed authority to choose from all the initially available sentencing options. (§ 1203.2, subd. (c).)" (Howard, at p. 1084, italics added.) "When the trial court suspends imposition of sentence, no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation. [Citations.]" (Id. at p. 1087.)
Here the court placed Kirkland on 36 months formal probation with the requirement that he participate in a residential drug treatment program. The court then suspended imposition of the sentence. Kirkland failed to participate in a residential treatment program as a required condition of his probation and committed two new crimes. Under these circumstances, when the court revoked Kirkland's probation, it could choose to sentence him based on all available options. (Howard, supra, 16 Cal.4th at p. 1084.)
Kirkland next argues that when his probation was revoked, the court could only sentence him to the 16-month term specified in the plea agreement. However, that term was agreed to as an alternative to a grant of probation. Moreover, it was understood that if Kirkland violated his probation and committed another crime during the period of probation, the court would no longer be limited by the terms of the original plea agreement. In this regard, the written plea agreement expressly provided: "I understand that if pending sentencing I commit another crime, violate any condition of a Supervised O.R. release, or willfully fail to appear for my sentencing hearing, this agreement will be canceled, I will be sentenced unconditionally, and I will not be allowed to withdraw my guilty/no contest plea(s)."
"[I]t is well established that when 'a defendant granted probation as part of a plea bargain violates that probation, subsequent sentencing is not limited by the terms of the original plea.' " (People v. Segura (2008) 44 Cal.4th 921, 934, quoting People v. Martin (1992) 3 Cal.App.4th 482, 487.) " ' "A consummated plea bargain is not a perpetual license to a defendant to violate his probation. The plea bargain does not insulate a defendant from the consequences of his future misconduct. 'A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever.' " ' [Citation.]" (People v. Segura, at p. 934.)
Here, Kirkland was given 36 months' probation and the opportunity to participate in treatment, he failed to take advantage of that opportunity, and then committed new crimes. The court could, therefore, sentence him to the middle term for his crime of two years in prison.
Finally, Kirkland argues that the court improperly relied on his pleas to the two new crimes in increasing his sentence because his pleas were invalid.
On March 27, 2015, the court accepted Kirkland's guilty plea to two new charges: count one, identity theft in violation of section 530.5, subdivision (c)(1), and count two, false identification to a police officer in violation of section 148.9, subdivision (a). While the colloquy at the plea hearing is not a model of clarity, Kirkland did, in fact, plead to the two crimes. Kirkland's counsel stated at the start of the hearing that Kirkland admitted his fault and he was "ready to throw himself on the mercy of the Court." The court advised Kirkland of his right to a jury trial, the right to subpoena, confront, and cross-examine witnesses, the right to testify in his own defense, and the right to remain silent. The court asked Kirkland if he understood the rights he was giving up and he responded, "Yes."
The court stated that Kirkland would be pleading to counts one and two with the dismissal of count three and asked if Kirkland had any questions before the plea. Kirkland said, "No, I do not." The court identified count one and asked Kirkland: "How do you plead to that count?" The hearing transcript states: "There was a sotto voce discussion between defendant and counsel." Defendant then stated: "Yes." The court then set forth count two and asked Kirkland how he pleaded to that count and he responded: "no contest." Kirkland never suggested that he was not, in fact, pleading to both counts and he expressly acknowledged he understood his rights.
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.]" (People v. Cross (2015) 61 Cal.4th 164, 170.) The court must inform the defendant of three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. The court must obtain a waiver of each of these rights. (Ibid.)
Kirkland argues on appeal that the court failed to obtain an express waiver or advise him of the consequences of his plea, but this is not supported by the reporter's transcript. The court expressly advised Kirkland of each of his rights and he stated, on the record, that he understood them. Therefore, we conclude Kirkland's pleas were knowingly and voluntarily entered. The court could properly consider them in revoking Kirkland's probation. Further, contrary to Kirkland's contention, the two new crimes were not the "sole basis" for revoking probation as Kirkland had failed to participate in residential treatment as required by the plea agreement.
IV.
DISPOSITION
The judgment is affirmed without prejudice to Kirkland filing a petition demonstrating his eligibility for resentencing on the Vehicle Code section 10851 count under Proposition 47.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------