Opinion
C079671
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL MONTALVO MERCADO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 11NCR09001, 12NCR09089, 12NCR09093, 12NCR09489) OPINION ON TRANSFER
Defendant Emanuel Montalvo Mercado appeals from the trial court's orders denying his petitions for reduction of his felony convictions to misdemeanors pursuant to Penal Code section 1170.18, subdivision (f) in four separate cases. Two of these cases involve an automobile -- one for taking and driving a vehicle and the other for receiving a stolen vehicle. Defendant's other two cases involve the transportation of methamphetamine. He contends the trial court erred in finding these felony convictions were ineligible for reduction under Proposition 47.
Further section references are to the Penal Code unless otherwise indicated.
Defendant's notice of appeal purports to appeal the trial court's custody credit calculation and does not mention the trial court's denial of his petitions for resentencing. Because defendant's notice of appeal is timely as to the issues raised and we have an adequate record and briefing, we will exercise our discretion to reach the merits of defendant's claim. (See People v. Jones (1995) 10 Cal.4th 1102, 1106-1108, disapproved on other grounds in In re Chavez (2003) 30 Cal.4th 643, 656.) Defendant does not argue in his brief on appeal that the trial court erred in calculating his custody credits.
Originally, we agreed with defendant but only as to his conviction for unlawful taking and driving a vehicle. We disagreed regarding defendant's conviction for receiving a stolen vehicle and convictions for transportation of a controlled substance. Accordingly, we affirmed without prejudice to consideration of a petition providing evidence of defendant's eligibility as to his conviction for unlawful taking and driving a vehicle.
Our Supreme Court granted review but deferred further action in the case pending disposition of a related issue in Orozco. (People v. Orozco (2020) 9 Cal.5th 111.) Following its decision in Orozco, the court transferred this matter back to us with directions to vacate our decision and reconsider the cause in light of Orozco. In Orozco, the court concluded Proposition 47 does not apply to receipt of stolen property (§ 496d). (Orozco, at p. 115.) We therefore affirm defendant's felony conviction for receiving a stolen motor vehicle. However, in light of our Supreme Court's recent decision in Bullard, we modify our holding with respect to defendant's felony unlawful taking and driving a vehicle conviction. (See People v. Bullard (2020) 9 Cal.5th 94.)
FACTUAL AND PROCEDURAL BACKGROUND
In January 2012, defendant pled no contest to one count of transportation of methamphetamine pursuant to the statute then in effect, which did not require defendant transport the methamphetamine for sale as the current statute does. (See People v. Eagle (2016) 246 Cal.App.4th 275, 278.) The minute order from defendant's plea hearing provides the parties stipulated defendant possessed the methamphetamine for personal use.
In February 2012, defendant was charged with two offenses related to the taking and driving of a 1998 Honda Civic. Before resolving this case and while out on bail, defendant was again arrested and charged with two offenses and an on-bail enhancement related to the taking and driving of a 1992 Honda Civic. He resolved these cases at the same time by pleading no contest to receiving the stolen 1998 Honda Civic (§ 496d, subd. (a)), and unlawfully taking and driving the 1992 Honda Civic (Vehm. Code, § 10851) while released on bail (§ 12022.1).
In December 2012, defendant again pled no contest to one count of transportation of methamphetamine pursuant to the statute then in effect, which did not require he transport the methamphetamine for sale. (See People v. Eagle, supra, 246 Cal.App.4th at p. 278.)
Defendant petitioned for reduction of his felony drug offenses to misdemeanors. The prosecution opposed defendant's petitions and also opposed reduction of the car offenses in defendant's outstanding cases. The court found all of these convictions were ineligible for resentencing under section 1170.18 and thus it could not reduce any of them to misdemeanors. Defendant appeals.
DISCUSSION
"In November 2014, the voters passed Proposition 47, The Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or 'wobblers' to misdemeanors. Proposition 47 reclassified some offenses by amending the statutes that defined those crimes. As relevant here, Proposition 47 amended [Health and Safety Code] section 11377 to punish as a misdemeanor the possession of a controlled substance. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 13, p. 73 (Voter Information Guide).) In other instances, Proposition 47 added new provisions to the Penal Code carving out a lesser crime from a preexisting felony (see Voter Information Guide, supra, § 5, p. 71 [creating Pen. Code, § 459.5 to distinguish the misdemeanor of 'shoplifting' from the felony of burglary]) or redefining how a term is understood throughout the California Codes (see id., § 8, p. 72 [adding Pen. Code, § 490.2 to lower the potential punishment for certain categories of grand theft '[n]otwithstanding . . . any other provision of law defining grand theft' (italics omitted)]). Through its various provisions, Proposition 47 made clear that certain types of criminal conduct once punishable as felonies now constitute only misdemeanors." (People v. Martinez (2018) 4 Cal.5th 647, 651.)
The initiative also provided that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
"A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility." (People v. Page (2017) 3 Cal.5th 1175, 1188.) If the defendant fails to meet this burden, the trial court's order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (People v. Perkins (2016) 244 Cal.App.4th 129, 139.) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court." ' " (Ibid.)
I
Car Offenses
Defendant contends the trial court erred when it found his felony convictions for unlawful taking or driving a vehicle and receiving a stolen vehicle ineligible for reduction. We agree but only to defendant's conviction for unlawful taking or driving a vehicle.
In Page, our Supreme Court determined that "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing." (People v. Page, supra, 3 Cal.5th at p. 1184.) Specifically, the court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, at p. 1187; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for redesignation after the sentence has been completed].) The court observed that "while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under [Vehicle Code] section 10851, it is, in effect, a form of grand, rather than petty, theft." (Page, at p. 1186.)
Under Page, to establish eligibility for reduction of a Vehicle Code section 10851 conviction, the defendant must show (1) the conviction was based on theft of the vehicle, rather than on posttheft driving or on a taking without the intent to permanently deprive the owner of possession, and (2) the vehicle was worth $950 or less. (People v. Page, supra, 3 Cal.5th at p. 1188.) In Page, the court found the defendant's petition was properly denied where it contained "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." (Page, at pp. 1180, 1189.) The court determined, however, the defendant was "entitled to an opportunity to file a new petition" because "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 . . . neither had yet been judicially articulated when defendant submitted his petition." (Page, at p. 1189.) The court concluded that the trial court's order denying the defendant's petition should be "affirmed without prejudice to consideration of a petition providing evidence of his eligibility." (Id. at p. 1190.)
Since our original decision in this matter, our Supreme Court has revisited this issue. In Bullard, the court determined the sentence reduction provisions of Proposition 47 apply to Vehicle Code section 10851 convictions based on takings without intent to permanently deprive. (People v. Bullard, supra, 9 Cal.5th at p. 102.) Our Supreme Court referred to the difference between vehicle theft (which, after Page, was to be considered a misdemeanor if the value of the vehicle did not exceed $950) and takings without intent to permanently deprive (which, prior to Bullard, was still interpreted as a felony regardless of the value of the vehicle) as a "senseless distinction." (Bullard, at p. 105.) It noted this distinction would result in a defendant possessing a less culpable intent receiving harsher punishment than defendants who had actual intent to steal. (Ibid.) As such, our Supreme Court concluded "Proposition 47's substantive effect on [Vehicle Code] section 10851 can be summarized as follows: Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle's taking by a substantial break), a violation of [Vehicle Code] section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less." (Bullard, at p. 110.)
Here, like Page, defendant's petition contained no allegations, testimony, or record references showing: (1) his Vehicle Code section 10851 conviction was based on the theft of the 1992 Honda Civic as opposed to the driving of it, and (2) the 1992 Honda Civic's value was $950 or less. Instead, the prosecution construed defendant's petitions as requesting reduction of his felony convictions in all his outstanding cases and opposed the reduction of defendant's Vehicle Code section 10851 conviction as ineligible. Therefore, the court properly denied defendant's petition. (See People v. Page, supra, 3 Cal.5th at p. 1189.) But because defendant's petition was filed before "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction" were clearly established, defendant is "entitled to an opportunity to file a new petition" to "allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18." (Page, at p. 1189.) However, pursuant to Bullard, we now conclude defendant is not obligated to show his conviction was based on theft of the 1992 Honda Civic. He is obligated to show only that his conviction was not based on posttheft driving separated by a substantial break from the taking of the vehicle. (See People v. Bullard, supra, 9 Cal.5th at p. 110.) Defendant retains his burden of showing facts to prove the 1992 Honda Civic was worth less than $950. (See ibid.)
Defendant contends he is entitled to vacatur of the on-bail enhancement (§ 12022.1) attached to this conviction once it has been reduced to a misdemeanor. While that may be the case (see § 1170.18, subd. (k)), defendant must first have his felony reduced. We leave that determination and the resulting effect on the on-bail enhancement to the trial court.
Defendant's conviction for receiving a stolen vehicle, however, is ineligible for reduction. Section 496d is not among the statutes listed in section 1170.18 and there is "no indication that the drafters of Proposition 47 intended to include section 496d." (People v. Varner (2016) 3 Cal.App.5th 360, 366.) In Orozco, our Supreme Court concluded Proposition 47 could not be interpreted to include section 496d, as section 496d offenses are not thefts: "we have defined theft as a 'taking with intent to steal the property -- that is, the intent to permanently deprive the owner of its possession.' [Citation.] The elements of receipt of stolen property, in contrast, do not require the defendant to have engaged in any such taking." (People v. Orozco, supra, 9 Cal.5th at pp. 121-122, quoting People v. Page, supra, 3 Cal.5th at p. 1182.) Further, the court reasoned "[b]ecause a 'theft conviction operates as a bar to a receiving conviction' [citation], it is difficult to understand how receiving stolen property could amount to theft. (Orozco, at p. 122, quoting People v. Cela (2010) 49 Cal.4th 1, 3.) Pursuant to Orozco, defendant's section 496d felony conviction is not eligible for sentence reduction under Proposition 47. (See Orozco, at p. 119.)
II
Drug Offenses
Defendant contends his convictions for transportation of methamphetamine are eligible for Proposition 47 reduction. We disagree.
In 2012, when defendant was convicted of transportation of methamphetamine, Health and Safety Code section 11379, subdivision (a) provided that any person who "transports" specified controlled substances including methamphetamine shall be punished by imprisonment. (Health & Saf., § 11379; Stats. 2011, ch. 15, § 174.) "The courts had interpreted the word 'transports' to include transporting controlled substances for personal use. [Citations.] Effective January 1, 2014, . . . the Legislature amended [Health and Safety Code] section 11379 to define 'transports' as meaning to transport for sale." (People v. Eagle, supra, 246 Cal.App.4th at p. 278.) "In light of this amendment to [Health and Safety Code] section 11379, the possession and movement of methamphetamine for personal use, without intent to sell, can be charged only as a possession offense under [Health and Safety Code] section 11377." (People v. Martinez, supra, 4 Cal.5th at p. 651.)
Defendant contends, under the amendment to Health and Safety Code section 11379 that defines transport as meaning transport for sale, his transportation convictions would have been punishable only as misdemeanors under Health and Safety Code section 11377 because they did not involve the intent to sell. Therefore, since his possessions of methamphetamine would have been misdemeanors if Proposition 47 had been in effect when he committed these offenses, the court erred when it found the convictions ineligible for reduction to misdemeanor violations of Health and Safety Code section 11377, subdivision (a).
Martinez disposes of defendant's contention. In Martinez, pursuant to section 1170.18, subdivision (a), the defendant filed a petition for resentencing on two 2007 felony convictions, including one for transportation of methamphetamine. The trial court, however, denied the petition as to the transportation conviction, "observing that Proposition 47 did not expressly reduce the transportation offense to a misdemeanor." (People v. Martinez, supra, 4 Cal.5th at p. 649.)
On appeal, the defendant argued, based on the 2013 amendment to Health and Safety Code section 11379, that "the evidence that he possessed and transported methamphetamine, without proof that he transported it for sale, meant that he 'would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense . . . .' " (People v. Martinez, supra, 4 Cal.5th at p. 653.) In rejecting this argument, our Supreme Court held, "Because Proposition 47 did not reduce the transportation of a controlled substance from a felony to a misdemeanor, Martinez is ineligible for resentencing on that offense." (Martinez, at p. 653.)
The defendant in Martinez also argued that the 2013 amendment to Health and Safety Code section 11379 "implicitly broadened the scope of [Health and Safety Code] section 11377 and that his transportation conviction, obtained without proof of intent to sell, should now be construed as falling under [Health and Safety Code] section 11377 and thus reducible to a misdemeanor." (People v. Martinez, supra, 4 Cal.5th at p. 655.) In rejecting this argument, however, the court held the amendment to Health and Safety Code section 11379 was not retroactive to cases that were final. (Martinez, at p. 655.)
Defendant's convictions also became final before the amendment to Health and Safety Code section 11379 took effect, meaning the amendment did not apply to him. Thus, based on our Supreme Court's decision in Martinez, we conclude defendant's felony convictions for transportation of methamphetamine are ineligible for reduction.
DISPOSITION
We affirm the court's order regarding defendant's felony conviction for unlawful taking or driving of a vehicle without prejudice to consideration of a petition providing evidence of defendant's eligibility for reduction of that conviction to a misdemeanor pursuant to section 1170.18. The court's orders in defendant's remaining cases are affirmed.
/s/_________
Robie, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.