Opinion
E063905
11-22-2017
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO NAVA MORA, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1100811) OPINION APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge. Reversed and remanded with directions. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant Eduardo Mora appeals from the superior court's ruling denying his petition to reduce his 2011 grand theft auto (Pen. Code, § 487, subd. (d)(1)) conviction to a misdemeanor under Proposition 47. We reverse, with directions to the trial court to ascertain whether the value of the stolen car was less than $950 and whether defendant's release would pose an unreasonable risk of danger to the public.
All section references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURE
On April 6, 2011, defendant stole a 1999 Nissan Altima.
On April 29, 2011, the People filed a complaint charging defendant with grand theft auto (Pen. Code, § 487, subd. (d)(1)), unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)).
On May 10, 2011, defendant pled guilty to grand theft auto, the other counts were dismissed, and defendant was placed on probation.
On February 8, 2012, defendant admitted to violating his probation and the trial court imposed a 16-month prison term.
On November 4, 2014, voters enacted Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "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. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." (Id. at p. 1092; see § 1170.18, subd. (a).)
On February 25, 2015, defendant petitioned for resentencing under Proposition 47, contending the value of the 1999 Nissan Altima did not exceed $950. The People filed a response arguing grand theft auto is "[n]ot a qualifying felony." On May 8, 2015, the superior court denied the petition on the ground that section "487[, subdivision] (d)(1) is not a qualifying felony."
This appeal followed. Counsel for defendant filed a brief in accordance with the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.
On March 10, 2016, this court filed its opinion in this case affirming the order without prejudice to consideration of a subsequent petition supplying evidence of defendant's eligibility for resentencing.
On April 12, 2016, defendant, acting in propria persona, filed a petition for review in the Supreme Court of California.
On August 16, 2017, the Supreme Court transferred the matter to this court for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). On August 17, 2017, this court vacated its opinion.
DISCUSSION
On March 27, 2017, our Supreme Court issued its opinion in Romanowski. The court determined that the theft of access card information is one of the crimes eligible for reduction to a misdemeanor when California voters approved Proposition 47. The court examined section 490.2, in reasoning which applies equally to vehicle theft under section 487: Section 490.2, subdivision (a), provides in relevant part: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value . . . does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor. . . ." The court concluded, "What section 490.2 indicates is that after the passage of Proposition 47, 'obtaining any property by theft' constitutes petty theft if the stolen property is worth less than $950." (Romanowski, supra, 2 Cal.5th at p. 908.)
The Romanowski court went on to discuss the theft of access card information under the category of "any other provision of law defining grand theft" in section 490.2, while by the same reasoning accepting that any theft under section 487 is also subject to the $950 threshold. "Access card theft was not the only offense that was punished without regard to the value of the stolen property until Proposition 47 went into effect. Section 487 . . . made it 'grand theft' to steal automobiles, as well to steal 'from the person of another.' [Citation.] These forms of theft previously required no evidence of the value of the stolen property. Now they do." (Romanowski, supra, 2 Cal.5th at p. 911.) Further, the court stated, "[T]he Legislature made the punishment scheme for theft of access card information identical to the schemes for crimes like automobile theft. Then, two decades later, the voters reduced the punishment for those crimes when the value of the stolen property is below $950." (Id. at p. 913.) Given this express direction from the California Supreme Court, we can only conclude that defendant is entitled to a hearing at which he is to be given the opportunity to establish that the vehicle he was convicted of stealing was valued at less than $950.
Section 487, subdivision (c), provides that grand theft is committed: "When the property taken is any of the following: [¶] (1) An automobile; [¶] (2) A firearm." --------
Under Romanowski, supra, 2 Cal.5th at page 916, a defendant seeking resentencing under section 1170.18 still bears the burden of demonstrating that his underlying offense fell within that statutory scheme. (See People v. Sherow (2015) 239 Cal.App.4th 875, 879.)
DISPOSITION
We reverse, with directions to the trial court to ascertain under section 1170.18 whether the value of the stolen car was less than $950 and whether defendant's release would pose an unreasonable risk of danger to the public.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.