Opinion
F071149
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND MORENO, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kathleen A. McKenna, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF298279)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Ellison, J.
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Appellant Raymond Moreno appeals from the denial of his petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on his prior conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851). Appellant's initial briefing argued the denial of his request violates principles of equal protection. In supplemental briefing, appellant additionally argues recent California Supreme Court precedent provides a new opportunity for him to demonstrate eligibility under Proposition 47. For the reasons set forth below, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2014, appellant pled no contest to one count of unlawfully driving or taking a vehicle under Vehicle Code section 10851 and admitted to several prior theft convictions and prison term enhancements. Relevant to his plea, appellant was apprehended in the driver's seat of a 1994 Honda Accord that had previously been reported stolen. In exchange for the plea, appellant was offered and received a five-year sentence, with three years of that term suspended.
Appellant later petitioned for resentencing pursuant to Proposition 47. The petition was denied because the trial court concluded that a conviction under Vehicle Code section 10851 was not eligible for resentencing. This timely appeal followed.
In our initial opinion, we affirmed appellant's conviction. However, following an appeal to our Supreme Court, the case was remanded with instructions to reconsider our opinion in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
DISCUSSION
Appellant contends the trial court wrongly denied his petition for resentencing. He claims his sentence violates equal protection principles and must be reduced to a misdemeanor if the vehicle involved was worth less than $950 because there is no rational basis why his conviction under Vehicle Code section 10851 should be punished more harshly than a conviction for theft of an automobile under Penal Code section 487. In supplemental briefing following remand, appellant concedes the Supreme Court's opinion in Page does not directly affect our prior determination regarding the alleged equal protection violation. But appellant argues we should reconsider that position regardless. Appellant then argues that Page's recent explanation of eligibility for resentencing under Proposition 47 creates a newly defined opportunity for appellant to demonstrate eligibility. The People respond by requesting we remand the matter to provide appellant an opportunity to demonstrate eligibility for resentencing under Proposition 47.
We accept the People's request to remand this matter for further proceedings. In Page, our Supreme Court explained that "Proposition 47 makes some, though not all, section 10851 defendants eligible for resentencing: A defendant 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 [Penal Code] section 490.2 and is thus eligible for resentencing under [Penal Code] section 1170.18." (Page, supra, 3 Cal.5th at p. 1184.) Under the Supreme Court's analysis, if a defendant can demonstrate conviction under the theft portion of Vehicle Code section 10851 relating to a vehicle worth less than $950, they are eligible for resentencing under Proposition 47. Here, appellant was not provided an opportunity to demonstrate eligibility for resentencing because his offense was deemed categorically ineligible. As our Supreme Court has explained that certain individuals convicted under Vehicle Code section 10851 are eligible for resentencing under Proposition 47, appellant should be provided an opportunity to demonstrate eligibility under that legal framework. Because we agree to remand this matter, we do not need to review our prior conclusion that appellant cannot demonstrate an equal protection violation. The Abstract of Judgment Must Be Corrected
In its initial responsive brief, the People note the abstract of judgment does not properly reflect the basis for appellant's convictions and resulting sentence. While appellant's sentence shows three enhancements under Penal Code section 667.5 were stayed, the People note that such enhancements cannot be stayed and must be struck. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of [Penal Code] section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken."].) In addition, the People contend appellant was sentenced to two one-year enhancements under Penal Code section 667.5, but that the abstract shows a single two-year enhancement imposed under Penal Code section 666.5. The People request the abstract be corrected to reflect the striking of the prior prison term enhancements that were not imposed and to note the presence of two one-year enhancements rather than a single two-year enhancement. (See People v. Garcia (2003) 107 Cal.App.4th 1159, 1165-1166 [noting prior conviction under Penal Code section 666.5 sets the base term, but same conviction can support enhancement under Penal Code section 667.5].) Appellant has not opposed the requested correction. Upon remand, if appellant is not resentencing, the clerk shall correct the abstract of judgment to reflect appellant's sentence as requested. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is reversed and the matter remanded to provide appellant an opportunity to demonstrate eligibility under Proposition 47. If appellant is not ultimately resentenced, the trial court is ordered to correct the abstract of judgment to properly identify the sentence imposed. The trial court is directed to prepare an amended abstract of judgment consistent with this order and forward a certified copy to California's Department of Corrections and Rehabilitation.
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† Judge of the Superior Court of Fresno County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.