Opinion
H043965
05-08-2018
THE PEOPLE, Plaintiff and Respondent, v. LAUREN PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160692A)
I. INTRODUCTION
This case is before us for a second time, after the California Supreme Court transferred it back to this court with directions to reconsider in light of the recent opinion in People v. Page (2017) 3 Cal.5th 1175 (Page).
In December 2014, defendant Lauren Perez pleaded guilty to two felony offenses: unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1) and buying or receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a); count 2). Defendant admitted she had a prior conviction that qualified as a "strike" (§§ 667, subds. (b)-(i), 1170.12) and admitted that she had served a prior prison term (§ 667.5, subd. (b)). The trial court subsequently dismissed the strike allegation, struck the prior prison term allegation, suspended imposition of sentence, and placed defendant on probation for three years.
All further statutory references are to the Penal Code unless otherwise indicated.
In August 2016, defendant filed a petition to redesignate both of her felony convictions as misdemeanors pursuant to section 1170.18, subdivision (f), which was enacted by Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) The trial court denied the petition on the ground that neither conviction was eligible for redesignation as a misdemeanor under section 1170.18.
On appeal, defendant contends that the trial court erred in denying her petition as to both counts. She argues that although neither Vehicle Code section 10851 nor section 496d were offenses explicitly affected by Proposition 47, her convictions qualify for redesignation under various principles of statutory construction and equal protection. Acknowledging that she did not present evidence of the vehicle's value, defendant argues that the proper remedy is to either remand the matter for an evidentiary hearing or affirm the trial court's order without prejudice to the filing of a new petition.
In Page, the California Supreme Court determined that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor if (1) the conviction was based on the theft of a vehicle and (2) the vehicle was worth $950 or less. (Page, supra, 3 Cal.5th at p. 1180.) Because defendant's petition failed to establish either ground, we will affirm the court's order without prejudice to consideration of a new petition providing evidence of defendant's eligibility for redesignation as to count 1. But because the rationale of Page does not extend to convictions under section 496d, we find that the trial court properly denied defendant's petition as to count 2.
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2014, the Orange County District Attorney's Office filed a felony complaint charging defendant with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1) and buying or receiving a stolen motor vehicle (§ 496d, subd. (a); count 2). In both counts, the complaint specified that the vehicle was a 1995 Honda Accord. The complaint alleged that defendant had a prior burglary conviction that qualified as a "strike" (§§ 667, subds. (b)-(i), 1170.12) and that defendant had served a prior prison term (§ 667.5, subd. (b)).
On November 4, 2014, voters enacted Proposition 47, which reclassified certain drug- and theft-related offenses as misdemeanors instead of felonies or alternative felony misdemeanors. (See Page, supra, 3 Cal.5th at pp. 1179, 1181.) One statute amended by Proposition 47 was section 496, subdivision (a), which defines receiving stolen property and now specifies that "if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year." (See People v. Johnson (2016) 1 Cal.App.5th 953, 959 (Johnson).) Proposition 47 also added a new statute, section 490.2, which generally defines petty theft as the theft of property valued at $950 or less. (§ 490.2, subd. (a); Shabazz, supra, at p. 308.) Proposition 47 did not amend Vehicle Code section 10851 or section 496d (the two offenses charged in defendant's case).
Proposition 47 also added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g).) A defendant is not eligible for resentencing or redesignation if he or she has suffered a specified prior conviction. (Id., subd. (i).)
On December 8, 2014, defendant pleaded guilty to both substantive offenses—as felonies—and admitted the prior conviction and prior prison term allegation. As a factual basis for her plea, defendant wrote: "I willfully and unlawfully drove a 1995 Honda Accord without the owner's permission, knowing it was stolen, and with the intent to deprive the owner of the vehicle." On the same date, the trial court dismissed the strike allegation, struck the prior prison term allegation, suspended imposition of sentence, and placed defendant on probation.
In February 2016, the Orange County Probation Department filed a motion to transfer defendant's probation to Monterey County, pursuant to section 1203.9, subdivision (a), because defendant's permanent residence was in Monterey County. The Orange County Superior Court granted the motion and ordered the transfer in April 2016. The Monterey County Superior Court accepted the transfer in May 2016.
On August 8, 2016, defendant filed (in Monterey County Superior Court) a petition to redesignate both of her felony convictions as misdemeanors pursuant to section 1170.18, subdivision (f). The Monterey County District Attorney filed opposition to the petition, stating three grounds: (1) the offenses were not eligible for redesignation; (2) the value of the property exceeded $950; and (3) the petition was filed in the "wrong court"—i.e., it should have been filed in the Orange County Superior Court instead of the Monterey County Superior Court.
Defendant indicated she was filing a petition for redesignation of her conviction pursuant to section 1170.18, subdivision (f) because she had completed her sentence. Nothing in the record indicates that defendant had completed her probation, however, and thus it appears she should have filed a petition for resentencing pursuant to section 1170.18, subdivision (a). (See People v. Tidwell (2016) 246 Cal.App.4th 212, 218-219.) This procedural distinction does not affect our analysis of the issues on appeal.
In support of his "wrong court" contention, the District Attorney cited People v. Curry (2016) 1 Cal.App.5th 1073, review granted Nov. 9, 2016, S237037. The Supreme Court subsequently granted review of that case and ordered briefing deferred pending its decision in People v. Adelmann (2016) 2 Cal.App.5th 1188, review granted Nov. 9, 2016, S237602, which presents the following issue: "If a case is transferred from one county to another for purposes of probation (Pen. Code, § 1203.9), must a Proposition 47 petition to recall sentence be filed in the court that entered the judgment of conviction or in the superior court of the receiving county?" (http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2153962&doc_no=S237037&request_token=NiIwLSIkXkw6WzBRSCJdXE9IQFg0UDxTICMuRzlSQCAgCg%3D%3D.)
At a hearing held on September 8, 2016, the trial court denied defendant's petition. At the hearing, the District Attorney conceded that defendant's petition was properly filed in Monterey County. However, the District Attorney asserted that the petition should be denied because "neither charge . . . is available for the relief." The trial court agreed that both of defendant's convictions involved charges that were "not available for redesignation pursuant to [section] 1170.18."
Neither party raises this issue on appeal, and we therefore express no view on whether the petition was properly filed in Monterey County.
III. DISCUSSION
A. Vehicle Code Section 10851(a)
Defendant contends that a conviction for violating Vehicle Code section 10851, subdivision (a) (hereafter, Vehicle Code section 10851(a)) may be resentenced or redesignated as misdemeanor petty theft pursuant to section 1170.18 under principles of statutory construction and equal protection.
1. A Vehicle Code Section 10851 Conviction May Be Eligible for Resentencing or Redesignation as a Misdemeanor
While this appeal was pending, the California Supreme Court in Page determined that "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing." (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, supra, at p. 1187, italics added; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for redesignation after the sentence has been completed].)
The California Supreme Court explained that a person who has been convicted of grand theft is "clearly eligible" for resentencing under section 1170.18 if the value of the property taken was $950 or less. (Page, supra, 3 Cal.5th at p. 1182; see § 490.2, subd. (a).) 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 section 10851, it is, in effect, a form of grand, rather than petty, theft. [Citations.]" (Page, supra, at pp. 1186-1187, italics added.)
The California Supreme Court further explained: "Theft . . . requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession." (Page, supra, 3 Cal.5th at p. 1182.) " 'Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .' [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, 'suffered a theft conviction.' [Citation.]" (Id. at p. 1183.) Consequently, "[a] person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851 may . . . be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less." (Id. at p. 1180, italics added.)
2. Defendant's Failure to Establish Her Eligibility for Relief Warranted the Denial of Her Petition
"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. [Citations.]" (Page, supra, 3 Cal.5th at p. 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. [Citation.]" [Citation.]' [Citation.]" (Ibid.)
To establish eligibility for resentencing or redesignation for a Vehicle Code section 10851 conviction, the defendant must show that (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. (Page, supra, 3 Cal.5th at p. 1188.) In Page, the California Supreme Court found that the defendant's "uncounseled 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." (Id. at pp. 1180, 1189.) The California Supreme Court determined, however, that 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." (Id. at p. 1189.) The California Supreme 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.)
In this case, similar to Page, defendant's petition contained no allegations, testimony, or record references showing that (1) her Vehicle Code section 10851 conviction was based on the theft of the vehicle, and (2) the vehicle's value was $950 or less. Defendant's petition was therefore properly denied. (Page, supra, 3 Cal.5th at p. 1189.) However, because her 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, she 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." (Ibid.)
B. Receiving a Stolen Vehicle
Defendant contends that the trial court erred in failing to grant her petition for redesignation of count 2 under Proposition 47 because section 1170.18 should be construed to apply to a felony conviction for violating section 496d where the value of the stolen motor vehicle was $950 or less.
1. Statutory Interpretation
Defendant acknowledges that Proposition 47 did not amend section 496d to provide that the offense of buying or receiving a stolen motor vehicle with a value of $950 or less is a misdemeanor. Despite this omission, defendant maintains that the voters intended that all theft related offenses be treated as misdemeanors where the value of the property is less than $950. Defendant points out that the "broader" misdemeanor offense of receiving stolen property with a value of $950 or less (§ 496, subd. (a)) was expressly reclassified as a misdemeanor by Proposition 47. Defendant also asserts that construing section 1170.18 to apply to the offense of buying or receiving a stolen motor vehicle with a value of $950 or less would serve "the voters' stated money saving goals" in enacting Proposition 47.
Similar arguments were rejected in People v. Varner (2016) 3 Cal.App.5th 360 (Varner). The Varner court found "no indication that the drafters of Proposition 47 intended to include section 496d." (Id. at p. 366.) The court distinguished "the changes made by Proposition 47 to the crimes of grand theft and petty theft," which were accomplished in part by the addition of section 490.2, which defines petty theft and references " 'any other provision of law defining grand theft.' " (Varner, supra, at p. 367.) The court noted that no such broad language had been included in the changes made to section 496, subdivision (a), and that section 496, subdivision (a) "contains no reference to section 496d." (Varner, supra, at p. 367.) This indicated that "the drafters [of Proposition 47] intended section 496d to remain intact and intended for the prosecution to retain its discretion to charge section 496d offenses as felonies." (Ibid.) The Varner court also rejected the notion that section 490.2 applied to receiving stolen property offenses, finding that if so, there would have been be "no need to amend section 496." (Varner, supra, at p. 367.)
On November 22, 2016, the California Supreme Court granted review of Varner (No. S237679) and ordered further action deferred pending its decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). On August 9, 2017, after the Romanowski opinion was filed, the California Supreme Court dismissed review in Varner, leaving the case published. (See Cal. Rules of Court, rule 8.1115(e).) --------
We agree with the Varner court's analysis and adopt it here. We note that nothing in Page alters that analysis. Page interpreted section 490.2, subdivision (a), which as noted above specifically defines theft crimes, and there is no equivalent language in the receiving statutes. Page held that Proposition 47 applies to certain violations of Vehicle Code section 10851 because of the broad, preemptive language of section 490.2. But again, Proposition 47 did not enact similar language in the context of receiving stolen property. Thus, Page does not provide support for defendant's claim.
2. Equal Protection
Defendant also contends that failing to grant a petition for redesignation of a section 496d conviction of buying or receiving a stolen motor vehicle with a value of $950 or less violates the constitutional right to equal protection. According to defendant, a person who is guilty of the offense of receiving a stolen vehicle (§ 496d) with a value of $950 or less is similarly situated to a person who is guilty of the offenses of theft of a vehicle with a value of $950 or less (§ 490.2) or receiving other property with a value of $950 or less (§ 496), which are eligible for resentencing or redesignation under section 1170.18.
" '[T]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] 'In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications.' " (People v. Wilkinson (2004) 33 Cal.4th 821, 836 (Wilkinson).) "A defendant . . . 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' [Citations.]" (Id. at p. 838.) Therefore, the rational basis test is applicable to an equal protection challenge involving an alleged sentencing disparity. (Ibid.)
Defendant has not shown that she falls within either of the two groups she claims are similarly situated, for several reasons. First, as she concedes, she failed to establish that the value of the vehicle at issue was $950 or less. Second, those who steal a vehicle are not similarly situated to those who buy or receive a stolen vehicle, for purposes of equal protection. Theft and the crime of receiving or buying stolen property are entirely different crimes, even if the stolen property may be of the same nature. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 404 ["persons convicted of different crimes are not similarly situated for equal protection purposes"].)
Even assuming defendant falls within one of the two groups she identifies and even assuming those two groups are similarly situated, her equal protection claim fails. Because "[a] defendant . . . 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives,' " the rational basis test is applicable to an equal protection challenge involving " 'an alleged sentencing disparity.' " (Wilkinson, supra, 33 Cal.4th at p. 838.) In applying the rational basis test, " 'a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation].' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.) "To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' [Citations.]" (Ibid.)
We find that there are several plausible reasons for the alleged disparity in excluding a conviction under section 496d from resentencing or redesignation under section 1170.18 where the value of the stolen motor vehicle was $950 or less. One reason is that the offense of buying or receiving a stolen motor vehicle may have greater consequences for the victims than other theft related offenses. The owners of motor vehicles are often dependent on their vehicles for transportation to work and school, and for obtaining the necessities of life, more so than other forms of stolen property.
Another reason is that stolen vehicles may be sold for parts in "chop shops," which may increase their worth. Targeting that type of criminal enterprise was in part the Legislature's intent in enacting section 496d, as indicated in the legislative history. The bill's author proposed that section 496d be added " 'to the Penal Code to encompass only motor vehicles related to the receiving of stolen property.' " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.) Section 496d was described as " 'provid[ing] additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences.' " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.)
A third plausible reason for the alleged disparity in excluding a conviction under section 496d from section 1170.18 concerns prosecutorial discretion in charging the offense of receiving a low value stolen motor vehicle as a felony under section 496d, rather than as a misdemeanor under section 496. Our Supreme Court has ruled that "numerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, ' "one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests[,]" ' the defendant cannot make out an equal protection violation. [Citation.]" (Wilkinson, supra, 33 Cal.4th at pp. 838-839.)
Accordingly, we determine that the rational basis test is satisfied because there is a plausible basis for the alleged disparity between a conviction under section 496d for buying or receiving a motor vehicle with a value of $950 or less, which is not eligible for redesignation under section 1170.18, and the eligible theft related convictions where the property had a value of $950 or less. We therefore find no merit in defendant's equal protection claim.
In sum, we determine that defendant's felony conviction for violating section 496d, subdivision (a) is not eligible for resentencing or redesignation as a misdemeanor under Proposition 47.
IV. DISPOSITION
The September 8, 2016 order is affirmed without prejudice to consideration of a new petition providing evidence of defendant's eligibility for resentencing for her conviction of violating Vehicle Code section 10851.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.