Opinion
E064842
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DIAZ RAMOS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Samantha L. Begovich, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FBA008871) OPINION APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Affirmed. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Samantha L. Begovich, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
In 2006, defendant and appellant Robert Diaz Ramos pled guilty to the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1) and evading an officer (Veh. Code, § 2800.2, subd. (a), count 2). Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.)
In a previous nonpublished opinion, we affirmed the trial court's denial of defendant's petition for resentencing pursuant to Proposition 47. (People v. Ramos (Sept. 29, 2016, E064842 [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Cal.5th 1175 (Page). For the reasons stated below, we affirm the trial court's order denying defendant's petition without prejudice to consideration of a subsequent petition providing evidence of his eligibility.
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
On January 17, 2006, defendant pled guilty to a felony violation of unlawfully driving or taking a 1988 Nissan Sentra (Veh. Code, § 10851, subd. (a)) and evading an officer while operating a motor vehicle (Veh. Code, § 2800.2, subd. (a)). As a term of the plea, defendant's prison prior allegation was dismissed. The trial court sentenced defendant to state prison for a total term of 16 months.
On October 14, 2015, defendant filed a petition for resentencing pursuant to Penal Code section 1170.18. The petition was unsupported by any evidence, including any information regarding the value of the stolen vehicle or the circumstances of the offense. On November 2, 2015, the trial court denied the petition, stating that Vehicle Code section 10851, subdivision (a), is "[n]ot a qualifying crime." The minute order states that defendant "does not satisfy the criteria in Penal Code [section] 1170.18 and is not eligible for resentencing."
In our previous opinion in this matter, we affirmed the trial court's ruling, finding that the court correctly determined defendant to be ineligible for recall of sentence and resentencing pursuant to Penal Code section 1170.18. (People v. Ramos, supra, E064119, pp. 5-8.) Defendant sought review in the California Supreme Court. In an order filed March 21, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page, supra, 3 Cal.5th 1175. On March 22, 2018, we issued an order vacating our previous opinion and inviting the parties to submit supplemental briefing. Both the People and defendant did so.
II. DISCUSSION
In Page, the Supreme Court held that Vehicle Code section 10851 convictions "are not categorically ineligible for resentencing" under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) The defendant seeking resentencing bears the burden of establishing his or her eligibility by showing that the vehicle was worth $950 or less and the 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]." (Id. at p. 1188.) The petition at issue in Page "included 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 p. 1189.) In the present case, defendant's petition also fails to include any "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." (Ibid.) Under these circumstances, the California Supreme Court has concluded that defendant's petition was properly denied. (Ibid.) However, the Supreme Court has declared that defendant 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 [Penal Code] section 1170.18. [Citations.]" (Ibid., italics added.)
In his supplemental briefing, defendant asks this court to find that, as a matter of law, his conviction was for a theft offense. We decline to do so. Because defendant was also convicted of evading an officer, it could be argued that his Vehicle Code section 10851, subdivision (a), conviction was for unlawfully driving the vehicle rather than theft alone. --------
In People v. Sweeney (2016) 4 Cal.App.5th 295, 303, we noted our concern that insisting defendant file a new petition may have unanticipated negative consequences related to res judicata, the finality of judgments, and limitations on the timing of petitions. However, given the Supreme Court's directive in Page, this concern is no longer warranted in Proposition 47 cases. Moreover, the Supreme Court recognized that "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 for recall . . . ." (Page, supra, 3 Cal.5th at p. 1189.) This also is no longer the case. "The ultimate burden of proving [Penal Code] section 1170.18 eligibility lies with the petitioner." (People v. Romanowski (2017) 2 Cal.5th 903, 916 ["In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility . . . . But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction," necessitating the resolution of an issue of fact]; People v. Perkins (2016) 244 Cal.App.4th 129, 140 [in a petition, "defendant should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief."]; People v. Sherow (2015) 239 Cal.App.4th 875, 880 ["A proper petition could certainly contain at least [defendant's] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination."].) We therefore follow the Supreme Court's approach in Page and affirm the superior court's order denying defendant's petition without prejudice to consideration of another petition (either new or amended) providing evidence of his eligibility.
III. DISPOSITION
The trial court's order denying defendant's petition is affirmed without prejudice to consideration of a petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
RAMIREZ
P. J. I concur: FIELDS
J.
Slough, J., Dissenting.
I respectfully disagree with the majority's disposition of this case. Since our original opinion affirming the trial court, the Supreme Court has held a defendant convicted of violating Vehicle Code section 10851, subdivision (a) (Section 10851) who establishes he was convicted of taking a vehicle valued at $950 or less is eligible for resentencing under Penal Code section 490.2, subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1189 (Page).) The majority's new opinion conforms to that holding, but nevertheless affirms the trial court order denying the petition because Ramos did not attach evidence to his petition to establish he took the vehicle (as opposed to merely driving it) and that it was valued at less than $950. Given the record we have on appeal, I do not believe that is an appropriate way to resolve this case. I will explain.
As I pointed out in my dissent to the original opinion in this case, the record on appeal shows there is a good chance Ramos can show he was convicted of taking a vehicle worth $950 or less. The clerk's transcript contains a California Highway Patrol investigation report about Ramos's arrest. It shows on October 29, 2005, Ramos took a 1988 Nissan Sentra belonging to Loretta Cummins from the parking lot at the Ontario Mills mall. The car had no radio or tape deck and its odometer showed it had been driven over 156,000 miles. Thus, it is clearly possible Ramos would have been able to establish the vehicle was worth less than $950 had the trial court not truncated its inquiry based on a mistaken legal ruling.
As for whether Ramos's was a theft offense, as opposed to joyriding, he admitted to police that he stole the vehicle and intended to drive to his wife's house. Ramos found the car in a parking lot, unlocked and with its key inside. When the owner of the vehicle learned it was stolen, she told law enforcement she had not given Ramos permission to take the vehicle and filed a stolen vehicle report with the Ontario Police Department. The report also says law enforcement stopped Ramos while he was driving the vehicle after taking it from the parking lot, which strongly suggests there was no substantial break between the taking and his arrest. That indicates Ramos was convicted of a Section 10851 theft offense, not a driving offense. (Page, supra, 3 Cal.5th at p. 1188; People v. Van Orden (2017) 9 Cal.App.5th 1277, 1287 ["The 'substantial break' test allows a court to determine whether a section 10851 conviction is for pure theft or posttheft driving. We therefore conclude the test applies to determining whether a section 10851 conviction qualifies for relief under section 1170.18"].) Thus, again, the record on appeal makes it appear likely Ramos can establish he is entitled to relief under Proposition 47.
In the face of such a record, it is not appropriate to affirm the trial court's denial of the petition on the alternative basis that Ramos's petition is unsupported. This is not a case, like Page, where there is no information concerning the basis for the Section 10851 conviction. (Page, supra, 3 Cal.5th at p. 1180.) Here, the appellate record establishes Ramos stands a very good chance of establishing he is entitled to relief. Had the trial court not erroneously ruled he was ineligible as a matter of law, faced with the facts in this record, the court should have resolved the factual question based on the record of conviction, allowed Ramos the opportunity to cure any deficiency by amending his petition and attaching evidence, or skipped that formality and set a hearing if the court believed additional evidence was needed. (People v. Abarca (2016) 2 Cal.App.5th 475, 480 [holding the trial courts have discretion to grant or deny a Proposition 47 petition based on a review of the evidence in its file]; People v. Huerta (2016) 3 Cal.App.5th 539, 543-544 [holding it would be an abuse of discretion to deny the opportunity to amend petition where record showed failure to establish value could be cured by amendment].)
Though the majority allows Ramos to file a new petition, I do not view this as an equivalent remedy. After Page, it is clear Section 10851 cases may fall under Proposition 47. There is sufficient information in the record before us to establish Ramos may be such a case. Since the trial court erred in its summary denial, I believe we should require the trial court to pick up where it left off, not require Ramos to start the process anew. In addition, as this Court has noted elsewhere, there is reason for concern that insisting Ramos file a new petition may have unanticipated negative consequences related to res judicata, the finality of judgments, and limitations on the timing of petitions. (People v. Sweeney (2016) 4 Cal.App.5th 295, 303.) Page may resolve the concerns about res judicata, but it does not cure potential timing problems. I believe it is both more fair and more efficient to reverse the trial court and remand for further proceedings.
Because the record we have contains hearsay statements, does not give the exact value of the car, and does not definitively resolve whether the conviction was for taking or driving the vehicle, Ramos may need to supplement the highway patrol report with additional evidence. Those are factual and evidentiary matters best left to the trial court in the first instance. (See People v. Contreras (2015) 237 Cal.App.4th 868, 892; People v. Fedalizo (2016) 246 Cal.App.4th 98, 108.)
Accordingly, I would reverse the trial court's order denying Ramos's petition and remand for further proceedings. On remand, I would allow the trial court to exercise its discretion whether to require amendment of the petition, resolve the factual question on the existing record, or allow the parties to supplement the evidentiary record at a hearing to assist the court in making the factual findings necessary to determine whether petitioner is eligible for resentencing under Page. (People v. Abarca, supra, 2 Cal.App.5th at p. 480; People v. Huerta, supra, 3 Cal.App.5th at pp. 543-544; People v. Fedalizo, supra, 246 Cal.App.4th at p. 108 ["[T]rial courts have substantial flexibility to devise practical procedures to implement Proposition 47, so long as those procedures are consistent with the proposition and any applicable statutory or constitutional requirements"].)
SLOUGH
J.