Opinion
F076075
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. SERGIO MACIAS SANCHEZ, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12500112)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
Sergio Macias Sanchez (appellant) contends the trial court erred in denying his postjudgment application under Proposition 47 (Prop. 47) seeking to reduce his felony conviction to a misdemeanor for unlawful driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) Considering the Supreme Court's recent decision in People v. Page (2017) 3 Cal.5th 1175 (Page) and the Attorney General's concession, we will modify the denial to reflect that it was without prejudice to appellant filing a new application demonstrating eligibility.
Further references to section 10851 are to the Vehicle Code. All other statutory references are to the Penal Code.
BACKGROUND
Pursuant to a plea agreement, appellant pled no contest on February 9, 2012, to felony driving or taking a motor vehicle without the owner's consent under section 10851, subdivision (a). The plea agreement provided that appellant would not serve more than a two-year sentence and that additional allegations of receiving a stolen vehicle and a prison prior would be dismissed. (§§ 496d, subd. (a), 667.5, subd. (b).) The trial court accepted the parties' stipulation that the "police reports may be used as a factual basis for the plea," even though the reports were not admitted into the record. (People v. West (1970) 3 Cal.3d 595.) On August 15, 2012, the trial court sentenced appellant to a two-year prison term in accordance with the plea agreement.
On May 4, 2017, appellant filed an application under Prop. 47 to recall five felony convictions in five different cases, including this one, and to designate them as misdemeanors. (§ 1170.18, subd. (f).) On July 10, 2017, the trial court denied the application with respect to this case. The trial court accepted the parties' stipulation that the vehicle involved in the offense was valued at $400, but reasoned that convictions of unlawful driving or taking a vehicle under section 10851 "currently are not" eligible for resentencing under Prop. 47, referencing that the issue was then pending before the Supreme Court.
While section 1170.18, subdivision (a) permits a person "serving a sentence for a conviction" to file a "petition" to recall the sentence and to request resentencing, subdivision (f) of that section authorizes a "person who has completed his or her sentence for a conviction," such as appellant here, to file an "application" designating a felony a misdemeanor.
DISCUSSION
Appellant contends the trial court erred in ruling that his 2012 conviction for unlawful driving or taking a motor vehicle under section 10851, subdivision (a), was ineligible for reduction to a misdemeanor under Prop. 47. Appellant relies on Page, supra, 3 Cal.5th at p. 1175—decided after the trial court's July 10, 2017, denial of his Prop. 47 application—which concluded a conviction under section 10851 may qualify for Prop. 47 treatment. The Supreme Court explained:
"By its terms, Proposition 47's new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who 'obtain[ed] any property by theft' where the property is worth no more than $950. An automobile is personal property. 'As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.' " (Page, supra, 3 Cal.5th at p. 1183.)
While section 10851 applies broadly to "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle ...," the Supreme Court emphasized that Prop. 47 misdemeanor reclassification only applies to violations where the facts fall within the definition of a theft under section 490.2. To establish Prop. 47 misdemeanor eligibility on a section 10851 conviction, the defendant therefore must show: (1) the vehicle involved was worth $950 or less, and (2) an intent to permanently deprive the owner of possession, and not a mere posttheft driving of the vehicle following a "substantial break" after it has already been stolen. (Page, supra, 3 Cal.5th at pp. 1188-1189.) If a substantial break in time exists, "the defendant cannot establish eligibility under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving ...." (Page, supra, at p. 1189.)
As added by Prop. 47, section 490.2, subdivision (a), now provides that, "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except" where the defendant has a prior disqualifying conviction. --------
The Attorney General concedes appellant is potentially eligible for misdemeanor treatment of his conviction under Page, but disputes he is entitled to reclassification as a matter of law. The parties agree that the trial court accepted their stipulation that the value of the vehicle involved in appellant's conviction was $400, thereby meeting the $950-or-less value element of a petty theft. But given the limited facts developed in the underlying case, this court is unable to discern whether appellant's conviction was based on a theft, rather than a posttheft driving, of the vehicle.
In summarizing police records, appellant's probation report indicates police observed him driving the vehicle at approximately 3:30 a.m., on January 30, 2012, but does not indicate when the vehicle was taken or reported stolen. It is thus unclear whether there was a significant break from the time the vehicle was initially taken and when appellant was caught driving it.
In Page, the defendant's Prop. 47 resentencing petition "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." (Page, supra, 3 Cal.5th at p. 1189.) The Supreme Court, therefore, concluded the trial court properly denied the petition, but explained that 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 as neither had yet been judicially articulated when defendant submitted his petition for recall, petitioner is entitled to an opportunity to file a new petition meeting the statutory requirements." (Page, supra, at p. 1189.)
Based on our independent review of appellant's resentencing application which simply lists appellant's case numbers, dates of sentencing, and sentencing terms, we conclude the application did not demonstrate eligibility under the standard articulated in Page. But because the Supreme Court had not yet articulated the relevant requirements, we will modify the denial order to indicate it is without prejudice to appellant filing a new application demonstrating eligibility. Any subsequent application "should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18." (Page, supra, 3 Cal.5th at p. 1189.)
DISPOSITION
The trial court's July 10, 2017, order denying appellant's application seeking to designate his felony conviction under Vehicle Code section 10851 a misdemeanor, pursuant to Proposition 47 (Pen. Code, § 1170.18, subd. (f)), is modified to reflect that the application is denied without prejudice to consideration of a new application providing evidence of eligibility under People v. Page (2017) 3 Cal.5th 1175.