Opinion
B280571
08-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY GEORGE SHARY, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Heather B. Arambarri, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA068221) APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
This matter is before us following the Supreme Court's transfer with directions to reconsider the case in light of People v. Page (2017) 3 Cal.5th 1175 (Page). In our earlier opinion, we affirmed the denial of Jeffrey George Shary's petition to recall his sentence under Proposition 47 (Pen. Code, § 1170.18), which reduced certain theft-related and drug-related felonies to misdemeanors. (People v. Shary (Sept. 12, 2017, No. B280571) 2017 Cal.App. Unpub. LEXIS 6211.) The trial court found that appellant's conviction under Vehicle Code section 10851, subdivision (a) was not eligible for reduction under Proposition 47. Having reconsidered the matter, we again affirm.
Unspecified statutory references are to the Penal Code.
"Section 1170.18 provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).)" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.)
FACTUAL AND PROCEDURAL BACKGROUND
Because appellant's conviction was obtained by a no contest plea, the facts are taken from the probation report.
Appellant agreed to purchase a vehicle from the victims. He used a false name and gave the victims counterfeit $100 bills for the purchase price. The victims filed a police report when they discovered the money was fraudulent. The police located appellant, arrested him, and returned the vehicle to the victims.
On March 16, 2016, a complaint was filed alleging that on or about February 19, 2016, appellant committed the crime of driving or taking a vehicle without consent, in violation of Vehicle Code section 10851, subdivision (a). The complaint further alleged that appellant had suffered two prior offenses that qualified as strikes and as serious felonies: a 1982 conviction for burglary (§ 459) and a 2009 conviction for a criminal threat (§ 422). (§§ 667, subds. (b)-(j), 1170.12, 1192.7.) It also was alleged that appellant had served 11 prior prison terms. (§ 667.5, subd. (b).)
On April 1, 2016, appellant entered into a plea agreement under which he agreed to plead no contest to the charge of violating Vehicle Code section 10851, subdivision (a), and admit one strike, in exchange for a sentence of 32 months in state prison. After affirming that he understood the rights he was waiving, appellant pled no contest. On April 26, 2016, appellant was sentenced to the agreed-upon term of 32 months. The People dismissed the remaining allegations.
Appellant appealed, asking this court to reduce his conviction to a misdemeanor under Proposition 47. We dismissed the appeal because there was no indication in the record that he had filed a Proposition 47 petition. (People v. Shary (May 10, 2017, No. B275959) 2017 Cal.App. Unpub. LEXIS 3188.)
In December 2016, appellant filed a petition for recall and resentencing to a misdemeanor pursuant to Proposition 47 on the basis that the value of the property taken was not more than $950. He argued that the car was being sold for $800 and that he paid for it with $600 in counterfeit bills. The trial court denied the petition on December 27, 2016. We affirmed the denial. The California Supreme Court granted review and transferred the case back to us for reconsideration under Page, supra. We again affirm.
DISCUSSION
"Proposition 47, enacted by California voters in November 2014, reduced certain felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure to allow defendants who previously suffered felony convictions for offenses that are now classified as misdemeanors under Proposition 47 to petition the trial court to reduce their convictions to misdemeanors and to resentence them, if they are still serving time on their convictions. (Pen. Code, § 1170.18, subds. (a), (f).)" (People v. Van Orden (2017) 9 Cal.App.5th 1277, 1282 (Van Orden), review granted June 14, 2017, review dismissed March 14, 2018, S241574.) This provision, section 1170.18, provides "retrospective relief . . . to persons who were serving, or who had already completed, felony sentences for offenses now redefined as misdemeanors." (People v. DeHoyos (2018) 4 Cal.5th 594, 598 (DeHoyos).)
Proposition 47 added section 490.2, which "redefines the crime of petty theft as 'obtaining any property by theft where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950).' (§ 490.2, subd. (a).) Section 490.2 also directs any petty theft, so defined, shall be punished as a misdemeanor." (Van Orden, supra, 9 Cal.App.5th at p. 1282.) Appellant contends that the taking of a vehicle under Vehicle Code section 10851 constitutes a theft and that section 490.2 therefore applies, rendering his conviction a misdemeanor if the vehicle was valued at less than $950.
The People argue that appellant was required to obtain a certificate of probable cause. Section 1237.5 requires a defendant to obtain a certificate of probable cause in order to appeal "from a judgment of conviction upon a plea of guilty or nolo contendere." (1237.5.) However, a certificate of probable cause is not required if the appeal is based solely upon grounds occurring after entry of the plea which do not challenge its validity, such as sentencing issues. (Cal. Rules of Court, rule 8.304(b)(4)(B); People v. Cuevas (2008) 44 Cal.4th 374, 379.) Appellant is not challenging the validity of his plea and therefore was not required to obtain a certificate of probable cause. (See People v. Emery (2006) 140 Cal.App.4th 560, 564-565 ["In determining whether an appeal is cognizable without a certificate of probable cause, '"the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made." [Citation.]' [Citation.] If the challenge is in substance an attack on the validity of the plea, defendant must obtain a certificate of probable cause."].)
Section 1170.18 does not identify Vehicle Code section 10851 as one of the code sections amended or added by Proposition 47. (See § 1170.18, subd. (a).) Because Vehicle Code section 10851 was not directly modified by Proposition 47 and is not listed as one of the sections under which resentencing can be requested, "'Courts of Appeal disagreed whether Penal Code section 490.2 applied to vehicle theft under Vehicle Code section 10851, that is, whether a theft conviction under section 10851 could continue to be punished as a felony regardless of the value of the vehicle or whether it must be punished as a misdemeanor if the vehicle's value did not exceed $950.' [Citation.] In Page, our Supreme Court resolved the issue, holding that 'Proposition 47's new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense' such that 'obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.' [Citation.] Accordingly, after the passage of Proposition 47, a violation of Vehicle Code section 10851, subdivision (a) may be deemed a felony only if (1) it was based on nontheft driving or (2) it was based on theft of a vehicle worth more than $950." (In re J.R. (2018) 22 Cal.App.5th 805, 819.)
Appellant committed his offense in February 2016 and was sentenced on April 26, 2016, more than a year after the effective date of Proposition 47. (DeHoyos, supra, 4 Cal.5th at p. 597 ["Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day"].) The retrospective relief provided by section 1170.18 therefore does not apply to him. (See People v. Gutierrez (2018) 20 Cal.App.5th 847, 855 [because the defendant "had not even committed the crime charged at the time Proposition 47 went into effect . . . relief under . . . section 1170.18 is unavailable to him"].) Instead, at the time appellant entered into the plea agreement on April 1, 2016, Proposition 47 was in effect and had added section 490.2, designating theft of property worth less than $950 a misdemeanor. Moreover, numerous cases already had addressed whether a defendant convicted under Vehicle Code section 10851 might be eligible for resentencing under Proposition 47. (See, e.g., People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793, affirmed as modified by Page, supra, 3 Cal.5th 1175; People v. Haywood (2015) 243 Cal.App.4th 515, review granted March 9, 2016, matter transferred March 21, 2018, S232250; People v. Ortiz (2016) 243 Cal.App.4th 854 (Ortiz), review granted March 16, 2016, dismissed and remanded Feb. 28, 2018, S232344; People v. Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016, matter transferred March 21, 2018, S234150.)
Under the version of Proposition 47 in effect at the time appellant filed his petition, the retrospective relief provision provided: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing." (Former § 1170.18, subd. (a) (2014), italics added.) However, the Legislature amended the statute, effective January 1, 2017, to clarify that the purpose of section 1170.18 is to provide retrospective relief to persons already serving a sentence. The statute now states, in pertinent part, that "[a] person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence." (§ 1170.18, subd. (a), as amended by Stats. 2016, ch. 767, § 1, p. 5313, eff. Jan. 1, 2017.)
One of these cases, decided in January 2016, held that "a defendant convicted under Section 10851 may be eligible for Proposition 47 resentencing if he or she can show the offense qualifies as a petty theft under Section 490.2." (Ortiz, supra, 243 Cal.App.4th at p. 857.) Thus, by the time appellant entered into the plea agreement, there was published caselaw indicating that appellant's offense might have been punishable as a misdemeanor petty theft, depending on the value of the vehicle. Nonetheless, appellant pled no contest to a felony violation of Vehicle Code section 10851 and stipulated to a factual basis for the felony plea.
"'"The legal effect of [a no contest plea] to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes." (§ 1016, subd. 3.) A guilty plea "admits every element of the crime charged" [citation] and "is the 'legal equivalent' of a 'verdict' [citation] and is 'tantamount' to a 'finding' [citations]" [citation].' [Citation.]" (People v. Voit (2011) 200 Cal.App.4th 1353, 1364 (Voit); accord People v. Palacios (1997) 56 Cal.App.4th 252, 257 ["'A plea of guilty admits every element of the offense charged . . . , all allegations and factors comprising the charge contained in the pleading . . . .' [Citation.] The legal effect of a no contest plea is the same."].) "In essence, a [no contest] plea 'concedes that the prosecution possesses legally admissible evidence sufficient to prove defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Egbert (1997) 59 Cal.App.4th 503, 509.) "Thus, a guilty plea waives any right to raise questions regarding the evidence, including its sufficiency or admissibility. [Citation.]" (People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187.)
Appellant's no contest plea thus was sufficient to establish his felony conviction. There is no indication that he challenged the factual basis for his plea, moved to withdraw his plea, or sought a certificate of probable cause to appeal. Instead, he filed a petition for resentencing under section 1170.18, which by its terms does not entitle him to relief.
Appellant's remedy, if any, is to file a petition for writ of habeas corpus based on ineffective assistance of trial counsel for failure to timely raise the issue whether there was a factual basis for his plea.
DISPOSITION
The postjudgment order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.