Opinion
B260586
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM H. SMITH, Defendant and Appellant.
Patricia S. Lai, 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, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Russell A. Lehman, Mary Sanchez, and Paul S. Thies, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. MA062986 APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed with directions. Patricia S. Lai, 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, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Russell A. Lehman, Mary Sanchez, and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2014, defendant William H. Smith appealed from the denial of his petition for recall and resentencing under Proposition 47, arguing that the initiative, which reduced the penalty for theft of property worth $950 or less, applied to his felony conviction for taking or driving a vehicle with a prior under Penal Code section 666.5. In 2016, we concluded he was not convicted of a qualifying theft offense and affirmed. The Supreme Court granted review and has now transferred the case back to us for reconsideration in light of its decision in People v. Page (2017) 3 Cal.5th 1175 (Page). Upon reconsideration, we hold that defendant's petition and record of conviction do not present a prima facie basis for relief under Proposition 47 and affirm without prejudice to defendant filing a new petition that establishes his eligibility.
BACKGROUND
On May 10, 2014, deputies from the Los Angeles County Sheriff's Department saw a 1999 Dodge Dakota pickup truck without a front license plate and pulled it over. After discovering the truck had been reported stolen in North Carolina, they arrested defendant, the driver.
By felony complaint filed May 13, 2014, defendant was charged with one count of driving or taking a vehicle with a prior (Pen. Code, § 666.5, subd. (b); count 1). The complaint also alleged defendant had been previously convicted of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a))—and that this offense constituted both the predicate felony for count 1 and a prison prior (Pen. Code, § 667.5, subd. (b)). On May 13, 2014, defendant pled no contest to count 1 and admitted the prior felony conviction. On June 3, 2014, the trial court suspended imposition of sentence and placed defendant on formal probation for three years. Among other probationary terms, the court ordered defendant to serve eight days in county jail, perform 40 days of community labor, and report to the probation department within 48 hours. The court dismissed the prison prior (Pen. Code, § 667.5, subd. (b)).
Defendant failed to report to the probation department and to appear in court as ordered. Accordingly, the court revoked his probation and issued a bench warrant for his arrest. After defendant was arrested or surrendered, he was remanded to custody without bail pending a probation violation hearing.
On November 12, 2014, defendant filed a petition for recall and resentencing under Proposition 47. At a hearing on November 17, 2014, defense counsel acknowledged that Penal Code section 666.5 (Section 666.5) is not an enumerated offense under Proposition 47, but argued that the initiative's reduction of other, similar crimes implied defendant's conviction under Section 666.5 was likewise reducible from a felony to a misdemeanor. The court disagreed and denied the petition; it found that Proposition 47 did not apply to Section 666.5 or to "Vehicle Code section 10851, which is really the precursor to [Section] 666.5."
Thereafter, defendant waived his right to a formal probation violation hearing and admitted violating probation by failing to report to the probation department. The court revoked and reinstated probation, required defendant to serve an additional 180 days in county jail, and imposed and suspended a three-year sentence in county jail.
Defendant filed a timely notice of appeal, and on August 31, 2016, we affirmed by unpublished opinion, concluding that neither Section 666.5 nor Vehicle Code section 10851 (Section 10851) was eligible for relief under Proposition 47. The Supreme Court granted review, and on March 21, 2018, the Court transferred the matter to us for reconsideration in light of Page, supra, 3 Cal.5th 1175.
DISCUSSION
Defendant contends that under Page, Penal Code section 490.2 (Section 490.2), which reduced the penalty for "obtaining any property by theft where the value of the ... property taken does not exceed nine hundred fifty dollars ($950)," applies to at least some convictions for taking or driving a vehicle under Section 10851, and that had his offense been reduced to a misdemeanor, the Section 666.5 alternative sentencing scheme would not apply. The People argue that Section 666.5 is not reducible under Proposition 47, that defendant's conviction was based on post-theft driving rather than theft, and that in any event, defendant failed to establish a prima facie basis for relief.
1. Proposition 47
On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative aimed to "ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from" the Act in elementary and high school programs, victims' services, and mental health and drug treatment. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)
Proposition 47 targeted these goals in four ways: (1) it amended the Penal Code and Health and Safety Code to reduce certain property crimes and possessory drug offenses from felonies or wobblers to misdemeanors; (2) it allowed people serving felony sentences for newly-reduced offenses to ask the court to resentence them as misdemeanants (Pen. Code, § 1170.18, subds. (a), (b)); (3) it allowed people who had finished serving a qualified felony sentence to ask the court to reclassify the conviction as a misdemeanor (Pen. Code, § 1170.18, subds. (f)-(h)); and (4) it created a Safe Neighborhoods and Schools Fund to be financed with savings generated by the changes to the sentencing laws (Gov. Code, § 7599 et seq.). (Ballot Pamp., supra, text of Prop. 47, § 3, p. 70.)
As the Legislative Analyst explained, "some crimes ... can be charged as either a felony or a misdemeanor. These crimes are known as 'wobblers.' Courts decide how to charge wobbler crimes based on the details of the crime and the criminal history of the offender." (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.)
As relevant to the present case, though Proposition 47 purported to reduce the penalties for grand theft, it did not directly amend any substantive theft statute. (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35 ["Specifically, the measure reduces the penalties for the following crimes: [¶] Grand Theft."].) Instead, the initiative added a new provision to the Penal Code chapter dealing with theft. (§ 490.2; see Pen. Code, § 484 et seq.) The new provision provides, "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" unless the defendant has been convicted of a specified violent or serious crime. (§ 490.2.)
Under Penal Code section 1170.18, a defendant currently serving a felony sentence for a crime that would have been a misdemeanor under Proposition 47 may petition for resentencing in accordance with the provisions of the Act, including Section 490.2. (Pen. Code, § 1170, subds. (a)-(b).) In Page, the Supreme Court concluded that Section 490.2 applies to some—but not all—felony convictions under Section 10851. (Page, supra, 3 Cal.5th at pp. 1187-1188.) To explain why, we review the intersection of Section 10851 and a typical theft offense.
2. Obtaining Property by Theft
As enacted by Proposition 47, Section 490.2 neither redefines nor establishes a substantive theft offense. Instead, "theft" is defined in Penal Code section 484, subdivision (a), which provides: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (See People v. Davis (1998) 19 Cal.4th 301, 304-305 [Pen. Code, § 484 consolidates several formerly distinct offenses into the single crime of theft, including larceny and theft by trick].) Penal Code section 490a, in turn, provides that any law referring to larceny, embezzlement, or stealing is a theft offense. (Pen. Code, § 490a.)
The statute's reference to various "felonious[ ]" takings imports the common law's specific intent requirement into Penal Code section 484's designations of these takings as thefts. (People v. Avery (2002) 27 Cal.4th 49, 55, 58.) To steal or "obtain[ ] property by theft," a defendant must take the property with the specific intent "to permanently deprive the owner of possession." (People v. Davis, supra, 19 Cal.4th at p. 305; Avery, at p. 54 ["California courts have long held that theft by larceny requires the intent to permanently deprive the owner of possession of the property."].) Without "a specific intent to steal, i.e., an intent to deprive an owner permanently of his property," "[t]he taking of property is not theft[.]" (People v. Butler (1967) 65 Cal.2d 569, 572-573, overruled on other grounds by People v. Tufunga (1999) 21 Cal.4th 935, 956; see People v. Matlock (1959) 51 Cal.2d 682, 694 ["It is elementary that the taking of property is not theft in the absence of an intent to steal."].)
Every theft offense is either grand theft or petty theft—and the punishment options depend on the degree of the crime. (Pen. Code, § 486.) Currently, a defendant commits grand theft, a wobbler, "[w]hen the money, labor, or real or personal property taken" exceeds $950. (Pen. Code, § 487, subd. (a).) Before the passage of Proposition 47, however, not all theft crimes were subject to the $951 grand-theft minimum. Theft of some property became grand theft at a lower value threshold. For example, a defendant only had to steal $250 worth of "domestic fowls, avocados, olives, citrus," or other produce to be guilty of grand theft. (Id., subd. (b)(1); see Id., subd. (b)(2) [$250 worth of aquacultural products from a commercial or research operation].)
And theft of other types of property was deemed grand theft regardless of value. For example, every theft of a "hog, sow, boar, gilt, barrow, or pig" was designated grand theft (Pen. Code, § 487a), as was theft of "gold dust, amalgam, or quicksilver" from "any mining claim, tunnel, sluice, undercurrent, riffle box, or sulfurate machine" (Pen. Code, § 487d). (See People v. Whitmer (2014) 230 Cal.App.4th 906, 918 ["It is well established that the Legislature's intent regarding this provision was to designate theft of the enumerated items as grand theft regardless of their value."].)
Any theft not defined as grand theft is petty theft, a misdemeanor (Pen. Code, § 488)—and Section 490.2 redefines petty theft. As discussed, Section 490.2 reduces the possible punishment for defendants convicted of "obtaining property by theft" worth $950 or less. The statute provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft" worth $950 or less "shall be considered petty theft and shall be punished as a misdemeanor."
The first clause—"Notwithstanding Section 487 or any other provision of law defining grand theft"—is a nonrestrictive phrase, set off with a comma; the rest of the sentence is an independent clause. (See Garner, Garner's Dictionary of Legal Usage (3d ed. 2011) pp. 782, 888-889 [restrictive and nonrestrictive clauses].) Because the nonrestrictive phrase does not limit the rest of the sentence, the plain language of Section 490.2 stands on its own. (Page, supra, 3 Cal.5th at p. 1186.) It provides, "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." (§ 490.2, subd. (a).) On its face, therefore, Section 490.2 reclassifies the array of criminal behavior described in the theft statutes as petty theft whenever the stolen property is worth $950 or less. (Page, at pp. 1183-1184, 1186-1187.)
3. Section 10851 can be a theft offense.
Applying these principles to the issue before us, to convict a defendant of either grand theft or petty theft of an automobile, the People must prove the defendant intended to deprive the owner of possession of his car permanently. (Pen. Code, § 484.) A violation of Section 10851, on the other hand, does not require this intent. Indeed, the main difference between the two offenses is the required mens rea—the gravamen of a theft crime.
A violation of Section 10851, subdivision (a), requires proof of the following elements:
1. The defendant took or drove someone else's vehicle;Section 10851 "proscribes a wide range of conduct." (People v. Jaramillo (1976) 16 Cal.3d 752, 757.) A "person can violate that section by driving or taking a vehicle. The acts constituting driving a vehicle and taking a vehicle are separate and distinct." (People v. Barrick (1982) 33 Cal.3d 115, 135.)
2. The owner did not consent to the taking or driving; and
3. The defendant intended to deprive the owner of possession or ownership for any period.
In this context, "taking" is not a synonym for stealing; it is a legal term of art describing one element of theft by larceny. (People v. Gomez (2008) 43 Cal.4th 249, 255.) Taking "has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' " (Ibid.) Therefore, if a defendant takes or drives a vehicle with the intent to deprive the owner of possession temporarily, he has not committed theft. (People v. Garza (2005) 35 Cal.4th 866, 871; People v. Barrick, supra, 33 Cal.3d at p. 135.) On the other hand, if he takes or drives the vehicle with the intent to deprive the owner of possession permanently—that is, with the intent to steal it—he has committed a theft offense. (Garza, at pp. 871, 876, 878-879, 880-881.) Put another way, every car thief necessarily violates Section 10851, but a defendant who takes or drives a vehicle is not necessarily a car thief. (Ibid.)
As discussed, Section 490.2 indisputably applies only to theft offenses. Because driving or taking a vehicle with the intent to deprive the owner of temporary possession is not theft, the Supreme Court held in Page that defendants convicted of this form of Section 10851 are ineligible for resentencing under Proposition 47. (Page, supra, 3 Cal.5th at p. 1187.) On the other hand, the Court held, defendants convicted of Section 10851 under a theft theory are eligible for resentencing. (Page, at pp. 1186-1188.)
The Supreme Court did not decide "whether equal protection or the avoidance of absurd consequences requires that misdemeanor sentencing under section 490.2 and 1170.18 extend not only to those convicted of theft under [Section] 10851, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188, fn. 5.) Those issues are not before us here.
Section 666.5 is an alternative sentencing provision that applies to recidivist car thieves and those previously convicted of violating Section 10851. It requires conviction of an enumerated offense first—here, Section 10851—then provides for increased penalties for any defendant with a prior qualifying theft conviction.
Although the Page Court did not explicitly address how its holding impacted convictions under Section 666.5, the Court did explain that " '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, second italics added; id. at p. 1187 ["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"].) This language appears broad enough to encompass Section 666.5.
4. Defendant's petition was insufficient.
The initial screening of a Proposition 47 petition is based on the petition itself and the superior court file. (Couzens & Bigelow, Sentencing California Crimes (The Rutter Group 2018) § 25.14.) If the court finds, based on the petition and its review of the record, that there is a prima facie basis for relief, the court should then hold "a full qualification hearing where any additional evidence could be received on the issue of eligibility." (Ibid.)
Here, defendant has failed to set forth a prima facie basis for relief. Defendant's petition—which did not utilize CRIM 235, the superior court's approved form—did not allege that he had been convicted of Section 10851 or Section 666.5, that the crime was a theft offense, or that the vehicle was worth $950 or less. Nor does the superior court file establish a prima facie basis for relief. To the contrary, it appears that defendant was ordered to pay approximately $5,147.54 in victim restitution based on damage to the stolen truck, which indicates the truck was worth substantially more than $950.
At sentencing, the court ordered defendant to pay $419 in fines and fees—a $300 restitution fine, a $10 crime prevention fine (plus $39 in penalty assessments), a $40 court security fee, and a $30 conviction assessment—plus victim restitution in an amount to be determined by the probation department. According to the probation report dated October 28, 2014, defendant owed $5,566.54 in total outstanding financial obligations. Since defendant had not made any payments, victim restitution can be calculated as this sum less $419, for a total of $5,147.54. As the victim stated the truck was "destroyed" and "I want my money back," it appears that all or most of this amount was based on the value of the truck.
But the parties did not litigate either the value of the truck or whether the current or prior convictions were based on theft or post-theft driving. And the trial court offered no opinion on those questions. Accordingly, we affirm without prejudice to defendant filing a new petition providing evidence that he is eligible for resentencing or reclassification under Proposition 47. (See Page, supra, 3 Cal.5th at p. 1189 ["But as 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."].)
DISPOSITION
The order denying defendant's petition is affirmed without prejudice to consideration of a new petition providing evidence of his eligibility for resentencing or reclassification under Proposition 47.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------