Opinion
E063471
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES LEWIS STATES, Defendant and Appellant.
Valerie G. Wass for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1303081) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Reversed. Valerie G. Wass for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Charles Lewis States pleaded guilty to attempted unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851, subdivision (a)and Penal Code section 664, subdivision (a). Thereafter, Proposition 47 went into effect. Proposition 47 allows certain defendants convicted of specified theft or drug-related felonies to petition to have those convictions treated as misdemeanors. The trial court denied defendant's petition under Proposition 47, on the ground that Proposition 47 does not apply to a conviction for unlawful taking or driving of a vehicle.
Defendant appeals. He contends that Proposition 47 must be construed as applying to a conviction for attempted unlawful taking or driving of a vehicle. Alternatively, he contends that, if Proposition 47 does not apply to a conviction for attempted unlawful taking or driving of a vehicle, it violates equal protection.
Pursuant to People v. Page (2017) 3 Cal.5th 1175, we will hold that Proposition 47 may or may not apply, depending on the circumstances of the underlying crime, and defendant is entitled to an opportunity to file an amended petition alleging the requisite circumstances. This obviates his equal protection argument.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, defendant pleaded guilty to attempted unlawful taking or driving of a vehicle (Pen. Code, § 664, subd. (a); Veh. Code, § 10851, subd. (a)) and admitted one "strike" prior conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was sentenced to a total of two years (double the midterm) in prison. He allegedly served that sentence.
In 2014, Proposition 47 went into effect. (See People v. Page, supra, 3 Cal.5th at p. 1179.)
In 2015, defendant filed a petition to have the conviction redesignated as a misdemeanor pursuant to Penal Code section 1170.18. The trial court denied the petition. It ruled that defendant was not eligible for resentencing because unlawful taking or driving of a vehicle is not one of the crimes specified in Penal Code section 1170.18.
II
DEFENDANT HAS NOT SHOWN ELIGIBILITY UNDER PROPOSITION 47
A. General Background Regarding Proposition 47.
In general, Proposition 47 reduced certain theft-related offenses — provided they involve property worth $950 or less — and certain possessory drug offenses from felonies (or wobblers) to misdemeanors, unless the defendant is otherwise ineligible. (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2017 rev. ed.) p. 27 (Couzens & Bigelow), available at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of Apr. 26, 2018.) It also allowed persons previously convicted of one of the specified offenses as a felony to petition to reduce the prior conviction to a misdemeanor. (Pen. Code, § 1170.18.)
In particular, as relevant here, Proposition 47 enacted Penal Code section 490.2, subdivision (a) (section 490.2(a)), which 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 . . . ."
It also enacted Penal Code section 1170.18, subdivision (f) (section 1170.18, subdivision (f)), which provides: "A person who has completed his or her sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application . . . to have the felony conviction or convictions designated as misdemeanors."
"The ultimate burden of proving . . . eligibility lies with the petitioner. [Citation.] 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. In these cases, an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (People v. Romanowski (2017) 2 Cal.5th 903, 916.)
B. Statutory Construction.
In People v. Page (2017) 3 Cal.5th 1175, the California Supreme Court held that a person convicted under Vehicle Code section 10851, subdivision (a) is eligible for resentencing under Proposition 47, on two conditions. First, he or she must show that the crime constituted theft — i.e., unlawful taking (rather than unlawful driving) with the intent to permanently deprive (rather than temporarily deprive). (People v. Page, supra, at pp. 1181-1189.) And second, he or she must show that the value of the property taken was $950 or less. (Ibid.) The court further held that, in cases decided before these principles were "judicially articulated," the defendant "is entitled to an opportunity to file a new petition meeting the statutory requirements." (Id. at p. 1189.)
Defendant did not meet his burden. The petition provided insufficient information about the nature of the crime and the value of the vehicle to permit the trial court to determine whether defendant is eligible for resentencing. Defendant points out that the plea agreement specified the crime as "[a]ttempted [u]nlawful taking of a vehicle"; moreover, the abstract of judgment recited that defendant was convicted of "attempt: take ve." (Capitalization altered.) Still, there was no evidence as to whether defendant acted with the intent to permanently deprive, as necessary for theft, or only with the intent to temporarily deprive (i.e., joyride), which would be sufficient for the unlawful taking of a vehicle. (People v. Page, supra, 3 Cal.5th at p. 1182.) Defendant also points out that his counsel represented to the trial court that the value of the vehicle was $515. However, he did not introduce any evidence of this.
Pursuant to Page, we will give defendant an opportunity to file a petition meeting the statutory requirements.
III
DISPOSITION
The order appealed from is reversed and the matter is remanded with directions to allow defendant to file an amended petition within a reasonable time to be fixed by the trial court. (See People v. Sweeney (2016) 4 Cal.App.5th 295, 303.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.