Opinion
A147759
02-02-2018
In re T.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J0801144)
T.D. (Minor) appeals after the juvenile court denied his petition to reduce a felony to a misdemeanor pursuant to Proposition 47. (Pen. Code, § 1170.18.) We shall affirm the order without prejudice to the filing of a new petition.
I. BACKGROUND
Minor filed a petition for designation of felony adjudications as misdemeanors and for recalculation of his maximum term of confinement. As relevant to the issues before us, the petition alleged that Minor had admitted to one count of violating Vehicle Code section 10851 (section 10851), unlawful driving or taking a vehicle without the owner's consent, and that the value of the vehicle was less than $950. The petition was filed pursuant to Proposition 47, which reduces the punishment for certain offenses, making them punishable as misdemeanors rather than felonies, and allows those serving a sentence for a conviction of a felony who would have been guilty of a misdemeanor if Proposition 47 had been in effect at the time of the offense to petition for a recall of sentence. (People v. Page (2017) 3 Cal.5th 1175, 1179-1180 (Page); Pen. Code, § 1170.18.) The offenses eligible for resentencing include Penal Code section 490.2, for theft of property worth $950 or less. (Pen. Code, § 1170.18, subd. (a).) The People opposed the petition on the ground Proposition 47 did not apply to convictions for taking a motor vehicle under section 10851.
At the hearing on the petition, counsel for both parties discussed a police report, which is not contained in the record on appeal. It appears that the police report indicated that the vehicle Minor took was a 13-year-old motorcycle, that the police officer indicated its value was $500, that a cable on the motorcycle was cut, causing $215 in damage, and that the victim had requested additional restitution. The prosecutor argued the court should not give the officer's valuation any weight and that the officer did not have enough information to assess the motorcycle's value. It also appeared that another person and a second motorcycle, which the police report also valued at $500, had been involved in the incident.
The juvenile court denied the petition as to the section 10851 count, ruling as follows: "Probation report from May 28th, 2013, reflects that the minor was arrested by Antioch police for two counts of vehicle theft, which the minor and co-responsible stole two motorcycles from the victim's residence. To me, that sounds like they were acting in concert, so that means it was over $1,000 of motorcycles taken. And I also don't believe that was an accurate estimate in 2009 for one in 2002 and '96. [¶] I don't believe the burden was met in either case that it was under $950 total. [¶] It's denied both under the Proposition 47 not covering [section] 10851 and my finding as to the value being under $950." Defense counsel pointed out that Minor had admitted only one charge, involving a single motorcycle, and the charge relating to the second motorcycle had been dismissed.
II. DISCUSSION
Minor's primary contention on appeal is that Proposition 47 authorizes resentencing for a violation of section 10851 where the offense involved stealing a motor vehicle valued at less than $950. Our Supreme Court has recently resolved a split of opinion in the appellate courts on this issue. In Page, the high court ruled: "We conclude the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47. Penal Code section 1170.18 . . . does not expressly refer to Vehicle Code section 10851, but it does permit resentencing to a misdemeanor under Penal Code section 490.2 . . . for theft of property worth $950 or less. As this court has previously explained, Vehicle Code section 10851 may be violated in several ways, including by the theft of the vehicle. [Citation.] A person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under [Penal Code] section 1170.18 if the person can show the vehicle was worth $950 or less." (Page, supra, 3 Cal.5th at p. 1180.)
The court in Page went on to note that a defendant seeking resentencing under Penal Code section 1170.18 "bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility. [Citations.]" (Page, supra, 3 Cal.5th at p. 1188.) The defendant's petition had "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. The petition was therefore properly denied. 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. Such a petition 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.)
After Page was decided, we asked the parties to submit supplemental briefs regarding that decision's effect on this case. In his supplemental brief, the Attorney General acknowledges that under Page, a person who violated section 10851 is eligible for resentencing under Proposition 47 if the value of the property was $950 or less. He asks us to remand the matter to the trial court for further proceedings, to allow Minor to show that the motorcycle he was convicted of stealing was worth no more than $950. Minor, on the other hand, argues that the evidence showed the vehicle was valued at $500 and we should direct the trial court to grant his petition.
On the scant record before us, we cannot conclude the evidence showed conclusively that the motorcycle was worth $950 or less. However, the Attorney General concedes Minor is entitled to the opportunity to show, under the proper standards, that the motorcycle he was convicted of stealing was worth no more than $950. We agree. Following the lead of our high court, we shall direct the trial court to allow Minor to file a new petition providing evidence of his eligibility.
The Attorney General does not argue that it was proper for the trial court to take into account the value of the second motorcycle allegedly involved in the incident, as to which the charge had been dismissed.
III. DISPOSITION
The order is affirmed without prejudice to consideration of a petition providing evidence of Minor's eligibility under Proposition 47.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------