Opinion
E067053
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. MELINDA KAY THOMAS, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI014090) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Reversed. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On December 7, 2001, defendant and appellant Melinda Kay Thomas pled guilty to one count of unlawful driving or taking of a vehicle under Vehicle Code section 10851, subdivision (a). In exchange for her plea, the prosecution dismissed two forgery cases. On the same day, the trial court sentenced defendant to one year four months in state prison.
On September 6, 2016, defendant filed a petition to have her felony conviction reduced to a misdemeanor under Penal Code section 1170.18 (Proposition 47). The People opposed the motion, arguing that defendant was not entitled to relief because Vehicle Code section 10851 was not a qualifying felony under Proposition 47. On October 7, 2016, the trial court denied the petition.
Defendant previously filed a petition to have her felony conviction reduced to a misdemeanor under Penal Code section 1170.18. On June 12, 2015, the trial court denied her petition. We affirmed. We concluded that we did not need to decide whether Vehicle Code section 10851 was a qualifying felony for relief under Proposition 47 because defendant had failed to meet her burden of proving that the value of the vehicle was $950 or less. (People v. Thomas (June 28, 2016, E064089) [nonpub. opn.].) --------
On October 17, 2016, defendant filed a timely notice of appeal.
B. FACTUAL BACKGROUND
On September 25, 2001, Sharon Skrentny sold her 1986 Hyundai Excel to defendant for $550. Defendant paid for the car with a stolen check. Two days later, defendant was stopped while driving the Hyundai and was identified by Skrentny.
DISCUSSION
Defendant contends that her 2001 conviction for unlawful driving or taking a vehicle valued at $550 should be reduced to a misdemeanor pursuant to Proposition 47. Under the recent holding in People v. Page (2017) 3 Cal.5th 1175 (Page), we agree with defendant.
"Approved by the voters in 2014, Proposition 47 (the 'Safe Neighborhoods and Schools Act') reduced the punishment of certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that 'obtaining any property by theft' is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. (Id., subd. (a).) A separate provision of Proposition 47, codified in Penal Code section 1170.18, subdivision (a), establishes procedures under which a person serving a felony sentence at the time of Proposition 47's passage may be resentenced to a misdemeanor term if the person 'would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense.' (Pen. Code, § 1170.18, subd. (a).)" (Page, supra, 3 Cal.5th at pp. 1179.) In Page, the issues involved "the application of these provisions to a prior conviction under Vehicle Code section 10851, taking or driving a vehicle without the owner's consent." (Id. at p. 1180.)
In this case, the People argue that "Vehicle Code section 10851, subdivision (a) is not eligible to be reduced to a misdemeanor under [Penal Code] section 1170.18." In Page, however, the California Supreme Court recently held that "obtaining an automobile worth $950 or less by theft constitutes petty theft under [Penal Code]section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged." (Page, supra, 3 Cal.5th at p. 1187.) Therefore, "[a] defendant who, at the time of Proposition 47's passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is therefore eligible for resentencing under [Penal Code] section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Ibid.)
Defendant bears the burden of establishing eligibility under Penal Code section 1170.18. (Page, supra, 3 Cal.5th at p. 1188.) "To establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less ([Pen. Code, ]§ 490.2, subd. (a)), but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation]." (Ibid, fn. omitted.)
"Because vehicle theft often involves driving the vehicle, determining eligibility for resentencing under [Penal Code] section 1170.18 will frequently require distinguishing between theft and unlawful driving after a theft. Posttheft driving in violation of Vehicle code section 10851 consists of driving a vehicle without the owner's consent after the vehicle has been stolen, with the intent to temporarily or permanently deprive the owner of title or possession. Where the evidence shows a 'substantial break' between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft." (Page, supra, 3 Cal.5th at p. 1188)
Here, there is no dispute that the vehicle involved was under the $950 threshold—defendant paid $550 with a stolen check to purchase the vehicle in question. Defendant committed theft when she drove away with the victim's car after issuing the victim a stolen check. Since the car was transferred under the guise of a sale, defendant's taking was not a temporary one but instead, it was done with the intent to permanently deprive the victim from possessing the car. (In re Jesus O. (2007) 40 Cal.4th 859, 867 [theft "means that the defendant must have 'the specific intent at the time of the taking to permanently deprive the owner of the property' "].) In this case, there is no indication that defendant ever intended to return the car to the victim or simply use the car temporarily. Therefore, defendant met her burden of establishing eligibility under Vehicle Code section 1170.18.
Therefore, under Page, supra, 3 Cal.5th 1175, we reverse the trial court's denial of defendant's petition to designate her Vehicle Code section 10851 conviction as a misdemeanor.
DISPOSITION
The trial court's denial of defendant's petition under Proposition 47 to redesignate her Vehicle Code section 10851 conviction as a misdemeanor is reversed. The trial court is directed to grant defendant's Proposition 47 petition and to designate defendant's conviction under Vehicle Code section 10851 as a misdemeanor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.