Opinion
E065488
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK AARON VAUGHN, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
Appellant's petition for rehearing filed April 3, 2017, is denied. The opinion filed in this matter on March 16, 2017, is modified as follows:
On page 7 of the opinion, the Disposition is replaced with the following:
The order denying defendant's petition for resentencing of his conviction is affirmed without prejudice to consideration of a subsequent properly filed petition.
Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. McKINSTER
J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR51241) OPINION APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
On November 4, 2014, the voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Proposition 47) which is set forth in former Penal Code section 1170.18. Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It provided for a procedure that "[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 . . . 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 . . . ." (§ 1170.18, subd. (a).)
All further references to Penal Code section 1170.18 refer to the former code.
On September 9, 1993, defendant and appellant Mark Aaron Vaughn pleaded guilty to a felony violation of former Vehicle Code section 10851. On November 10, 2015, he filed a petition to recall his sentence (Petition), which was denied by the trial court on the ground that his conviction was not eligible under Proposition 47.
The prior version of Vehicle Code section 10851 essentially provided for an increased punishment, but the other language was essentially the same. (See In re Pedro T. (1994) 8 Cal.4th 1041, 1043-1044.)
Defendant now claims on appeal that the trial court erred by denying his Petition because his conviction qualified under Proposition 47. Vehicle Code section 10851 is not listed in Penal Code section 1170.18, and the issue of whether a defendant is eligible for resentencing for a violation of that section is currently under review in the California Supreme Court in People v. Page (2015) 241 Cal.App.4th 714, review granted, January 27, 2016, S230793; and People v. Solis (2016) 245 Cal.App.4th 1099, review granted, June 8, 2016, S234150.
We affirm the denial of the Petition as defendant failed to establish he would have been found guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged in a felony complaint on August 25, 1993, with unlawful driving and taking of a vehicle, a 1989 GMC (Veh. Code, § 10851, subd. (A)); receiving a stolen motor vehicle, the same GMC, a felony (Former Pen. Code, § 496); and misdemeanor resisting arrest (Former Pen. Code, § 148). Defendant was additionally charged with having served two prior prison terms within the meaning of former Penal Code section 667.5, subdivision (b). According to the summary in the probation report, defendant was seen by the police driving the stolen GMC vehicle. Defendant evaded the police but eventually stopped and tried to flee on foot.
On September 9, 1993, defendant pleaded guilty to the violation of Vehicle Code section 10851 and admitted the two priors. He was sentenced to 16 months in state prison. The remaining charges were dismissed.
On November 10, 2015, defendant filed the Petition. Defendant stated on the Petition that he was seeking to have his violations of section 496, subdivision (a), receiving stolen property; and section 666, petty theft with a prior, reduced to misdemeanors. He additionally provided he was seeking to have a "10851 theft less than $950" reduced to a misdemeanor. He attached nothing to the Petition.
The Riverside County District Attorney's Office filed opposition pointing out that defendant was only convicted of violating Vehicle Code section 10851. They contended that Vehicle Code section 10851 was not an eligible conviction. The trial court issued a one-sentence order on January 25, 2016, finding that "10851 is not a qualifying felony."
DISCUSSION
Defendant's Petition filed in the trial court merely cited to his conviction of violating Vehicle Code section 10851, noting that the value was less than $950 and that it should be reduced to a misdemeanor. No further facts or argument regarding his eligibility for resentencing were presented in the Petition. On appeal, defendant contends the trial court erred by limiting the scope of Proposition 47. Additionally, since he was also charged with a violation of Penal Code section 496, receiving stolen property (for the same vehicle) a crime eligible under Proposition 47, his offense of violating Vehicle Code section 10851 was identical to a conviction of Penal Code section 496 and should be found eligible.
"The voters approved Proposition 47 at the November 4, 2014 general election, and it became effective the next day." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.) "Proposition 47 'was intended to reduce penalties for "certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors."'" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.)
Penal Code section 1170.18 provides for a defendant to file a petition to recall his sentence and to seek resentencing "in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act." Under Penal Code section 1170.18, subdivision (b) the trial court first determines whether the petition has presented a prima facie case for relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a), then he will be resentenced to a misdemeanor, unless the court, within its discretion, determines the petitioner would pose an unreasonable risk to public safety. (Pen. Code, § 1170.18, subd. (b).) A person who has completed his sentence can petition to have his felony conviction designated a misdemeanor. (Pen. Code, § 1170.18, subd. (f).)
Vehicle Code section 10851 is not listed in Penal Code section 1170.18. However, Proposition 47 added section 490.2 to the Penal Code. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part, "Notwithstanding [Penal Code s]ection 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." Penal Code section 487, subdivision (a), provides that if the value of the money, labor, real or personal property taken exceeds $950, the offense is a felony. Penal Code section 487, subdivision (d)(1) provides that grand theft occurs if the property is an automobile, regardless of the value.
Penal Code section 1170.18 clearly states that a defendant must show he was convicted of a felony but would have been convicted of a misdemeanor if Proposition 47 had been in effect at the time of the offense. For an offense under Penal Code section 490.2, which was added to the Penal Code, defendant had to allege facts in the Petition that he would have been guilty of a misdemeanor violation of Penal Code section 490.2 rather than the felony conviction.
It is true that Vehicle Code section 10851 is not listed in Penal Code section 1170.18. However, Vehicle Code section 10851 can be violated by the taking of a vehicle with the intent to permanently deprive the owner of the vehicle. (People v. Garza (2005) 35 Cal.4th 866, 881.) Assuming that a defendant takes a vehicle valued under $950, such violation could constitute a violation of Penal Code section 490.2.
Here, defendant's Petition only stated that he had been convicted of violating Vehicle Code section 10851 and that the vehicle was valued at less than $950. No further facts regarding his eligibility for resentencing were provided. The petitioner has the burden of establishing eligibility for relief under Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)
Defendant did not allege that, although Vehicle Code section 10851 is not listed in Proposition 47, he was otherwise eligible because his offense constituted a theft offense under Penal Code section 490.2. He did not present any evidence that the 1989 GMC vehicle in 1993 would be valued at less than $950. Further, the fact that he was also charged with violating Penal Code section 496 has no bearing on this case as he pleaded guilty to violating Vehicle Code section 10851; he failed to raise the issue below and; in fact, based on the above analysis, he would not be eligible if he did not take the vehicle with the intent to permanently deprive the owner, which is not required under Penal Code section 496.
Penal Code section 496 provided in 1993 that every person who buys or receives any property that he or she knows has been stolen shall be guilty of receiving stolen property. In 1998, Penal Code section 496d was added to the Penal Code, which specifically applies to receiving stolen vehicles. --------
Based on the foregoing, defendant was not entitled to have his felony conviction of violating Vehicle Code section 10851 reduced to a misdemeanor under Penal Code section 1170.18 because he did not meet his burden of showing he was eligible under Proposition 47.
DISPOSITION
The trial court's order denying defendant's petition to recall his sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: HOLLENHORST
Acting. P. J. McKINSTER
J.