Opinion
E065589
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK AARON VAUGHN, Defendant and Appellant.
Cindy Brines, 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, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Daniel J. Hilton and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF101615, SWF002036, RIF109875 & RIF75287) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Cindy Brines, 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, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Daniel J. Hilton and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mark Aaron Vaughn appeals from the trial court's denial of three separate petitions under Penal Code section 1170.18 to reduce his convictions for driving or taking a vehicle under Vehicle Code section 10851 and receiving a stolen vehicle under Penal Code section 496d to misdemeanors. We affirm the order without prejudice to filing new petitions regarding the Vehicle Code section 10851 convictions pursuant to People v. Page (2017) 3 Cal.5th 1175 (Page).
PROCEDURAL BACKGROUND
On November 4, 2002, defendant entered guilty pleas in two different cases. In case No. SWF002036, defendant pled guilty to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), with a prior vehicle theft conviction (Pen. Code, § 666.5), and admitted a prior prison term conviction (Pen. Code, § 667.5, subd. (b)). The court sentenced defendant to the middle term of three years for the conviction plus one year for the prison term enhancement, for a total term of four years.
In case No. RIF101615, defendant pled guilty to two counts of unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a)), two counts of receiving a stolen vehicle (Pen. Code, § 496d), and one count of driving without regard for the safety of others while fleeing a police officer (Veh. Code, § 2800.2). The court sentenced defendant to four years, concurrent with the sentence in case No. SWF002036.
On November 5, 2003, in a third case, case No. RIF109875, defendant pled guilty to one count of unlawfully taking or driving a vehicle with a prior vehicle theft conviction (Pen. Code, § 666.5) and one count of second degree burglary (Pen. Code, § 459). He admitted a prior prison term conviction. The court sentenced defendant to five years, concurrent with an existing sentence and with credit for time served on the existing sentence.
On November 4, 2014, voters enacted Proposition 47, entitled "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Proposition 47 provides for any defendant currently "serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing" under the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a).) Proposition 47 further provides that "[u]pon receiving a petition under subdivision (a) [i.e., defendant's petition for recall of sentence], the court shall determine whether the petitioner satisfies the criteria in subdivision (a)." (§ 1170.18, subd. (b).)
On January 12, 2016, defendant filed petitions for resentencing under Penal Code section 1170.18 for each of the above three cases. On January 14, 2012, the People filed responses, arguing the charges were not qualifying felonies under Penal Code section 1170.18. On February 24, 2016, the trial court denied each of these petitions.
Defendant also filed a notice of appeal in superior court case No. RIF75287. However, since no issues have been raised regarding it, we deem that appeal to be abandoned.
Following this court's opinion filed on February 28, 2017, affirming the court's orders, defendant petitioned for review by the Supreme Court, which issued a "grant and hold" order deferring further briefing pending its decision in Page. (People v. Vaughn, case No. S241069, review granted June 14, 2017.) On November 30, 2017, the Supreme Court issued its opinion in Page, supra, 3 Cal.5th 1175. On March 21, 2018, the Supreme Court transferred this case back to this court for reconsideration after Page. This court vacated its opinion and invited supplemental briefing, which the parties have provided.
DISCUSSION
Defendant challenges the trial court's denial of his petitions to reduce to misdemeanors his convictions for driving or taking a motor vehicle under Vehicle Code section 10851 and receiving a stolen vehicle under Penal Code section 496d.
1. Vehicle Code section 10851 and Proposition 47
The parties and this court agree that, under Page, a defendant convicted of Vehicle Code section 10851 is eligible for resentencing under Proposition 47 where the violation involves: (1) the actual theft of the vehicle; (2) whose value is $950 or less.
Unlawfully driving or taking a vehicle does not appear on the list of felonies reduced to misdemeanors by Proposition 47. (§ 1170.18, subd. (a).) However, among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, is petty theft, defined as "obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed . . . $950." (§ 490.2, italics added; see § 1170.18, subd. (a).) The Supreme Court in Page reasoned that, "An automobile is personal property. 'As a result, 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.) "A defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft . . . could (if the vehicle was worth $950 or less) receive only misdemeanor punishment pursuant to section 490.2 and is thus eligible for resentencing under section 1170.18." (Id. at p. 1184.)
2. Affirm Without Prejudice re Vehicle Code section 10851
Defendant argues this court should reverse the trial court's denial of his petitions and order his convictions for Vehicle Code section 10851, subdivision (a), be reduced to misdemeanors. The People counter that we should affirm the court's orders without prejudice to the court considering subsequent petitions for Proposition 47 relief on the Vehicle Code section 10851 convictions. Under Page, the People are correct.
Page does not change the established rule that "[a] defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility." (Page, supra, 3 Cal.5th at p. 1188.) Here, the record does not affirmatively establish both required prongs for resentencing—that defendant stole the vehicles and that the vehicles were worth $950 or less. Under Page, therefore, the court properly denied the petitions. (Id. at p. 1189.) However, also under Page and the authorities it cites, defendant is entitled to file new petitions that meet the statutory requirements as fleshed out in the courts subsequent to the enactment of Proposition 47. (Ibid.)
3. Applicability of Proposition 47 to Penal Code Section 496d Offenses
Defendant argues the court erred when it concluded his convictions for receiving a stolen vehicle were ineligible for reduction to a misdemeanor under Proposition 47. As explained post, the trial court was correct.
Felony crimes reduced to misdemeanors by Proposition 47 include shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2); and receiving stolen property where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list section 496d, subdivision (a), as eligible for Proposition 47 relief, and Proposition 47 did not amend section 496d, subdivision (a), to reduce the crime to a misdemeanor.
Section 490.2 states that, notwithstanding any provision defining grand theft, the offense of obtaining property by theft, where the value of property at issue does not exceed $950, shall be considered petty theft and punished as a misdemeanor. (§ 490.2, subd. (a).) A petty theft conviction under section 490.2, which is eligible for relief under Proposition 47, is a different type of crime than that of buying or receiving a stolen vehicle. (§ 496d.) This is likely why section 1170.18, subdivision (a), lists section 496 (receiving stolen property) separately as an offense eligible for reclassification, rather than including it under the petty theft statute, section 490.2. This suggests that Proposition 47 voters did not consider receiving stolen property as a form of theft.
The text and structure of Proposition 47 convey that section 490.2's clear purpose was to reduce punishment for crimes of "obtaining any property by theft" that were previously punished as "grand theft" when the stolen property was worth less than $950. A section 496d, subdivision (a) conviction is not for theft. It is for receiving stolen property. (People v. Romanowski (2017) 2 Cal.5th 903, 909, emphasis added.) Accordingly, "in light of section 490.2's language and its statutory context—which includes both the other statutory provisions that Proposition 47 enacted and previously existing features of the Penal Code—we conclude that the statute's unqualified references to 'obtaining any property by theft' and 'any . . . provision of law defining grand theft,'" are inapplicable to the crime of receiving a stolen vehicle. (Romanowski, at p. 910; see § 490.2, subd. (a).) Therefore defendant is not statutorily eligible for relief under section 490.2.
4. Equal Protection and Penal Code Section 496d Offenses
Defendant next contends that, assuming Proposition 47 applies to Penal Code section 496, subdivision (a), but not to Penal Code section 496d, subdivision (a), then the omission of Penal Code section 496d from Proposition 47 violates his constitutional rights to equal protection under the law. We reject defendant's contention.
There are plausible reasons to treat sections 496 and 496d differently. For example, as the People maintain: "An owner of a vehicle relies on his or her vehicle for transportation to work, doctor's appointments, and numerous other necessities of life." Vehicle theft thus has an insidious effect on the ability of ordinary people to conduct their lives. The Legislature explicitly added section 496d to the Penal Code to provide "additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.)
Another plausible reason for the disparity from excluding a Penal Code section 496d conviction from qualifying for resentencing under Proposition 47 is the probable intent not to eliminate prosecutorial discretion to charge a Penal Code section 496d offense as either a felony or misdemeanor. Our Supreme Court has ruled that "numerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, ' "one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests[,]" ' the defendant cannot make out an equal protection violation." (People v. Wilkinson (2004) 33 Cal.4th 821, 838-839.)
Because there are plausible reasons for distinguishing between Penal Code section 496d, subdivision (a) offenses on the one hand, and Penal Code section 496, subdivision (a) offenses on the other hand, defendant has not established any violation of equal protection in failing to extend reclassification to Penal Code section 496d, subdivision (a) offenses.
DISPOSITION
The court's orders denying the petitions are affirmed without prejudice to the court subsequently considering properly filed petitions regarding the Vehicle Code section 10851 convictions providing evidence of defendant's eligibility for relief under Proposition 47. (See Page, supra, 3 Cal.5th at pp. 1180, 1189; People v. Perkins (2016) 244 Cal.App.4th 129, 139-140; People v. Sherow (2015) 239 Cal.App.4th 875, 881.)
The notice of appeal in superior court case No. RIF75287 is deemed abandoned.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
J. We concur: RAMIREZ
P. J. McKINSTER
J.