Opinion
G051951
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH VILLANI, Defendant and Appellant.
Denise M. Rudasill, 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, Scott C. Taylor and Warren J. Williams, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 03WF1474) OPINION Appeal from an order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Affirmed in part, reversed in part, and remanded. Denise M. Rudasill, 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, Scott C. Taylor and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
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This Proposition 47 appeal presents a single issue: Does theft of a firearm qualify for resentencing under Penal Code section 1170.18? The court held it does not. Defendant appealed, and the People concede the court erred. We agree the court erred and thus reverse the order. However, the court made no finding regarding whether the firearm in question is valued at $950 or less. Accordingly, we remand to the court to make appropriate findings.
PROCEDURAL HISTORY
In 2005 defendant pleaded guilty to five counts of commercial burglary (Pen. Code, §§ 459, 460, subd. (b)),one count of petty theft with a prior (§ 666), one count of grand theft firearm (§ 487, subd. (d); the count at issue here), three counts of grand theft (§ 487, subd. (a)), two counts of receiving stolen property (§ 496, subd. (a)), one count of possession of a controlled substance for sale (Health & Saf. Code, § 11378), and one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)). Defendant admitted three prior strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)). Defendant was sentenced to a total prison term of 29 years 8 months, which was later reduced to 20 years 4 months.
All further statutory references are to the Penal Code unless otherwise indicated. --------
In December 2014 defendant filed the present petition for resentencing pursuant to section 1170.18. The court granted the petition as to two counts — second degree burglary and petty theft with a prior. It denied the petition as to the count for grand theft of a firearm. The court explained, "The court has ruled previously in other matters similar to this when there is a — the 490.2 section should apply to those offenses that are currently statutorily defined as grand theft based on the taking of the property with certain monetary value. [¶] And when you have property . . . that is defined by non- value characteristics such as a [section] 487[, subdivision (d)] vehicle or a [section] 487[, subdivision (d)] firearm, that Prop 47 does not extend to those circumstances."
DISCUSSION
Proposition 47 reclassified certain drug- and theft-related offenses from felonies (or wobblers) to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1092.) The measure reduced "penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.) Proposition 47 added section 490.2, which provides, "(a) 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," with certain exceptions inapplicable here.
As part of Proposition 47, the electorate enacted section 1170.18. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 1170.18 applies to persons convicted of a reclassified offense prior to Proposition 47's effective date, and allows them to petition the court for reduction of the felony to a misdemeanor. The question here is whether grand theft of a firearm was reclassified pursuant to section 490.2.
The court held it was not, but a recent Court of Appeal decision reached the opposite result: "Defendant was convicted of three counts under section 487, subdivision (d)(2), which makes it a grand theft to steal a firearm. Proposition 47 added a new provision, section 490.2, subdivision (a), which reclassifies felony section 487, subdivision (d)(2) grand theft violations into misdemeanors 'where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950).' Thus, petitioner would be entitled to resentencing on each conviction, provided he can meet his burden of showing, separately for each firearm, that its value does not exceed $950." (People v. Perkins (2016) 244 Cal.App.4th 129, 141.)
The People concede the court erred, and we agree. Under the plain meaning of section 490.2, obtaining any property by theft is a misdemeanor where the value of the "personal property" does not exceed $950. This broad definition encompasses firearms. And to the extent the structure of section 487 would counsel a different result because it defines grand theft in terms of monetary amount in some cases, and the character of the property in other cases (e.g., firearms, vehicles), section 490.2, subdivision (a) applies "[n]othwithstanding Section 487." Thus that structural distinction is irrelevant.
The parties dispute whether we should remand for the court to make findings regarding the value of the firearm, or whether we should simply direct the court to grant defendant's petition. The People contend there was no evidence presented concerning the value of the firearm, and, more importantly, the court never made any such findings. Defendant contends the court specifically asked the People whether there was any dispute as to the value, which defendant had asserted was $300. The People did not respond (defense counsel jumped in to answer the question instead), and defendant argues silence is consent.
We will remand for the court to make findings concerning the value of the firearm. The focus of the parties and the court was on the People's contention below that firearms are categorically excluded from the ambit of Proposition 47. Because the court ruled on that ground, it never reached the issue of the value of the firearm. And while defense counsel represented the value was $300, there is no evidence in the record before us to support that assertion.
DISPOSITION
The portion of the court's order of May 15, 2015, denying defendant's petition for resentencing as to count 4 is reversed and the matter is remanded to determine the value of the firearm. In all other respects, the order is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.