Opinion
E066813
03-07-2018
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL JEAN GOOD, Defendant and Appellant.
Andrea S. Bitar, 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, Theodore M. Cropley and Alana Cohen Butler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1401300) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. Andrea S. Bitar, 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, Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Samuel Jean Good appeals from the trial court's denial of his petition for resentencing under Proposition 47 of his felony conviction for unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5). On appeal, defendant argues he is entitled to Proposition 47 relief for his vehicle theft conviction because (1) the plain text of section 490.2 does not exclude vehicle theft offenses from " 'petty theft' " misdemeanor convictions, and (2) the Legislature intended Proposition 47 to make recall and resentencing available for vehicle theft convictions such as those under section 666.5 by broadening the category of " 'petty theft.' " In light of the California Supreme Court's recent opinion in People v. Page (2017) 3 Cal.5th 1175 (Page), we affirm the judgment without prejudice to allow defendant to refile his petition.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
On or about January 23, 2014 through January 25, 2014, defendant unlawfully drove and/or took a 1990 Chevrolet Lumina without the owner's consent and with the intent to temporarily or permanently deprive the owner of her vehicle.
The record does not contact detailed facts pertaining to the theft of the 1990 Chevrolet Lumina.
On April 11, 2014, a felony complaint was filed charging defendant with two counts of unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5; counts 1 and 2), to wit, a 1990 Chevrolet Lumina (count 1), and a 1977 Toyota pickup (count 2). The felony complaint also charged defendant with one count of grand theft of personal property exceeding $950 (§ 487, subd. (a); count 3), and one count of second degree burglary (§ 459; count 4). The felony complaint further alleged that defendant had sustained four prior prison terms within the meaning of section 667.5, subdivision (b).
On April 21, 2014, defendant pled guilty to count 1, unlawfully driving or taking a 1990 Chevrolet Lumina with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5). In return, the remaining charges and enhancement allegations were dismissed, and defendant was sentenced to two years in county jail with credit for time served.
On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors instead of felonies or alternative felony misdemeanors. (See § 1170.18, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant to file a petition or application to have his or her felony conviction resentenced to or redesignated as a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g).)
On July 22, 2016, defendant filed a petition for resentencing under Proposition 47 (§ 1170.18). In his petition, defendant asserted that he was still serving his sentence but was out of custody. The People opposed the petition, arguing that section 666.5 convictions were not eligible for resentencing under Proposition 47.
A hearing on the petition was held on September 9, 2016. At that time, defense counsel stated, "Our position is that clearly this is a theft offense. The real question becomes the value of what was taken, a 1990 Chevy Lumina. The estimate I got from Edmonds.com is $805.00." The prosecutor responded, "I got the Kelley Blue Book. It says it's worth $983.00 and I should also indicate that that is the value as of today. This is actually a 2014 case and the value is supposed to be taken from the time of the actual offense." The trial court denied defendant's petition without making any specific findings.
III
DISCUSSION
Defendant argues the trial court erred in denying his Proposition 47 petition, because he is entitled to Proposition 47 relief for his vehicle theft with a prior vehicle theft conviction in violation of Vehicle Code section 10851 and Penal Code section 666.5. Specifically, he asserts the plain text of section 490.2 does not exclude vehicle theft offenses from "petty theft" misdemeanor convictions, and the Legislature intended Proposition 47 to make recall and resentencing available for vehicle theft convictions such as those under section 666.5 by broadening the category of "petty theft."
Proposition 47 also added section 490.2, which provides in part, "[n]otwithstanding 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," unless the offense was committed by a defendant who is required to register as a sex offender (§ 290) or has previously been convicted of one or more serious or violent felonies listed in section 667, subdivision (e)(2)(C)(iv). (§ 490.2, subd. (a).)
Recently, our Supreme Court in Page, supra, 3 Cal.5th 1175, following a textual analysis of section 1170.18 and the voters' intent in passing Proposition 47, concluded "the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47." (Page, at p. 1180.) The court explained: "Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner's consent, and 'with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.' " (Page, at p. 1182; People v. Garza (2005) 35 Cal.4th 866, 871.) Although section 1170.18 does not expressly refer to Vehicle Code section 10851, it does permit resentencing to a misdemeanor under Penal Code section 490.2 for theft of property worth $950 or less. (Page, at p. 1180.) "Vehicle Code section 10851 may be violated in several ways, including by 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 section 1170.18 if the person can show the vehicle was worth $950 or less." (Page, at p. 1180.)
The Supreme Court in Page further determined that "[a] defendant seeking resentencing under 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." (Page, supra, 3 Cal.5th at p. 1188, citing People v. Romanowski (2017) 2 Cal.5th 903, 916; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137; People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.) "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]." (Page, at p. 1188.)
In Page, the "[d]efendant's petition 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." (Page, supra, 3 Cal.5th at p. 1189.) The Supreme Court therefore found the trial court properly denied defendant's petition, but noted "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." (Page, at p. 1189.)
Likewise, in this case, defendant has not met his burden of proof of establishing his eligibility. Defendant has not shown the value of the 1990 Chevrolet Lumina was $950 or less. Although at the hearing on the petition defense counsel argued the value of the vehicle was $805 based on an estimate obtained from Edmonds.com, no declaration or other evidence addressing the value of the vehicle was submitted with the unverified petition and the prosecutor argued the value of the vehicle was $983 based on the Kelley Blue Book. The petition itself just asserts, without elaboration, that the value of the vehicle is $850. In addition, to be eligible for resentencing, under Page, defendant must establish the basis for his felony conviction under Vehicle Code section 10851 and Penal Code section 666.5, i.e., he must show 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]." (Page, supra, 3 Cal.5th at p. 1188].) A resentencing court may be able to make this determination from the record of conviction. (Id. at p. 1189.) Here, because the trial court failed to make any specific findings, it did not address whether defendant's felony conviction was based on vehicle theft.
We note statements made by defendant's counsel (in briefs or during oral argument in the trial court) are not testimony. (See People v. Dykes (2009) 46 Cal.4th 731, 793 [jury properly instructed that counsel's statements do not constitute evidence].) --------
Accordingly, because defendant is entitled to the opportunity to allege and prove his eligibility for resentencing, we affirm the trial court's denial order without prejudice to subsequent consideration of a properly filed petition providing evidence of defendant's eligibility for relief under Proposition 47. (See Page, supra, 3 Cal.5th at pp. 1180, 1189; People v. Perkins, supra, 244 Cal.App.4th at pp. 139-140, 142; People v. Sherow, supra, 239 Cal.App.4th at p. 881.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.