Opinion
H044137
04-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER JAMES PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. SS122122A, SS141774A)
Defendant Alexander James Perez appeals from the denial of his application to reduce his felony conviction for unlawfully driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) to a misdemeanor under the terms of Proposition 47 (Pen. Code, § 1170.18, subd. (f)). The trial court denied his application, finding that Proposition 47, on its face, does not apply to convictions under Vehicle Code section 10851.
Unspecified statutory references are to the Penal Code. --------
While this case was pending on appeal, the California Supreme Court in People v. Page (2017) 3 Cal.5th 1175 (Page) held that a defendant who has been convicted of a violation of Vehicle Code section 10851, subdivision (a) is not categorically ineligible for relief under Proposition 47. (Page, supra, at p. 1180.)
Because Perez, like the defendant in Page, failed to present any allegations or evidence to show that his conviction was for theft of a vehicle valued at $950 or less, the trial court's denial of his application was appropriate. We will therefore affirm the order without prejudice to Perez filing a new application providing evidence of his eligibility for relief under section 1170.18.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Perez pleaded no contest to one felony count of taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)) and admitted the special allegations that he had suffered a prior conviction for the same offense (§ 666.5, subd. (a)) and had served a prior prison term (§ 667.5, subd. (b)). On July 31, 2014, the trial court sentenced Perez to a total term of three years in county jail, consisting of two years on the felony count of violating Vehicle Code section 10851, subdivision (a), plus one year for the prior prison term enhancement.
Having completed his sentence, Perez filed an application on August 11, 2016, pursuant to Proposition 47 (§ 1170.18, subd. (f)) to reduce his felony conviction to a misdemeanor. The trial court denied his application on the ground that Proposition 47 does not apply to convictions under Vehicle Code section 10851.
Per the allegations of the relevant complaint (Monterey County Superior Court No. SS141774A), filed on July 15, 2014, Perez "unlawfully [drove] and [took] a . . . 1998 Toyota Corolla . . . without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle."
II. DISCUSSION
On appeal, Perez contends that the trial court erred in failing to grant his application for redesignation under Proposition 47 because section 1170.18 should be construed to apply to felony convictions for vehicle theft (Veh. Code, § 10851, subd. (a)) so long as the value of the vehicle in question was $950 or less.
A. Relevant statutes and rules of statutory interpretation
On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 "reduced the penalties for a number of offenses." (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) For example, Proposition 47 added section 490.2 to the Penal Code. It provides: "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 . . . ." (§ 490.2, subd. (a).) Proposition 47 also enacted section 1170.18. Under subdivisions (f) and (g) of that provision, a person who has completed a felony sentence for an offense that would now be a misdemeanor under Proposition 47 is entitled to have his or her felony conviction designated as a misdemeanor upon filing an application with the trial court.
B. Analysis
Vehicle Code section 10851 punishes "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, 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 . . . ." (Veh. Code, § 10851, subd. (a).)
While this appeal was pending, the California Supreme Court determined that "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing." (Page, supra, 3 Cal.5th at p. 1184.) Vehicle Code section 10851 convictions may be redesignated as misdemeanors "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, supra, at p. 1187, italics added; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for redesignation after the sentence has been completed].)
The California Supreme Court explained that a person who has been convicted of grand theft is "clearly eligible" for resentencing under section 1170.18 if the value of the property taken was $950 or less. (Page, supra, 3 Cal.5th at p. 1182; see § 490.2, subd. (a).) The court observed that "while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under section 10851, it is, in effect, a form of grand, rather than petty, theft." (Page, supra, at p. 1186.)
According to Page, while "Vehicle Code section 10851 may be violated in several ways," only a certain type of violation of that section constitutes theft of a vehicle. (Page, supra, 3 Cal.5th at p. 1180.) The court explained: "Theft . . . requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession." (Id. at p. 1182.) " 'Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under [Vehicle Code] section 10851[, subdivision] (a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under [Vehicle Code] section 10851[, subdivision] (a) for posttheft driving is not a theft conviction . . . .' [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, 'suffered a theft conviction.' " (Id. at p. 1183.)
Consequently, "[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," and it was error for the trial court to conclude that the defendant was categorically ineligible under section 1170.18. (Page, supra, 3 Cal.5th at p. 1180.) To qualify for resentencing or redesignation under Proposition 47, a defendant must show both an intent to commit theft of the vehicle and that the vehicle in question was valued at $950 or less. (Id. at p. 1188.)
In this case, Perez's application for redesignation set forth no allegations or evidence to show that he intended to permanently deprive the owner of the vehicle in question or that its value was $950 or less. The district attorney's response also did not address those issues, but instead simply indicated that Perez was not entitled to the relief requested because his Vehicle Code section 10851 conviction was categorically ineligible for redesignation.
At the hearing, the trial court simply noted that the "People['s response] is that the code sections do not apply," and never reached the factual questions of whether Perez's conviction was based on a theft or whether the value of the vehicle was $950 or less. We construe this as a ruling that Perez's conviction under Vehicle Code section 10851, subdivision (a) was categorically ineligible for relief under Proposition 47. Under Page, this was error, but despite this error, the trial court still properly denied Perez's application as he failed to present evidence or allegations to show his intent to commit theft and that the vehicle was valued at $950 or less.
Nonetheless, because "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," Perez must be given an opportunity to file a new application meeting the statute's requirements. (Page, supra, 3 Cal.5th at p. 1189.) His application "should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18." (Ibid.)
III. DISPOSITION
The order denying the application for redesignation is affirmed, without prejudice to consideration of a renewed application for redesignation providing evidence of defendant's eligibility for relief under Penal Code section 1170.18.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.