Opinion
E064118
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WAYNE PULS, Defendant and Appellant.
Jennifer Peabody, 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, and Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
[NO CHANGE IN JUDGMENT]
The petition for rehearing is denied. The opinion filed in this matter on April 26, 2018, is modified as follows:
1. On page 7, the first sentence of the second full paragraph reading: "Although the parties were directed to limit their supplemental briefs to matters arising after our previous opinion (Cal. Rules of Court, rule 8.200(b)(2)), in their supplemental brief, filed after defendant's supplemental brief, the People raised an issue outside the permitted scope of the supplemental briefing[]" shall be deleted.
2. On page 7, footnote 4 shall be deleted. This change will necessitate renumbering the remaining footnotes.
3. On page 7, the last sentence reading, "We invited defendant to file a letter brief responding to the People's new claim, and defendant has filed that letter brief[]" shall be deleted and replaced with the following sentence: We invited defendant to file a letter brief responding to this claim, and defendant has filed that letter brief.
Except for these modifications, the opinion remains unchanged. These modifications do not change the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI021475, FVI901984) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed in part and reversed in part with directions. Jennifer Peabody, 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, and Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In 2005, defendant and appellant, Robert Wayne Puls, pled guilty in case No. FVI021475 to one felony count of unlawfully taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).) In a previous opinion in this appeal, we affirmed the trial court's order denying defendant's Proposition 47 petition to reclassify his 2005 Vehicle Code conviction as a misdemeanor. (People v. Puls (June 7, 2016, E064118) [nonpub. opn.].) We held that such convictions are ineligible to be reclassified as misdemeanors under Proposition 47, regardless of whether such convictions were theft-based and involved vehicles worth $950 or less. (Id. [at pp. 6-10].)
Our Supreme Court granted review and subsequently transferred the matter back to this court with directions to reconsider our previous opinion in light of People v. Page (2017) 3 Cal.5th 1175 (Page) (theft-based Veh. Code, § 10851, subd. (a) convictions involving vehicles worth $950 or less are eligible to be reclassified as misdemeanors under Pen. Code, §§ 490.2, 1170.18). In light of Page, defendant argues the matter must be remanded to the trial court to determine whether his Vehicle Code conviction was theft-based and, if so, whether the value of the vehicle in question was $950 or less.
All further statutory references are to the Penal Code unless otherwise indicated.
The People counter that the order denying defendant's Proposition 47 petition in case No. FVI021475 must be affirmed on the ground defendant has a disqualifying prior conviction, namely, a 2008 conviction for vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (b).) The People argue defendant's vehicular manslaughter conviction is a disqualifying prior conviction, which renders defendant ineligible to have his 2005 Vehicle Code conviction reclassified as a misdemeanor, even if defendant's 2005 Vehicle Code conviction was theft-based and involved a vehicle worth $950 or less. (Pen. Code, §§ 1170.18, subd. (i), 667, subd. (e)(2)(C)(iv).)
In response, defendant argues, and we agree, that the matter must be remanded to the trial court to determine whether the record of defendant's conviction for vehicular manslaughter while intoxicated, in case No. FVI801098, shows that the conviction is a serious or violent felony. (Pen. Code, §§ 667, subds. (d), (e)(2)(C)(iv), 667.5, subd. (c) [listing violent felonies], 1192.7, subd. (c) [listing serious felonies].) If so, defendant is ineligible to have his Vehicle Code conviction reclassified as a misdemeanor. (Pen. Code, § 1170.18, subd. (i).) If not, the trial court must determine whether defendant's Vehicle Code conviction was theft based and involved a vehicle worth $950 or less.
As we did in our previous opinion, we affirm the trial court's unchallenged order in case No. FVI901984, denying defendant's Proposition 47 petition to have his 2009 burglary conviction reclassified as a misdemeanor. Though defendant appealed from the order denying his Proposition 47 petition in case No. FVI901984, he has not argued in this appeal that his petition was erroneously denied. Further, the record shows that defendant's 2009 burglary conviction involved defendant's entry into vacant house, not a commercial establishment. For this reason, the 2009 burglary conviction is ineligible to be reduced to a misdemeanor. (§§ 459.5, 1170.18.)
II. BACKGROUND
On May 12, 2005, the People filed a felony complaint in case No. FVI021475, charging defendant with the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1) and grand theft of the same vehicle (Pen. Code, § 487, subd. (d)(1), count 2). The crimes allegedly occurred on or about April 9, 2005, and the vehicle in question was a white 1999 Ford F-150 truck. The complaint further alleged defendant had three prison priors (Pen. Code, § 667.5, subd. (b)) and two prior convictions for violating Vehicle Code section 10851, subdivision (a) (Pen. Code, § 666.5).
On August 1, 2005, defendant entered into a plea agreement in case No. FVI021475: He pled guilty to the Vehicle Code section 10851 and grand theft charges, and admitted one of the Penal Code section 666.5 allegations. In exchange, the prison prior allegations were dismissed and defendant was sentenced to three years in prison on his 2005 Vehicle Code section 10851 conviction.
Pursuant to the same plea agreement, defendant pled guilty in case No. FVI021680 to possessing a dangerous weapon, namely, metal knuckles (Pen. Code, § 12020), and was sentenced to 16 months in prison, concurrent to the three-year term imposed on his Vehicle Code section 10851 conviction in case No. FVI021475. Additional charges and allegations in case No. FVI021680, and in other cases, were also dismissed.
On September 10, 2009, the People filed a felony complaint in case No. FVI901984, charging defendant with one count of second degree burglary (§ 459) based on his entry into "a vacant residence with the intent to commit larceny and any felony." It was further alleged in case No. FVI901984 that defendant had seven prison priors (§ 667.5, subd. (b)), including a prison prior based on a June 23, 2008, conviction in case No. FVI801098 for vehicular manslaughter while intoxicated (§ 191.5, subd. (b)).
On October 28, 2009, defendant entered into a plea agreement in case No. FVI901984: He pled guilty to the second degree burglary charge (§ 459) and admitted a prison prior based on his 2008 conviction for vehicular manslaughter while intoxicated (§ 191.5, subd. (b)). Defendant was sentenced to three years in prison: Two years for the 2009 burglary conviction plus one year for the prison prior based on the 2008 vehicular manslaughter conviction.
On April 21, 2015, defendant filed a Proposition 47 petition in case No. FVI021475, seeking to reclassify his 2005 felony conviction for violating Vehicle Code section 10851, subdivision (a) as a misdemeanor. (Pen. Code, § 1170.18, subds. (f), (g).) The petition did not allege the conviction was theft-based—that is, based on defendant's unlawful taking as opposed to his unlawful driving of a vehicle—nor did the petition allege the value of the vehicle in question. The People filed a response opposing the petition, stating defendant was "not entitled to the relief requested" because Vehicle Code section 10851 "is not affected by Prop. 47."
On April 15, 2015, defendant filed a Proposition 47 petition in case No. FVI901984, seeking to reclassify his 2009 burglary conviction (§ 459) as a misdemeanor. The People filed a response opposing this petition, stating defendant was not entitled to the relief requested because the "PC 459 is of a vacant house." The court set simultaneous hearings on both petitions. At a June 26, 2015, hearing, the court did not receive any evidence or argument and denied each petition on the ground "[n]either [conviction] qualifies under Prop 47."
On October 21, 2015, while this appeal was pending, defendant filed a second petition to reduce his 2005 Vehicle Code section 10851 conviction to a misdemeanor. On November 2, 2015, the court denied the petition, and on November 13, 2015, defendant filed a notice of appeal from that order. Because the order denying defendant's April 21, 2015, petition was on appeal when defendant filed the second petition, the court did not have jurisdiction to rule on the second petition. (See People v. Scarbrough (2015) 240 Cal.App.4th 916, 929-930 [court lacks jurisdiction to recall the defendant's sentence and resentence the defendant pursuant to Pen. Code, § 1170.18 while the defendant's conviction is on appeal].)
Defendant appealed the orders denying his Proposition 47 petitions in case Nos. FVI021475 and FVI901984, and both appeals were assigned case No. E064118. In his original opening brief on appeal, defendant did not challenge the order in case No. FVI901984 denying his petition to reclassify his 2009 burglary conviction as a misdemeanor. Instead, he argued only that the trial court erroneously denied his petition in case No. FVI021475 to reclassify his Vehicle Code section 10851, subdivision (a) conviction as a misdemeanor theft conviction. (Pen. Code, §§ 490.2, 1170.18, subds. (f), (g).)
In our previous opinion, we affirmed the order in case No. FVI901984 without discussion. We also affirmed the order in case No. FVI021475 on the ground Proposition 47 did not apply to Vehicle Code section 10851, subdivision (a) convictions. (People v. Puls, supra, E064118 [at pp. 6-10].) Following the Supreme Court's grant of review and its subsequent order transferring the case back to this court to reconsider the cause in light of Page, supra, 3 Cal.5th 1775, we vacated our previous opinion and allowed the parties to file supplemental briefs. (Cal. Rules of Court, rule 8.200(b)(1).)
Defendant filed a supplemental brief arguing that the order denying his petition in case No. FVI021475 must be reversed and the cause must be remanded to the trial court to determine whether his Vehicle Code conviction was theft-based and involved a vehicle worth $950 or less. If the answer to these questions is yes, defendant argues, the trial court must grant his petition and reclassify his Vehicle Code conviction as a misdemeanor theft conviction. (Pen. Code, §§ 490.2, 1170.18, subds. (f), (g); Page, supra, 3 Cal.5th at p. 1183.)
Although the parties were directed to limit their supplemental briefs to matters arising after our previous opinion (Cal. Rules of Court, rule 8.200(b)(2)), in their supplemental brief, filed after defendant's supplemental brief, the People raised an issue outside the permitted scope of the supplemental briefing. The People claim defendant is ineligible to have his Vehicle Code conviction reclassified as misdemeanor theft (Pen. Code, § 490.2), because the record shows he has a disqualifying prior conviction for vehicular manslaughter while intoxicated (Pen. Code, §§ 191.5, subd. (b)), 1170.18, subd. (i), 667, subd. (e)(2)(C)(iv)). We invited defendant to file a letter brief responding to the People's new claim, and defendant has filed that letter brief. (Cal. Rules of Court, rule 8.200(b)(2) [following remand or transfer from the Supreme Court, presiding justice of the Court of Appeal may allow supplemental briefing on matters arising before Court of Appeal's previous decision].)
The People did not raise this issue in their responsive pleading in the trial court, at the hearings on defendant's petitions, or in their respondent's brief on appeal.
III. DISCUSSION
On November 4, 2014, California voters approved Proposition 47 (the Act), and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
As pertinent, Proposition 47 added sections 490.2 and 1170.18 to the Penal Code. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 490.2 provides as follows: "(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 . . . ."
Under section 1170.18, subdivision (f), a person who has completed his or her sentence for a felony conviction that would have been a misdemeanor under the Act, had the Act been in effect at the time the felony was committed, may petition the trial court that entered the judgment of conviction to redesignate the conviction as a misdemeanor. Section 1170.18, subdivision (g) provides that, if a petition satisfies the criteria of section 1170.18, subdivision (f), the court "shall" designate the felony offense or offenses as misdemeanors. (§ 1170.18, subd. (g).)
Section 1170.18, subdivision (f), states: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
In Page, the Supreme Court held that a felony conviction for violating Vehicle Code section 10851, subdivision (a), which is based on the theft of a vehicle—that is, the taking of a vehicle with the intent to permanently deprive the owner of its possession, rather than on driving a vehicle without the owner's consent—may be reclassified as a misdemeanor theft conviction under Penal Code sections 490.2 and 1170.18, if the value of the vehicle was $950 or less. (Page, supra, 3 Cal.5th at pp. 1182-1183.) The Page court reasoned that Penal Code section 490.2, subdivision (a) "mandates misdemeanor punishment for a defendant who 'obtain[ed] any property by theft' where the property is worth no more than $950." (Page, supra, at p. 1183.)
As noted, in light of Page, defendant argues in his supplemental brief that the cause must be remanded to the trial court with directions to determine whether his 2005 conviction for violating Vehicle Code section 10851, subdivision (a) was theft-based and involved a vehicle worth $950 or less. If the answer to these questions is yes, defendant argues, the trial court must grant his petition in case No. FVI901984, and reclassify his felony Vehicle Code conviction as a misdemeanor theft conviction. (Pen. Code, §§ 490.2, 1170.18, subds. (f), (g); Page, supra, 3 Cal.5th at p. 1183.) The People counter that defendant's 2008 vehicular manslaughter conviction renders him ineligible to have his Vehicle Code conviction reclassified as a misdemeanor, regardless of whether the conviction was theft-based and involved a vehicle worth $950 or less.
As the People point out, section 1170.18 "does not apply" to any person who has a prior conviction for a "super strike" offense—a conviction specified in section 667, subdivision (e)(2)(C)(iv) and occurring before the trial court ruled on the person's Proposition 47 petition. (§ 1170.18, subd. (i); People v. Casillas (2017) 13 Cal.App.5th 745, 750-751.) Such persons are "disqualified" from eligibility for Proposition 47 relief. (People v. Casillas, supra, at p. 751.) Disqualifying "super strike" convictions include convictions for "[a]ny homicide offense . . . defined in Sections 187 to 191.5, inclusive." (Pen. Code, § 667, subd. (e)(2)(C)(iv)(IV).) The record on appeal shows that, on June 23, 2008, in case No. FVI801098, defendant was convicted of vehicular manslaughter while intoxicated, a homicide offense. (§§ 191.5, subd. (b), 667, subd. (e)(2)(C)(iv)(IV).)
Pursuant to his plea agreement in case No. FVI901984, defendant admitted a prison prior enhancement (§ 667.5, subd. (b)), based on his June 23, 2008, conviction. In submitting his plea to the court, defendant expressly admitted the fact of his prior conviction for vehicular manslaughter while intoxicated. (§ 191.5, subd. (b); see People v. Carrasco (2012) 209 Cal.App.4th 715, 724-725 [prison prior enhancements properly imposed where record showed the defendant admitted all elements of the prison priors, including fact of the prior convictions].)
But as defendant points out, although vehicular manslaughter while intoxicated is a homicide offense, it is not a disqualifying "super strike" unless it constitutes a serious or violent felony within the meaning of section 667, subdivision (d). Section 667, subdivision (e)(2)(C)(iv) requires the defendant to have "suffered a prior serious and/or felony conviction, as defined in subdivision (d) of this section . . . ." Section 667, subdivision (d) defines a serious and/or violent felony as any offense defined as a violent felony in section 667.5, or as any offense defined as a serious felony in section 1192.7, subdivision (c). As defendant also points out, vehicular manslaughter while intoxicated (§ 191.5, subd. (b)) is not listed as a serious or violent felony in these sections.
As defendant concedes, however, his vehicular-manslaughter-while-intoxicated conviction constitutes a serious felony if the record of the conviction in case No. FVI801098 shows, for example, that it involved defendant's personal infliction of great bodily injury on any person other than an accomplice. (§ 1192.7, subd. (c)(8); see People v. Wilson (2013) 219 Cal.App.4th 500, 511-513.) The record on appeal does not include the record of defendant's conviction in case No. FVI801098. Nor does the record on appeal indicate that defendant's conviction for vehicular manslaughter while intoxicated involved defendant's infliction of great bodily injury on any person other than an accomplice. Thus, as defendant argues, it is unclear whether his section 191.5, subdivision (b) conviction is a serious or violent felony within the meaning of section 667, subdivisions (d) and (e)(2)(C)(iv).
Accordingly, the matter must be remanded to the trial court to determine whether the record of defendant's 2008 conviction for vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b)), in case No. FVI801098, shows the conviction is a serious or violent felony, within the meaning of Penal Code section 667.5, subdivision (c) (violent felonies) or 1192.7, subdivision (c) (serious felonies). If not, the trial court must determine whether defendant's 2005 Vehicle Code conviction in case No. FVI021475 was theft-based and involved a vehicle worth $950 or less. If so, the trial court must grant defendant's Proposition 47 petition in case No. FVI021475 and reclassify his 2005 Vehicle Code conviction as a misdemeanor theft conviction. (Pen. Code, §§ 490.2, 1170.18, subds. (f), (g).)
IV. DISPOSITION
The order denying defendant's Proposition 47 petition in case No. FVI901984 is affirmed. The matter is remanded to the trial court with directions to determine whether defendant's Proposition 47 petition in case No. FVI021475 must be granted or denied in accordance with the analysis expressed in this opinion. That is, the trial court is directed to determine whether the record of defendant's 2008 conviction for vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b)), in case No. FVI801098, shows the conviction is a serious or violent felony within the meaning of Penal Code section 667.5, subdivision (c) (violent felonies) or 1192.7, subdivision (c) (serious felonies). If not, the trial court must determine whether defendant's 2005 Vehicle Code conviction in case No. FVI021475 was theft-based and involved a vehicle worth $950 or less. If so, the trial court must grant defendant's Proposition 47 petition in case No. FVI021475 and reclassify his 2005 Vehicle Code conviction as a misdemeanor theft conviction. (Pen. Code, §§ 490.2, 1170.18, subds. (f), (g).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.