Opinion
E063632
05-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ISAAC JERRY YOUNG, Defendant and Appellant.
Gerald J. Miller, 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, Barry Carlton, Sabrina Y. Lane-Erwin and Robin Urbanski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF028989) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Gerald J. Miller, 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, Barry Carlton, Sabrina Y. Lane-Erwin and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Isaac Jerry Young appeals from the trial court's order denying his petition for recall of sentence under Penal Code section 1170.18. We affirm the order without prejudice to filing a new petition pursuant to People v. Page (2017) 3 Cal.5th 1175 (Page).
Section references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURE
On June 18, 2009, the People filed a complaint charging defendant in count 1 with kidnaping (§ 207, subd. (a)), in count 2 with carjacking (§ 215, subd. (a)), in count 3 with criminal threats (§ 422), and in counts 4 and 5 with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) with a previous conviction for the same offense (§ 666.5, subd. (a)). The People alleged defendant personally used a deadly weapon, a screwdriver, during the commission of the kidnaping and the carjacking, and that he violated his probationary terms in four separate cases.
Count 4 involved a 1995 Buick Le Sabre.
Count 5 involved a 1995 Chevrolet Suburban. --------
On July 22, 2009, defendant pled guilty to the carjacking in count 2 and unlawfully driving or taking a vehicle with a prior conviction in count 4. Defendant also admitted the personal weapon use enhancement to the carjacking count. The minute order for that date indicates that "Counsel Stipulate: vehicle in Ct. 2 not same as vehicle in Ct. 4."
On August 24, 2009, the court sentenced defendant as agreed to seven years as follows: the middle term of five years for the carjacking, plus one year consecutive for the weapon enhancement, plus one year consecutive for driving or taking a vehicle.
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 "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 December 15, 2014, defendant filed a petition for resentencing under Proposition 47. On April 30, 2015, the court denied the petition on the basis that defendant's felonies were not qualifying felonies.
This appeal followed.
Following this court's May 12, 2016 opinion in this case affirming the court's order, defendant petitioned for review by the Supreme Court, which issued a "grant and hold" order deferring further briefing pending its decision in Page (case No. S235134, review granted July 20, 2016). 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 in light of Page. On March 22, 2018, this court vacated its opinion and invited supplemental briefing, which the parties have provided.
DISCUSSION
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 with prior vehicle theft convictions (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)), 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 or Reverse and Remand?
Defendant argues this court should reverse the trial court's denial of his motion and permit him to present evidence regarding the value of the stolen vehicle. The People counter that we should affirm the court's order without prejudice to the court considering a subsequent petition for Proposition 47 relief. 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 1995 Buick Le Sabre and that the vehicle was worth $950 or less. Under Page, therefore, the court properly denied the petition. (Id. at p. 1189.) However, also under Page and the authorities it cites, defendant is entitled to file a new petition that meets the statutory requirements as fleshed out in the courts subsequent to the enactment of Proposition 47. (Ibid.)
DISPOSITION
The court's order denying the petition is affirmed without prejudice to the court subsequently considering 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 (2016) 244 Cal.App.4th 129, 139-140; People v. Sherow (2015) 239 Cal.App.4th 875, 881.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON
J.