Opinion
B267657
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. LAVANCE MCNAIR, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Marcy Sanchez and Andrews S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA083700) APPEAL from an order of the Superior Court of Los Angeles County. James Otto, Judge. Affirmed. Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Marcy Sanchez and Andrews S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant LaVance McNair (defendant) appealed from the trial court's denial of his petition for resentencing under Proposition 47, and we affirmed the order. Defendant sought review in the California Supreme Court, which transferred the matter back to this court for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175 (Page). Upon reconsideration, we again affirm the order denying defendant's petition, but do so without prejudice to consideration of a new petition providing evidence of defendant's eligibility.
BACKGROUND
We summarize the relevant facts and procedure set forth in the opinions issued after defendant's prior appeals in this case. (See People v. McNair (B227076, Sept. 29, 2011[nonpub. opn.] (McNair I); People v. McNair (B238976, May 8, 2013) [nonpub. opn.] (McNair II).)
In 2010 defendant was convicted of two felonies arising from a single incident during a sting operation in which defendant drove an unmarked 2000 Toyota Camry belonging to the Sheriff's Department. Count 1 alleged a violation of Vehicle Code section 10851, subdivision (a), unlawfully driving or taking the car. Count 2 alleged the same unlawful driving or taking the car as a violation of Penal Code section 666.5, due to a prior conviction of a violation of Vehicle Code section 10851. We affirmed the convictions in McNair I, but vacated the sentence and remanded for resentencing. Defendant appealed after resentencing, challenging the trial court's refusal to sentence him under the Criminal Justice Realignment Act of 2011 (Act). We affirmed the judgment in McNair II.
Thereafter, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (See Pen. Code, § 1170.18.) In January 2015, defendant filed a petition for resentencing under Proposition 47. The trial court summarily denied defendant's petition on the ground that his offenses were ineligible. Defendant appealed, and we affirmed the trial court order. Defendant sought review in the California Supreme Court, and in an order filed March 21, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page.
In full, Penal Code section 1170.18, subdivision (a) provides: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."
DISCUSSION
Among other things Proposition 47 added Penal Code section 490.2, which provides that "obtaining any property by theft" is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. In Page, the Supreme Court resolved a conflict among several courts of appeal regarding whether felony violations of Vehicle Code section 10851 were eligible for resentencing under Proposition 47. Rejecting the view that a section 10851 conviction was categorically ineligible for resentencing under Proposition 47, the court concluded "that obtaining an automobile worth $950 or less by theft constitutes petty theft under [Penal Code] section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged. A defendant who, at the time of Proposition 47's passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is therefore eligible for resentencing under section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, supra, 3 Cal.5th at pp. 1180, 1187 & fn. 6.)
All further undesignated statutory references are to the Penal Code. --------
The court pointed out, however, that Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle and by unlawfully driving the vehicle without the intent to steal it, a non-theft offense. (Page, supra, 3 Cal.5th at pp. 1180, 1182-1183.) Only those defendants "serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft -- taking a vehicle with the intent to permanently deprive the owner of possession -- could (if the vehicle was worth $950 or less) receive only misdemeanor punishment pursuant to section 490.2 and [are] thus eligible for resentencing under section 1170.18." (Page, at p. 1184; see also People v. Van Orden (2017) 9 Cal.App.5th 1277, 1286-1288, review dismissed, Mar. 15, 2018 (S241574).) Thus, a defendant seeking resentencing bears the burden of showing that (1) his conviction was based upon his theft of a vehicle, and (2) the vehicle was worth $950 or less. (Page, at p. 1184.) The evidence will ordinarily come from the record of conviction, such as trial testimony or the factual basis for a negotiated plea. (Id. at p. 1189.) In Page, as in this case, "[d]efendant's petition included no allegations, testimony, or record references to show either" requirement; however, the court held there that "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. Such a petition should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18. [Citations.]" (Id. at p. 1189.)
Respondent agrees that defendant should be permitted the same opportunity. However, respondent contends that defendant's conviction under section 666.5 remains ineligible for Proposition 47 relief. Respondent argues that as a recidivist statute, section 666.5 requires imposition of felony punishment for repeat offenders. In so arguing, respondent recognizes that section 666.5 provides punishment for the current offense. However, under the plain language of the statute, both the prior conviction and the current offense to which the punishment attaches must be felonies. Section 666.5 subdivision (a) reads in relevant part: "Every person who, having been previously convicted of a felony violation of Section 10851 of the Vehicle Code [or other enumerated felonies], is subsequently convicted of any of these offenses shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the fine and the imprisonment." (Italics added.) Here, although the section 666.5 punishment provision was charged as a separate count, defendant was convicted of a single taking or driving of a 2000 Toyota Camry belonging to the Sheriff's Department. If that offense is ultimately reduced to a misdemeanor, there will be no underlying felony to justify imposition of the felony punishment set forth in section 666.5.
Respondent acknowledges that two appellate decisions have held that section 666.5 does not define a separate offense. (See e.g., People v. Lee (2017) 16 Cal.App.5th 861 (Lee); People v. Ortiz (2016) 243 Cal.App.4th 854 (Ortiz), review dismissed, Feb. 28, 2018 (S232344).) In Ortiz, the appellate court rejected an argument by the Attorney General that Proposition 47 did not apply to section 666.5, under which the defendant had been punished as a repeat offender. (Ortiz, supra, 243 Cal.App.4th at p. 861.) The court explained: "[A] defendant previously convicted of a felony violation of Section 10851 is subject to an enhanced penalty if the current offense is also a felony violation of Section 10851. Proposition 47 says nothing about Penal Code section 666.5. But Penal Code section 666.5 creates a sentence enhancement only where the current offense is also a felony violation. Section 490.2, by reducing petty theft of a vehicle to a misdemeanor, removes such misdemeanants from the ambit of Penal Code section 666.5." (Ibid.)
Although the question in Lee did not involve Proposition 47, the reasoning expressed there is equally persuasive: "[T]he plain language of section 666.5 itself convinces us that section 666.5 applies only to a felony conviction. Furthermore, a section 666.5 allegation, even if admitted or found true, does not 'felonize' a wobbler by converting it into a straight felony. Therefore, a section 666.5 allegation does not affect the trial court's authority to reduce a wobbler to a misdemeanor at sentencing. If the court chooses to reduce the wobbler to a misdemeanor, the section 666.5 allegation is inapplicable." (Lee, supra, 16 Cal.App.5th at pp. 873-874.)
Respondent nevertheless argues that section 666.5 remains ineligible, because the California Supreme Court did not address the issue in Page. "It is axiomatic that cases are not authority for propositions not considered. [Citations.]" (People v. Casper (2004) 33 Cal.4th 38, 43.) The more reasonable inference is that the issue did not arise in Page, because the language of the statute clearly makes the punishment of section 666.5 inapplicable to misdemeanors or offenses reduced to misdemeanors. Whether it continues to apply here thus depends upon the eventual outcome of any new petition.
DISPOSITION
The trial court's order denying defendant's petition is affirmed without prejudice to consideration of a new petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT