Opinion
E064513
05-09-2018
THE PEOPLE, Plaintiff and Respondent, v. LATOI PATRICE WALKER, Defendant and Appellant.
Eric S. Multhaup, 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, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI08775) OPINION APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Affirmed. Eric S. Multhaup, 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, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On November 4, 2014, the voters approved Proposition 47, The Safe Neighborhoods and Schools Act (Proposition 47); it went into effect the following day. Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It added and amended sections of the Penal Code. Penal Code section 1170.18 was added and provides that a person currently serving a sentence for a felony conviction, whether by trial or plea, who would have been guilty only of a misdemeanor had Proposition 47 been in effect at the time the plea was entered, or at the time of trial, may petition for a recall of the sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing.
On February 23, 1999, prior to the passage of Proposition 47, defendant and appellant Latoi Patrice Walker entered a guilty plea to unlawfully driving or taking a vehicle, a 1985 Nissan Sentra, without the owner's permission under Vehicle Code section 10851, subdivision (a). In exchange for the plea, defendant received a stipulated sentence of 16 months in state prison.
On July 29, 2015, defendant filed a petition to recall his sentence (Petition) stating that his felony conviction should be reduced to a misdemeanor. On August 4, 2015, the trial court denied the petition on the ground that Vehicle Code section 10851 subdivision (a), was not eligible for resentencing under Proposition 47.
In a previous nonpublished opinion, we affirmed the trial court's denial of defendant's Petition pursuant to Proposition 47. (People v. Walker (Aug. 3, 2016, E064513) [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Cal.5th 1175 (Page). For the reasons set forth below, we affirm the trial court's denial of defendant's Petition without prejudice to consideration of a subsequent petition providing evidence of defendant's eligibility.
DISCUSSION
Defendant claims that Penal Code section 1170.18 should be interpreted to include Vehicle Code section 10851 as a felony that can be reduced to a misdemeanor violation of Penal Code section 490.2. We affirm the denial of defendant's Petition because he failed to meet his burden of alleging facts that he was eligible for resentencing under Penal Code section 490.2.
Vehicle Code section 10851 provides, "Any 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, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment." This section " 'proscribes a wide range of conduct [and may be violated] either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' " (People v. Garza (2005) 35 Cal.4th 866, 876.) --------
"The voters approved Proposition 47 at the November 4, 2014 general election, and it became effective the next day." (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.) "Proposition 47 'was intended to reduce penalties "for certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors." ' " (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) " 'In interpreting a voter initiative . . . we apply the same principles that govern statutory construction. [Citation.] Thus, "we turn first to the language of the statute, giving the words their ordinary meaning." [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, "we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.] In other words, 'our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.' " (People v. Briceno (2004) 34 Cal.4th 451, 459.)
Proposition 47 added Penal Code section 1170.18 to the Penal Code. Subdivision (a) of Penal Code section 1170.18, provides in pertinent part, "A person currently 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." Under Penal Code section 1170.18, subdivision (b), the trial court first determines whether the petition has presented a prima facie case for relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a), then he will be resentenced to a misdemeanor, unless the court, within its discretion, determines the petitioner would pose an unreasonable risk to public safety. (Pen. Code, § 1170.18, subd. (b).)
Section 490.2 was added to the Penal Code. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part, "Notwithstanding [Penal Code s]ection 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." Penal Code section 487, subdivision (a), provides that if the value of the money, labor, real or personal property taken exceeds $950, the offense is a felony. Penal Code section 487, subdivision (d)(1), provides that grand theft occurs if the property is an automobile, regardless of the value.
Penal Code section 1170.18 clearly states that a defendant must show that he was convicted of a felony but would have been convicted of a misdemeanor if Proposition 47 had been in effect at the time of the offense. For an offense under Penal Code section 490.2, which was added to the Penal Code, defendant had to allege facts that he would have been guilty of a misdemeanor violation of Penal Code section 490.2 rather than the felony conviction.
In Page, the California Supreme Court held that Vehicle Code section 10851 convictions "are not categorically ineligible for resentencing" under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) The defendant seeking resentencing bears the burden of establishing his or her eligibility by showing that the vehicle was worth $950 or less and the conviction "was based on theft of the vehicle rather than a posttheft driving [citation] or on taking without the intent to permanently deprive the owner of possession." (Id. at p. 1188, fn. omitted.) The petition at issue in Page "included no allegations, testimony, or record references to show either that the defendant's Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less." (Id. at p. 1189.) On that basis, the Supreme Court found that the defendant's petition was properly denied, but that he was "entitled to an opportunity to file a new petition meeting the statutory requirements." (Ibid.)
Here, defendant had the initial burden of proving that he would have been charged and found guilty of only a violation of Penal Code section 490.2 because the value of the vehicle he took was less than $950. Defendant failed to meet this burden. The record of conviction does not establish this fact, as he entered a guilty plea. Additionally, defendant never stated in the Petition that the 1985 Nissan Sentra was valued at less than $950. In the Petition, defendant simply stated he was requesting that his felony violation under Vehicle Code section 10851, subdivision (a), be designated as a misdemeanor under Penal Code section 1170.18. Defendant never alleged facts sufficient for the trial court to determine that he should have been convicted of a misdemeanor violation of Penal Code section 490.2. The Petition was properly denied because defendant failed to establish that he was eligible for resentencing pursuant to Penal Code section 1170.18, subdivision (a). (See Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1163, fn. 3 ["A party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting"].) Therefore, like the defendant in Page, defendant's Petition was properly denied, but he is entitled to an opportunity to file a new petition meeting the statutory requirements.
DISPOSITION
The trial court's order denying defendant's petition is affirmed without prejudice. Nothing in this decision or in Penal Code section 1170.18 forecloses defendant's ability to file a new petition alleging sufficient facts to support his claim that his conviction would have been a violation of Penal Code section 490.2.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. I concur: McKINSTER
Acting P. J.
Slough, J., Dissenting.
I respectfully disagree with the majority's disposition of this case. Since our original opinion affirming the trial court, the Supreme Court has held a defendant convicted of violating Vehicle Code section 10851, subdivision (a) (Section 10851) who establishes he was convicted of taking a vehicle valued at $950 or less is eligible for resentencing under Penal Code section 490.2, subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1189 (Page).) The majority's new opinion conforms to that holding, but nevertheless affirms the trial court order denying the petition because Walker did not attach evidence to his petition to establish he took the vehicle (as opposed to merely driving it) and that it was valued at less than $950. Given the record we have on appeal, I do not believe that is an appropriate way to resolve this case.
I believe it is a mistake to reflexively reject petitions as deficient. The trial court has discretion to allow a petitioner who has not provided enough information to amend the petition or submit additional evidence, to resolve a petition by looking to court records to determine eligibility, and to order a hearing. (People v. Abarca (2016) 2 Cal.App.5th 475, 480 [holding the trial courts have discretion to grant or deny a Proposition 47 petition based on a review of the evidence in its file]; People v. Fedalizo (2016) 246 Cal.App.4th 98, 108 ["[T]rial courts have substantial flexibility to devise practical procedures to implement Proposition 47, so long as those procedures are consistent with the proposition and any applicable statutory or constitutional requirements"].) Because the trial court ruled Walker's conviction was categorically ineligible, it had no reason to reach the issues of value and whether the conviction was for theft.
In general, courts must be liberal in allowing amendments, permitting amendment whenever it is reasonably possible a party can cure a pleading insufficiency. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 [failure to grant leave to amend complaint where there is a reasonable possibility the plaintiff can cure the defect is an abuse of discretion]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028; see also 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 242, p. 501; People v. Duvall (1995) 9 Cal.4th 464, 482 [habeas petitions].) I see no reason to employ a different standard in handling Proposition 47 petitions.
Here, if the trial court had reached the point of exercising its discretion, there was sufficient information in the record for it to conclude it was reasonably possible Walker could successfully amend his petition. Walker was convicted of a count of taking or driving a 1985 Nissan Sentra in 1999. According to the abstract of judgment, the conviction was for taking the vehicle. In the face of such a record, it is not appropriate to affirm the trial court's denial of the petition on the alternative basis that Walker's petition is unsupported. This is not a case, like Page, where there is no information concerning the basis for the Section 10851 conviction. (Page, supra, 3 Cal.5th at p. 1180.) Here, had the trial court not erroneously ruled he was ineligible as a matter of law, faced with the facts in this record, the court should have either allowed Walker to cure any deficiency by amending his petition and attaching evidence or skipped that formality and set a hearing to review the record of conviction and take additional evidence. (People v. Huerta (2016) 3 Cal.App.5th 539, 543-544.)
Though the majority now allows Walker to file a new petition, I do not view this as an equivalent remedy. After Page, it is clear Section 10851 cases may fall under Proposition 47. There is sufficient information in the record before us to establish Walker's may be such a case. Since the trial court erred in its summary denial, I believe we should place the burden on the trial court to correct it, not on Walker to start the process anew. In addition, as this Court has noted, there is reason for concern that insisting Walker file a new petition may have unanticipated negative consequences related to res judicata, the finality of judgments, and limitations on the timing of petitions. (People v. Sweeney (2016) 4 Cal.App.5th 295, 303.)
Accordingly, I would reverse the trial court's order denying Walker's petition and remand for further proceedings. On remand, I would allow the trial court to exercise its discretion whether to require amendment of the petition or allow the parties to supplement the evidentiary record at a hearing to assist the court in making the factual findings necessary to determine whether petitioner is eligible for resentencing under Page.
SLOUGH
J.