People v. GomezPeople v. Gomez
Prior to the passage of Proposition 47, defendant entered a guilty plea to a felony violation of Vehicle Code section 10851 for unlawfully driving and taking a 2002 Chevy Suburban. Defendant filed a petition to recall his sentence (Petition) arguing that his conviction for violating Vehicle Code section 10851 should be reduced to a misdemeanor violation of petty theft under Penal Code section 490.2. The trial court denied the petition on the ground that all Vehicle Code section 10851 convictions are not eligible for resentencing under Proposition 47.
Defendant now claims on appeal as follows: (1) Penal Code section 1170.18 should be broadly interpreted to include violations of Vehicle Code section 10851 ; (2) the trial court should have provided the parties an opportunity to litigate the value of the loss to the victim prior to ruling on his Petition to determine if the offense committed was petty theft (loss to the victim was less than $950) within the meaning of Penal Code section 490.2 ; (3) the People had the burden of proving at the hearing on the Petition that the value of the vehicle taken exceeded $950; (4) the valuation of the loss for a temporary taking of an automobile should be that amount of compensation to make the victim whole, not the market value of the automobile; and (5) equal protection requires that offenses under Vehicle Code section 10851 be treated like
FACTUAL AND PROCEDURAL HISTORY
On July 8, 2014, a felony complaint was filed against defendant in San Bernardino County case No. FSB1402290, charging him with the unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a). Specifically, he was charged with taking a 2002 Chevy Suburban from Rotolo Chevrolet without the consent of and with the intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle. It was also alleged that he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On July 9, 2014, defendant entered a plea of guilty to one count of violating Vehicle Code section 10851.
On July 9, 2014, defendant was sentenced pursuant to the plea agreement to two years, and the trial court recommended that his sentence be served at a fire camp. The prior prison term allegations were struck by the People. This sentence was ordered to run concurrent to the four-year sentence in case No. FSB1205624.
On November 19, 2014, defendant filed his Petition. His Petition sought to have both his conviction of violating Health and Safety Code section 11370.1, subdivision (a), and his conviction of violating Vehicle Code section 10851, reduced to misdemeanors pursuant to Proposition 47. He stated that both offenses qualified as misdemeanors, but provided none of the facts pertaining to the underlying offenses. Defendant claimed, "Gabriel Gomez Jr. was charged with theft of property under $950. Gabriel Gomez Jr.'s grand theft charge became a felony because of defendant's criminal history (specifically
On December 12, 2014, defendant's Petition was called for a hearing along with several other cases involving petitions filed pursuant to Penal Code section 1170.18. Defendant was represented by a deputy public defender. The trial court noted it had read all of the petitions. The trial court ruled as to several cases, including defendant's case, without hearing any argument, as follows: "Then in the following cases, the defendant's convicted charge does not qualify for relief under Prop. 47 or Penal Code Section 1170.18, so the petition to reduce the conviction to a misdemeanor and petition for resentencing is denied as to each of the following cases-the previously imposed sentences remain in effect. [¶] ... [¶] ... Numbers 86 and 87, Gabriel Gomez."
DISCUSSION
A. RESENTENCING PURSUANT TO PENAL CODE SECTION 1170.18
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. He also insists that the trial court should have held a hearing on the value of the vehicle he stole, and at that hearing, it was the People's burden to prove that the value of the vehicle he stole was greater than $950. Specifically, defendant claims that although Vehicle Code section 10851
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. (
Penal Code section 490.2 was added to the Penal Code. (People v. Rivera (2015)
The conclusion that it was defendant's burden to allege facts supporting he was only guilty of a misdemeanor, is supported by the analysis of the Legislative Analyst for Proposition 47. The following analysis was made: "Under current law, theft of property worth $950 or less is often charged as petty theft, which is a misdemeanor or an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occur if the crime involves the theft of certain property (such as cars ) or if the offender has previously committed certain theft-related crimes. This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically, such crimes would no longer be charged as grand theft solely because of the type of property involved or because the defendant had previously committed certain theft-related crimes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), p. 35, italics added.)
It is true that Vehicle Code section 10851 is not listed in Penal Code
However, despite this error by the trial court, defendant is not entitled to relief. 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. He failed to meet this burden. The record of conviction does not establish this fact as he entered a guilty plea and waived his right to a probation referral. Additionally, defendant never stated in the Petition that the Chevy Suburban was valued at less than $950. He stated he was subject to a "grand theft"
We are aware of the recent case of People v. Page (2015)
However, this ignores the language in section 490.2 that a person "shall" be convicted of a misdemeanor if the value of the property taken is less than $950. If a defendant takes a vehicle with a value under $950, he must be charged under Penal Code section 490.2. As such, we disagree with Page 's conclusion that a defendant could be charged with a Vehicle Code section 10851 violation under these circumstances. Hence a defendant who properly pleads in his Penal Code
Defendant claims he was entitled to a hearing on the value of the 2002 Chevy Suburban and that the People had the burden of proving the automobile was valued over $950. We disagree.
In the recent case of People v. Sherow (2015)
Similarly here, defendant made no attempt in the Petition to allege that the value of the 2002 Chevy Suburban was less than $950. Since he did not allege any facts that the Chevy Suburban was less than $950, he did not allege facts making him eligible under Penal Code
Based on the foregoing, defendant was not entitled to resentencing under Penal Code
B. VALUE OF THE VEHICLE
Defendant argues for the first time on appeal that the valuation of the vehicle for purposes of Vehicle Code section 10851 should be based on the
Here, defendant speculates that his conviction of Health and Safety Code section 10851 could have been for only a temporary taking, and if the victim received the vehicle back in the same condition before the taking, loss to the victim would not be the fair market value of the vehicle. Defendant entered a guilty plea. He never challenged the validity of the plea. Moreover, there were no facts in the record of conviction or in the Petition from which the trial court could have determined that his conviction was based on a temporary taking and there was no loss to the victim. Additionally, defendant has provided no case or other authority to support his claim. We will not address this issue raised for the first time on appeal; even if we were to consider the issue, defendant failed to allege facts in the Petition to support his argument.
C. EQUAL PROTECTION
Finally, defendant argues that assuming the Proposition 47 voters intended to only reduce vehicle thefts under Penal Code section 487, subdivision (d)(1), to misdemeanors under Penal Code section 490.2, while leaving Vehicle Code section 10851 violations as felonies, such discrimination is impermissible under the Equal Protection Clause of the United States Constitution and the California Constitution.
" 'The United States and California Constitutions entitle all persons to equal protection of the laws. [Citations.] This guarantee means "that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances." [Citation.] A litigant challenging a statute on equal protection grounds bears the threshold burden of showing "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." [Citation.] Even if the challenger can show that the classification differently affects similarly situated groups, "[i]n ordinary equal protection cases not involving suspect classifications or the alleged infringement of a fundamental interest," the classification is upheld unless it bears no rational relationship to a legitimate state purpose.' " (
We have not concluded in this case that a person who is convicted pursuant to Vehicle Code section 10851 is not eligible for resentencing under
DISPOSITION
The trial court's order denying defendant's petition to recall his sentence is affirmed. Nothing in this decision or in Penal Code
We concur:
RAMIREZ, P.J.
CODRINGTON, J.
Notes
As part of defendant's plea agreement, he agreed to waive his right to appeal as follows: "I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." While normally this court would conclude defendant has no right to appeal to this court contesting his sentence, since Proposition 47 was passed after he entered into the plea agreement, we cannot conclude he knowingly and intelligently waived his right to file the Petition. (People v. Saunders (1993)
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)