People v. White CA6 ( 2016 )


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  • Filed 6/7/16 P. v. White CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                          H042019
    (Santa Clara County
    Plaintiff and Respondent,                                   Super. Ct. No. B1470948)
    v.
    JERRY DARNELL WHITE,
    Defendant and Appellant.
    Defendant Jerry Darnell White appeals from the denial of his petition for
    resentencing under Proposition 47. Defendant contends Penal Code section 490.2
    (Section 490.2) makes him eligible for resentencing on his conviction for attempted theft
    of a car under Vehicle Code section 10851 (Section 10851).1 The trial court denied the
    petition on the ground that the value of the vehicle defendant attempted to steal was
    greater than $950.
    We conclude a defendant convicted under Section 10851 may be eligible for
    Proposition 47 resentencing if he or she can show the offense qualifies as a petty theft
    under Section 490.2. Here, however, the trial court found defendant attempted to steal a
    vehicle valued at $18,000, well above the $950 limit for eligibility under Proposition 47.
    1
    This issue is currently before the California Supreme Court. (People v. Page
    (2015), formerly at 
    241 Cal. App. 4th 714
    , review granted Jan. 27, 2016, S230793.)
    The trial court’s finding is supported by the record. Accordingly, we will affirm the
    denial of defendant’s petition.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    A. Facts of the Offense2
    On February 1, 2014, around 1:37 a.m., a security guard at a Toyota dealership in
    Sunnyvale spotted defendant and two other persons on a security camera. The three
    persons entered the dealership’s car lot where defendant approached a 2009 Ford F150.
    Using a screwdriver, defendant pried open a lockbox attached to the rear driver’s side
    window of the vehicle. He subsequently attempted to break into a lockbox attached to a
    Toyota Tundra.
    The security guard called the police, who arrived and arrested defendant. Police
    searched him and found a plastic card which appeared to have been taken from the
    lockbox on the Ford F150. Police also found a screwdriver and the keys to the vehicle on
    the ground of the lot. The police report listed the value of the Ford F150 and the Toyota
    Tundra at $18,000 each.
    B. Procedural Background
    In February 2014, the prosecution charged defendant by felony complaint with one
    count of attempting to drive and take a vehicle—a 2009 Ford F150—with a prior
    conviction (Pen. Code, §§ 664, 666.5; Veh. Code, § 10851, subd. (a)). The complaint
    further alleged defendant had been convicted of numerous prior felonies, including four
    prior vehicle thefts, for which he had served a prison term. (Pen Code, § 667.5, subd.
    (b).)
    In March 2014, defendant pleaded no contest to one count of attempted vehicle
    theft as charged. He admitted all allegations. In June 2014, the trial court imposed a total
    2
    The statement of facts is based on the facts set forth in police reports attached to
    the probation report.
    2
    term of five years, equal to the mitigated term of two years for the attempted theft and
    three consecutive one-year terms for the prior prison terms.
    In December 2014, defendant petitioned for resentencing under Proposition 47.
    (Pen. Code, § 1170.18.) In a written order, the trial court denied the petition on the
    ground that the value of the vehicle was $18,000, exceeding the $950 limit for
    resentencing eligibility under Penal Code section 1170.18.
    II. DISCUSSION
    Defendant contends the trial court erred by denying his petition because he is
    eligible for resentencing under Section 490.2, which defines petty theft and makes it a
    misdemeanor. The Attorney General contends the trial court properly denied the petition
    because Proposition 47 does not apply to a violation of Section 10851. She further
    argues that the value of the vehicle exceeded the $950 limit.
    We agree with defendant that a conviction under Section 10851 may be eligible
    for resentencing under Section 490.2, provided the offense satisfies the elements of petty
    theft as defined by that section. But we conclude the record here does not support a
    showing that the theft was a petty theft.
    A. Background
    In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
    and Schools Act (the Act), which reduced certain drug- and theft-related offenses to
    misdemeanors. As relevant here, the Act added Section 490.2, which defined certain
    petty thefts as misdemeanors. Proposition 47 also created a new resentencing scheme for
    persons serving felony sentences for offenses which were made misdemeanors by the
    Act. (Pen. Code, § 1170.18, subd. (a).) A person currently serving a sentence for a
    felony conviction may petition for recall if the person would have been guilty of a
    misdemeanor had Proposition 47 been in effect at the time of the offense. Such a person
    may request resentencing in accordance with Section 490.2, among other sections.
    3
    Here, the issue of defendant’s eligibility for resentencing is a question of statutory
    construction. “Statutory construction is a question of law which we decide
    independently. [Citation.] Our role in construing any statute is to ascertain the
    Legislature’s intent and effectuate the purpose of the law. Generally, we accomplish this
    task by giving the statutory words their usual, ordinary meanings. [Citation.] ‘ “If the
    words of the statute are clear, the court should not add to or alter them to accomplish a
    purpose that does not appear on [its] face . . . or from its legislative history.” ’
    [Citation.]” (People v. Love (2005) 
    132 Cal. App. 4th 276
    , 284.)
    To determine defendant’s eligibility for resentencing, we must determine whether
    defendant would have been guilty of a misdemeanor if Proposition 47 had been in effect
    in November 2012 when defendant committed his offense. This analysis assumes
    Section 490.2 was also in effect at that time. Section 490.2 provides, in part:
    “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 . . . .” (Pen. Code, § 490.2, subd. (a).)
    Nothing in the plain language of the statute—which covers “any property by theft”—
    excludes the theft of a vehicle. Thus, if defendant stole a vehicle with a value of $950 or
    less, that offense would have been a misdemeanor under Section 490.2.
    B. Eligibility for Resentencing under Section 490.2
    The Attorney General contends Proposition 47 had no effect on Section 10851.
    While Proposition 47 did not list Section 10851 by name or number, the plain language
    of Section 490.2 unambiguously includes conduct prohibited under Section 10851.
    Section 10851 punishes “[a]ny 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 . . . .” (Veh Code, § 10851, subd. (a).)
    4
    Nothing in this statute addresses the value of vehicles that are taken or driven; thus,
    Section 10851 includes the taking of a vehicle worth $950 or less by a person who
    intends to permanently deprive the owner of his or her title to or possession of the
    vehicle. But, “[n]otwithstanding . . . any other . . . law defining grand theft,” Section
    490.2 now punishes the theft of a vehicle worth $950 or less as a misdemeanor.
    The taking of any property may be a theft if the offender takes the property with
    the intent to permanently deprive the owner of possession, or “for so extended a period as
    to deprive the owner of a major portion of its value or enjoyment.” (People v. Avery
    (2002) 
    27 Cal. 4th 49
    , 55.) Section 10851 prohibits the driving or taking of a vehicle
    “with intent either to permanently or temporarily deprive the owner” of possession.
    (Veh. Code, § 10851.) Thus, Section 10851 covers both theft and non-theft conduct. As
    the California Supreme has held, “[Section 10851] defines the crime of unlawful driving
    or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive
    the owner of possession is a form of theft, and the taking may be accomplished by
    driving the vehicle away. For this reason, a defendant convicted under section 10851(a)
    of unlawfully taking a vehicle with the intent to permanently deprive the owner of
    possession has suffered a theft conviction . . . .” (People v. Garza (2005) 
    35 Cal. 4th 866
    ,
    871, original italics.) We thus conclude that if a person convicted of violating Section
    10851 took a vehicle worth $950 or less with the intent to permanently deprive the owner
    of its possession, such conduct is now petty theft, and the prior conviction is eligible for
    resentencing as a misdemeanor under Proposition 47.
    C. Defendant Failed to Establish Eligibility for Relief Under Proposition 47
    Defendant bore the burden to make the initial showing of eligibility under
    Proposition 47. (People v. Sherow (2015) 
    239 Cal. App. 4th 875
    .) In his petition to the
    trial court, defendant presented no facts or evidence apart from those already in the
    record of conviction. The trial court found that the value of the vehicle was $18,000,
    5
    apparently based on the value stated in the police report. On this basis, the court found
    defendant ineligible for resentencing.
    The trial court’s finding is supported by substantial evidence as set forth in the
    police report. Furthermore, we find no evidence in the record that defendant intended to
    permanently deprive the owner of possession of the vehicle. Accordingly, we conclude
    the offense did not constitute petty theft under Section 490.2, and defendant is ineligible
    for resentencing under Proposition 47.
    D. The Statutory Scheme Does Not Violate Equal Protection
    Defendant argues that the application of Section 10851 to deny his eligibility for
    resentencing violates his right to equal protection. He contends the law treats the petty
    theft of a vehicle disparately depending on whether the defendant is charged as a felon
    under Section 10851 or a misdemeanant under Section 490.2. He argues that this
    disparity in the law must be analyzed under a strict scrutiny standard. For this
    proposition, he relies on People v. Olivas (1976) 
    17 Cal. 3d 236
    (Olivas) [applying strict
    scrutiny to the length of the commitment of a minor as compared with the incarceration
    of adult offenders], and People v. McKee (2010) 
    47 Cal. 4th 1172
    [classes of individuals
    subject to civil commitment are subject to strict scrutiny].
    In the years since Olivas was decided, our Supreme Court has applied its holding
    narrowly. In People v. Wilkinson (2004) 
    33 Cal. 4th 821
    , the court observed that “[t]he
    language in Olivas could be interpreted to require application of the strict scrutiny
    standard whenever one challenges upon equal protection grounds a penal statute or
    statutes that authorize different sentences for comparable crimes, because such statutes
    always implicate the right to ‘personal liberty’ of the affected individuals. Nevertheless,
    Olivas properly has not been read so broadly.” (Id. at p. 837.) The court concluded:
    “ ‘We do not read Olivas as requiring the courts to subject all criminal classifications to
    strict scrutiny requiring the showing of a compelling state interest therefor.’ ” (Id. at
    p. 838, quoting People v. Davis (1979) 
    92 Cal. App. 3d 250
    , 258.) The court held that the
    6
    rational basis standard applies to sentencing disparities of the type alleged here. (Ibid.)
    (See also Johnson v. Department of Justice (2015) 
    60 Cal. 4th 871
    , 881 [where a disputed
    statutory disparity implicates no suspect class or fundamental right, equal protection is
    violated only where there is no rational relationship between the disparity of treatment
    and some legitimate governmental purpose].) Accordingly, we will apply the rational
    basis standard.
    The challenged statutes differentiate between vehicles valued at $950 or less and
    those of greater value. The state has an obvious interest in more harshly punishing
    crimes involving greater monetary value. Second, the statutes differentiate between
    (1) the theft of a vehicle and (2) the temporary taking of a vehicle without the intent to
    permanently deprive the owner of possession. While the latter conduct may appear less
    culpable at first glance, offenders frequently take temporary possession of a vehicle for
    more nefarious purposes, e.g. to use it in the commission of other, more serious crimes
    without being identified. Furthermore, the crime of “joyriding” often entails causing
    damage to the vehicle, since a temporary possessor has no interest in maintaining the
    operation or condition of the vehicle beyond the limited period of possession. Thus, a
    victim may discover his or her vehicle in a heavily damaged state after the offender’s
    joyride is over and the vehicle is abandoned. We thus conclude the law has a rational
    basis for punishing the temporary taking of a vehicle more harshly than the theft of a
    vehicle.
    E. Defendant Has No Right to a Jury Trial on His Eligibility for Resentencing
    Defendant argues that the trial court violated his Sixth Amendment rights under
    Apprendi v. New Jersey (2000) 
    530 U.S. 466
    (Apprendi) by making a factual finding—
    that the vehicle was valued at $18,000—without a jury trial. He contends the facts
    showing him ineligible for resentencing must be pleaded and proved to a jury beyond a
    reasonable doubt. We disagree.
    7
    In People v. Superior Court (Kaulick) (2013) 
    215 Cal. App. 4th 1279
    (Kaulick), the
    Second District Court of Appeal considered the standard of proof applicable to a finding
    of dangerousness in adjudicating a petition for resentencing under Proposition 36.
    Kaulick argued that under the federal constitution the prosecution bore the burden of
    proving his dangerousness beyond a reasonable doubt. Based on Dillon v. United States
    (2010) 
    560 U.S. 817
    (Dillon), the Kaulick court rejected that argument. As the Kaulick
    court observed, the United States Supreme Court held in Dillon that “a defendant’s Sixth
    Amendment right to have essential facts found by a jury beyond a reasonable doubt
    do[es] not apply to limits on downward sentence modifications due to intervening laws.”
    
    (Kaulick, supra
    , 215 Cal.App.4th at p. 1304.) The court concluded that “[a]ny facts
    found at such a [section 1170.126] proceeding, such as dangerousness, do not implicate
    Sixth Amendment issues.” (Id. at p. 1305.)
    The First District Court of Appeal recently applied the same reasoning to a trial
    court’s finding of property value in the context of a resentencing petition under
    Proposition 47. (People v. Rivas-Colon (2015) 
    241 Cal. App. 4th 444
    , 452 (Rivas-Colon).)
    Based on Kaulick and Dillon, the court in Rivas-Colon concluded the petitioner had no
    right a jury trial on the issue. We find the First District’s reasoning persuasive, and we
    reach the same conclusion here.
    F. The Trial Court’s Reliance on Facts Outside the Record of Conviction
    Defendant argues that the court, in finding the value of the vehicle to be $18,000,
    looked to facts outside the record of conviction. He contends that a trial court’s finding
    of facts pertaining to eligibility is limited to the record of conviction, which does not
    include police reports. For this proposition, defendant relies on People v. Bradford
    (2014) 
    227 Cal. App. 4th 1322
    (Bradford).
    In Bradford, the Third District Court of Appeal considered a trial court’s fact-
    finding process in adjudicating a Proposition 36 petition. The trial court found defendant
    had used a deadly weapon in the commission of the underlying offense, making him
    8
    ineligible for resentencing under Penal Code 1170.12, subdivision (c)(2)(C)(iii). As a
    basis for this finding, the trial court looked to the facts set forth in the court of appeal’s
    prior opinion on direct appeal, which stated that the defendant had used a pair of wire
    cutters during the offense. In defendant’s appeal from the denial of his resentencing
    petition, the court of appeal held that the trial court erred by looking to the facts in the
    original opinion on appeal. The appellate court compared the fact-finding required for
    determining eligibility to the type of finding required to determine whether a prior
    conviction meets the requirements for a sentencing enhancement. (See, e.g., People v.
    Guerrero (1988) 
    44 Cal. 3d 343
    (Guerrero) [trier of fact may look to entire record of
    conviction to determine whether prior conviction constitutes a “serious felony”].) Based
    on Guerrero and its progeny, the Bradford court held that “the trial court must determine
    the facts needed to adjudicate eligibility based on evidence obtained solely from the
    record of conviction.” 
    (Bradford, supra
    , 227 Cal.App.4th at p. 1327.) While courts
    disagree on the precise scope of the documents included in a “record of conviction,”
    courts generally agree that police reports are excluded. (Draeger v. Reed (1999) 
    69 Cal. App. 4th 1511
    , 1521.)
    In People v. Perkins (2016) 
    244 Cal. App. 4th 129
    (Perkins), the Fourth District
    Court of Appeal considered Bradford’s holding in the context of a Proposition 47
    petition. There, the trial court found the defendant ineligible for resentencing on the
    ground that the value of the stolen property exceeded $950. On appeal, the defendant
    cited Bradford for the proposition that the trial court improperly relied on evidence
    outside the record of conviction. The court of appeal rejected this argument. The court
    distinguished Bradford based on the difference between the required eligibility finding
    under Proposition 36 and the required factual finding under Proposition 47: “[E]ligibility
    for resentencing under [Propositon 36] turns on the nature of the petitioner’s
    convictions—whether an offender is serving a sentence on a conviction for nonserious,
    nonviolent offenses and whether he or she has prior disqualifying convictions for certain
    9
    other defined offenses. [Citation.] By contrast, under Proposition 47, eligibility often
    turns on the simple factual question of the value of the stolen property. In most such
    cases, the value of the property was not important at the time of conviction, so the record
    may not contain sufficient evidence to determine its value. For that reason, and because
    petitioner bears the burden on the issue [citation], we do not believe the Bradford court’s
    reasons for limiting evidence to the record of conviction are applicable in Proposition 47
    cases.” (Id. at p. 140, fn. 5.)
    We find the reasoning of Perkins persuasive. Furthermore, as the Attorney
    General points out, if the trial court had been limited to the record of conviction here, the
    court still would have denied defendant’s petition because nothing in the record of
    conviction shows the value of the Ford F150 to be $950 or less. Thus, even assuming
    Bradford’s holding applies here, any error was harmless.
    G. The Trial Court Properly Looked to the Value of the Vehicle Defendant Attempted
    to Steal
    Defendant argues that the finding of the property value at issue should be based
    solely on the adjudicated amount of the loss actually suffered by the victim. He argues
    that the only loss suffered by the victim was the cost of replacing the two lock boxes,
    valued at $34.95 each. Defendant relies on People v. Williams (2013) 
    218 Cal. App. 4th 1038
    . In that case, the court considered Penal Code section 12022.6, which sets forth a
    sentencing enhancement for a loss of property valued at more than $65,000. But that
    code section has no bearing on the adjudication of this Proposition 47 petition.
    Defendant cites no other legal authority in support of his argument. Accordingly, we find
    it without merit.
    H. Right to a Hearing
    Finally, defendant contends the trial court violated his statutory rights under
    Proposition 47 and his constitutional due process rights by failing to hold a hearing on the
    matter. Subdivision (h) of Penal Code section 1170.18 provides that “[u]nless requested
    10
    by the applicant, no hearing is necessary to grant or deny an application filed under
    subsection (f).” Defendant contends that he requested a hearing because his petition
    stated, “Please call me to the calendar as soon as possible.” But subdivision (f) of Penal
    Code section 1170.18 applies only to “[a] person who has completed his or her sentence
    for a conviction.” By contrast, defendant’s petition was filed under subdivision (a) of
    Penal Code section 1170.18, which governs petitions filed by persons currently serving
    sentences. Accordingly, the language noted above from subdivision (h) did not apply to
    defendant. Defendant argues that he was subsequently released from custody prior to the
    court’s adjudication, but he never amended his petition and he never requested a hearing
    under subdivision (h). Accordingly, we find this claim without merit. As for his claim
    that his constitutional due process rights were violated, defendant relies on 
    Apprendi, supra
    . For the reasons discussed earlier in this opinion, Apprendi is inapplicable.
    III.   DISPOSITION
    The order denying the petition for resentencing is affirmed.
    11
    _______________________________
    Márquez, J.
    WE CONCUR:
    _____________________________________
    Rushing, P. J.
    ______________________________________
    Premo, J.