People v. Mercado, C079671

• Decision Date: 30 April 2019
• Docket Number: C079671
• Parties: THE PEOPLE, Plaintiff and Respondent, v. EMANUEL MONTALVO MERCADO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. EMANUEL MONTALVO MERCADO, Defendant and Appellant.

C079671

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Glenn)

April 30, 2019

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 11NCR09001, 12NCR09089, 12NCR09093, 12NCR09489)

Defendant Emanuel Montalvo Mercado appeals from the trial court's orders denying his petitions for reduction of his felony convictions to misdemeanors pursuant to Penal Code¹ section 1170.18, subdivision (f) in four separate cases.² He contends thetrial court erred in finding these felony convictions were ineligible for reduction under Proposition 47. We agree but only regarding defendant's conviction for unlawful taking and driving a vehicle. We disagree regarding defendant's conviction for receiving a stolen vehicle and convictions for transportation of a controlled substance. Accordingly, we affirm without prejudice to consideration of a petition providing evidence of defendant's eligibility in case No. 12NCR09093. We affirm in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2012, defendant pled no contest to one count of transportation of methamphetamine pursuant to the statute then in effect, which did not require defendant transport the methamphetamine for sale as the current statute does. (See People v. Eagle (2016) 246 Cal.App.4th 275, 278.) The minute order from defendant's plea hearing provides the parties stipulated defendant possessed the methamphetamine for personal use.

In February 2012, defendant was charged with two offenses related to the taking and driving of a 1998 Honda Civic. Before resolving this case and while out on bail, defendant was again arrested and charged with two offenses and an on-bail enhancement related to the taking and driving of a 1992 Honda Civic. He resolved these cases at the same time by pleading no contest to receiving the stolen 1998 Honda Civic (§ 496d, subd. (a)), and unlawfully taking and driving the 1992 Honda Civic (Veh. Code, § 10851) while released on bail (§ 12022.1).

In December 2012, defendant again pled no contest to one count of transportation of methamphetamine pursuant to the statute then in effect, which did not require hetransport the methamphetamine for sale. (See People v. Eagle, supra, 246 Cal.App.4th at p. 278.)

Defendant petitioned for reduction of his felony drug offenses to misdemeanors. The prosecution opposed defendant's petitions and also opposed reduction of the theft offenses in defendant's outstanding cases. The court found all of these convictions were ineligible for resentencing under section 1170.18 and thus it could not reduce any of them to misdemeanors. Defendant appeals.

DISCUSSION³

"In November 2014, the voters passed Proposition 47, The Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or 'wobblers' to misdemeanors. Proposition 47 reclassified some offenses by amending the statutes that defined those crimes. As relevant here, Proposition 47 amended [Health and Safety Code] section 11377 to punish as a misdemeanor the possession of a controlled substance. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 13, p. 73 (Voter Information Guide).) In other instances, Proposition 47 added new provisions to the Penal Code carving out a lesser crime from a preexisting felony (see Voter Information Guide, supra, § 5, p. 71 [creating Pen. Code, § 459.5 to distinguish the misdemeanor of 'shoplifting' from the felony of burglary]) or redefining how a term is understood throughout the California Codes (see id., § 8, p. 72 [adding Pen. Code, § 490.2 to lower the potential punishment for certain categories of grand theft '[n]otwithstanding . . . any other provision of law defining grand theft' (italics omitted)]). Through its various provisions, Proposition 47 made clear that certain types of criminal conduct once punishable as felonies now constitute only misdemeanors." (People v. Martinez (2018) 4 Cal.5th 647, 651.)

The initiative also provided that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)

"A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility." (People v. Page (2017) 3 Cal.5th1175, 1188.) If the defendant fails to meet this burden, the trial court's order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (People v. Perkins (2016) 244 Cal.App.4th 129, 139.) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court." ' " (Ibid.)

ICar Offenses

Defendant contends the trial court erred when it found his felony convictions for unlawful taking or driving a vehicle and receiving a stolen vehicle ineligible for reduction. We agree but only to defendant's conviction for unlawful taking or driving a vehicle.

In Page, the California Supreme Court determined that "Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing." (People v. Page, supra, 3 Cal.5th at p. 1184.) Specifically, the court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, at p. 1187; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and forredesignation after the sentence has been completed].) The court observed that "while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under [Vehicle Code] section 10851, it is, in effect, a form of grand, rather than petty, theft." (Page, at p. 1186.)

To establish eligibility for reduction of a Vehicle Code section 10851 conviction, the defendant must show (1) the conviction was based on theft of the vehicle, rather than on posttheft driving or on a taking without the intent to permanently deprive the owner of possession, and (2) the vehicle was worth $950 or less. (People v. Page, supra, 3 Cal.5th at p. 1188.) In Page, the court found the defendant's petition was properly denied where it contained "no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less." (Page, at pp. 1180, 1189.) The court determined, however, the defendant was "entitled to an opportunity to file a new petition" because "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and . . . neither had yet been judicially articulated when defendant submitted his petition." (Page, at p. 1189.) The court concluded that the trial court's order denying the defendant's petition should be "affirmed without prejudice to consideration of a petition providing evidence of his eligibility." (Id. at p. 1190.)

Here, like Page, defendant's petition contained no allegations, testimony, or record references showing (1) his Vehicle Code section 10851 conviction was based on the theft of the 1992 Honda Civic as opposed to the driving of it, and (2) the 1992 Honda Civic's value was $950 or less. Instead, the prosecution construed defendant's petitions as requesting reduction of his felony convictions in all his outstanding cases and opposed the reduction of defendant's Vehicle Code section 10851 conviction as ineligible. Therefore, the court properly denied defendant's petition. (People v. Page, supra, 3Cal.5th at p. 1189.) But because defendant's petition was filed before "the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction" were clearly established, defendant is "entitled to an opportunity to file a new petition" to "allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18."⁴ (Page, at p. 1189.)

Defendant's conviction for receiving a stolen vehicle, however, is ineligible for reduction. Section 496d is not among the statutes listed in section 1170.18 and there is "no indication that the drafters of Proposition 47 intended to include section 496d." (People v. Varner (2016) 3 Cal.App.5th 360, 366.) In Varner, "[t]he court distinguished 'the changes made by Proposition 47 to the crimes of grand theft and petty theft,' which were accomplished in part by the addition of section 490.2, which defines petty theft and references ' "any other provision of law defining grand theft." ' [Citation.] The court noted that no such broad language had been included in the changes made to section 496, subdivision (a) [(receipt of stolen property)], and that section 496, subdivision (a) 'contains no reference to section 496d.' [Citation.] This indicated that 'the drafters [of Proposition 47] int...