People v. Page, S230793

• Decision Date: 30 November 2017
• Docket Number: S230793
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Timothy Wayne PAGE, Defendant and Appellant.

3 Cal.5th 1175

406 P.3d 319

225 Cal.Rptr.3d 786

The PEOPLE, Plaintiff and Respondent,

v.Timothy Wayne PAGE, Defendant and Appellant.

S230793

Supreme Court of California

Filed November 30, 2017

Jeffrey S. Kross, Sebastopol, under appointment by the Supreme Court, 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, Steven T. Oetting, Deputy State Solicitor General, Michael Pulos, Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

Kruger, J.Approved by the voters in 2014, Proposition 47 (the "Safe Neighborhoods and Schools Act") reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new 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. A separate provision of Proposition 47, codified in Penal Code section 1170.18, subdivision (a), establishes procedures under which a person serving a felony sentence at the time of Proposition 47's passage may be resentenced to a misdemeanor term if the person "would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense." ( Pen. Code, § 1170.18, subd. (a).) The question in this case concerns the application of these provisions to a prior conviction under Vehicle Code section 10851, taking or driving a vehicle without the owner's consent.

At the time of Proposition 47's passage, defendant Timothy Wayne Page was serving a felony sentence for a violation of Vehicle Code section 10851, among other offenses. Shortly after Proposition 47 was passed, defendant filed a petition for resentencing under Proposition 47. The trial court denied the petition and the Court of Appeal affirmed, holding that Proposition 47 did not affect punishment under Vehicle Code section 10851.

We conclude the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47. Penal Code section 1170.18 ( section 1170.18 ) does not expressly refer to Vehicle Code section 10851, but it does permit resentencing to a misdemeanor under Penal Code section 490.2 ( section 490.2 ) for theft of property worth $950 or less. As this court has previously explained, Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle. ( People v. Garza(2005) 35 Cal.4th 866, 871, 28 Cal.Rptr.3d 335, 111 P.3d 310.) A person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less.

Because defendant's uncounseled petition in this case provides no information concerning the basis for his Vehicle Code section 10851 conviction, it fails to establish either that defendant was convicted for theft of the vehicle or that the vehicle was worth $950 or less. The trial court therefore properly denied defendant's petition. But because defendant is entitled to the opportunity to allege and prove his eligibility for resentencing, we modify the judgment of the Court of Appeal to provide that its affirmance of the superior court's denial order is without prejudice to the filing of a new petition.

I.

In May 2012, defendant was charged by complaint with three felonies: taking or driving a vehicle in violation of Vehicle Code section 10851, subdivision (a) (count 1); evading an officer while driving with willful disregard for safety, in violation of Vehicle Code section 2800.2, subdivision (a) (count 2); and resisting an officer in violation of Penal Code section 69 (count 3). The complaint further alleged prior conviction of two serious or violent felonies ( Pen. Code, §§ 667, 1170.12 ) and four prior prison term felonies (id., § 667.5).

In June 2012, defendant entered a negotiated plea of guilty to all three counts and admitted one prior serious or violent felony conviction and two prior prison terms; the remaining enhancement allegations were dismissed on the People's motion. The court sentenced defendant to an aggregate prison term of 10 years and 8 months, the principal term being six years for count 1, the Vehicle Code section 10851 violation (the upper term of three years, doubled for the prior serious felony "strike").

On November 4, 2014, voters approved Proposition 47, and it became effective the following day. Approximately two weeks later, defendant, proceeding without counsel, submitted a "Motion for Modification of Sentence" form in which he asked for his sentence to be reduced based on "New law— Prop 47." The superior court treated it as a petition for resentencing pursuant to section 1170.18 and denied it on the ground that defendant "does not satisfy the criteria in Penal Code section 1170.18 and is not eligible for resentencing."

The Court of Appeal affirmed. The court reasoned that while Proposition 47 amended or added a number of criminal statutes to reduce felony punishment to the misdemeanor level, it did not do so for Vehicle Code section 10851. Because the section 10851 offense remains an alternative felony-misdemeanor (a "wobbler") after Proposition 47, the appellate court could not conclude defendant would have been guilty of only a misdemeanor had the initiative's provisions been in effect at the time of his offense, as section 1170.18 requires. Nor, according to the court, did defendant's conviction come within the terms of section 490.2, Proposition 47's new petty theft statute, since Vehicle Code section 10851 does not proscribe theft, but rather taking or driving a vehicle with or without the intent to steal it. Finally, the Court of Appeal rejected defendant's argument that equal protection principles require his Vehicle Code section 10851 conviction be treated the same as a conviction for grand theft of an automobile under Penal Code section 487, subdivision (d), for which misdemeanor resentencing is available under section 1170.18 if the vehicle's value is $950 or less.

We granted defendant's petition for review.

II.

Proposition 47's resentencing provision, section 1170.18, subdivision (a), provides, in pertinent part: "A person who, on November 5, 2014, was serving a sentence for a conviction ... 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."¹ The cited provisions include Penal Code section 490.2, subdivision (a), added by Proposition 47, which provides in pertinent part: "Notwithstanding [Penal Code] 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 ...."

Under these provisions, a person serving a sentence for grand theft under Penal Code section 487 or another statute expressly defining a form of grand theft (e.g., Pen. Code, §§ 484e, 487a, 487i ) is clearly eligible for resentencing under section 1170.18 if he or she can prove the value of the property taken was $950 or less. (See People v. Romanowski(2017) 2 Cal.5th 903, 910–914, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ) [defendant convicted for theft of access card information under Penal Code section 484e eligible for resentencing].) This means that a person serving a sentence for conviction of grand theft of an automobile ( Pen. Code, § 487, subd. (d)(1) ), for example, could seek resentencing under section 1170.18 if the vehicle taken was worth $950 or less. The question presented here is whether the same is true for a person convicted under Vehicle Code section 10851.

A.

Vehicle Code section 10851 differs in two important ways from Penal Code section 487, subdivision (d)(1). For one thing, the Vehicle Code section does not expressly designate the offense as "grand theft." And for another, its prohibitions sweep more broadly than "theft," as the term is traditionally understood. Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner's consent, 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), italics added.) Theft, in contrast, requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession. ( People v. Riel(2000) 22 Cal.4th 1153, 1205, 96 Cal.Rptr.2d 1, 998 P.2d 969 ; People v. Davis(1998) 19 Cal.4th 301, 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165.)²

We recognized the distinction between the theft and non-theft forms of the Vehicle Code section 10581 offense in People v. Garza, supra, 35 Cal.4th 866, 28 Cal.Rptr.3d 335, 111 P.3d 310 ( Garza ). In that case, we considered whether dual convictions under Vehicle Code section 10851 and Penal Code section 496, subdivision (a) (receiving stolen property) violated the statutory rule against convicting a person for both stealing and receiving the same property. We concluded the answer depended on the basis for the Vehicle Code section 10851 conviction—whether it was for...