People v. Preciado, B265313

• Decision Date: 22 June 2018
• Docket Number: B265313
• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY A. PRECIADO, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY A. PRECIADO, Defendant and Appellant.

B265313

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

June 22, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

Los Angeles County Super. Ct. No. KA106424

APPEAL from an order of the Superior Court of Los Angeles County, Wade Olson, Temporary Judge (see Cal. Const., art. VI, § 21). Reversed with directions.

Lise M. Breakey, 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, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2015, defendant Anthony A. Preciado appealed from the denial of his petition for recall and resentencing under Proposition 47, arguing that the initiative, which reduced the penalty for theft of property worth $950 or less, applied to his felony conviction for taking or driving a vehicle under Vehicle Code section 10851. In 2016, we concluded he was not convicted of a qualifying theft offense and affirmed. The Supreme Court granted review and has now transferred the case back to us for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175 (Page). Having reconsidered the matter, we now hold that defendant's petition and superior court file established a prima facie basis for relief under Proposition 47. Accordingly, we reverse and remand for further consideration of his Proposition 47 eligibility.

BACKGROUND

On June 24, 2014, defendant was arrested when police caught him trying to drive a forklift off a construction site. The forklift was running, and defendant had removed the ignition switch, which the police found in his pocket.

Defendant was charged by felony complaint filed June 30, 2014, with one count of driving or taking a vehicle (Veh. Code, § 10851, subd. (a); count 1). The complaint also alleged one strike prior (Pen. Code, §§ 667, subds. (b)-(j), 1170.12, subd. (b)) and one prison prior (Pen. Code, § 667.5, subd. (b)).

On July 15, 2014, in accordance with a negotiated plea, defendant pled no contest to count 1 and admitted the prior felony conviction. The court sentenced defendant to 32 months in state prison—the low term of 16 months for count 1, doubled forthe prior strike—and ordered him to pay various fines and fees, including a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)). The court also ordered defendant to pay victim restitution under Penal Code section 1202.4, subdivision (f), and retained jurisdiction to determine the amount of the restitution. The court dismissed the remaining allegations.

On April 20, 2015, defendant, who was then serving a prison sentence in San Luis Obispo, filed a petition in propria persona for recall and resentencing under Proposition 47. (Pen. Code, § 1170.18, subd. (a).) Defendant utilized CRIM 235, a form "Adopted for Use" by the Los Angeles Superior Court. Defendant wrote that he had been convicted of "VC § 10851(a)(3) (Taking Vehic w/out Owner's Consent)." And although he did not check the box alleging that the property at issue was worth $950 or less—a box designated "For Penal Code convictions only"—he handwrote on the petition, "The owner got the car back, rest'n order was for $300."

On May 20, 2015, the court denied the petition, stating, "This charge does not apply to the Prop. 47. This is a joyride, 10851(a). Taking or driving a vehicle. Therefore, the petition in this matter is denied." Defendant was neither present nor represented by counsel at this proceeding.

Defendant filed a timely notice of appeal. Among other potential grounds for appeal, he noted that the "language of Prop. 47 is broadly inclusive and covers all theft offenses where the loss doesn't exceed $950" and that the "trial court should have given parties a chance to introduce evidence and litigate value of victim's losses before ruling on Prop. 47 petition."

On May 12, 2016, we affirmed by unpublished opinion, concluding that Vehicle Code section 10851 (Section 10851) wasnot eligible for relief under Proposition 47. We did not reach the issue of whether defendant met his prima facie burden of showing that the stolen property was worth $950 or less. The Supreme Court granted review, and on March 21, 2018, the Court transferred the matter to us for reconsideration in light of Page, supra, 3 Cal.5th 1175.

DISCUSSION

Defendant contends that under Page, Penal Code section 490.2 (Section 490.2), which reduced the penalty for "obtaining any property by theft where the value of the ... property taken does not exceed nine hundred fifty dollars ($950)," applies to his conviction for taking or driving a vehicle under Section 10851. The People argue that defendant's conviction was based on post-theft driving rather than theft, and that in any event, defendant failed to establish a prima facie basis for relief.

1. Proposition 47

On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).) The initiative aimed to "ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from" the Act in elementary and high school programs, victims' services, and mental health and drug treatment. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.)

Proposition 47 targeted these goals in four ways: (1) it amended the Penal Code and Health and Safety Code to reduce certain property crimes and possessory drug offenses fromfelonies or wobblers¹ to misdemeanors; (2) it allowed people serving felony sentences for newly-reduced offenses to ask the court to resentence them as misdemeanants (Pen. Code, § 1170.18, subds. (a), (b)); (3) it allowed people who had finished serving a qualified felony sentence to ask the court to reclassify the conviction as a misdemeanor (Pen. Code, § 1170.18, subds. (f)-(h)); and (4) it created a Safe Neighborhoods and Schools Fund to be financed with savings generated by the changes to the sentencing laws (Gov. Code, § 7599 et seq.). (Ballot Pamp., supra, text of Prop. 47, § 3, p. 70.)

As relevant here, though Proposition 47 purported to reduce the penalties for grand theft, it did not directly amend any substantive theft statute. (Ballot Pamp., supra, analysis of Prop. 47 by Legis. Analyst, p. 35 ["Specifically, the measure reduces the penalties for the following crimes: [¶] Grand Theft."].) Instead, the initiative added a new provision to the Penal Code chapter dealing with theft. (§ 490.2; see Pen. Code, § 484 et seq.) The new provision provides, "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" unless the defendant has been convicted of a specified violent or serious crime. (§ 490.2.)

Under Penal Code section 1170.18, a defendant currently serving a felony sentence for a crime that would have been a misdemeanor under Proposition 47 may petition for resentencing in accordance with the provisions of the Act, including Section 490.2. (Pen. Code, § 1170, subds. (a)-(b).) In Page, the Supreme Court concluded that Section 490.2 applies to some—but not all—felony convictions under Section 10851. (Page, supra, 3 Cal.5th at pp. 1187-1188.) To explain why, we review the intersection of Section 10851 and a typical theft offense.

2. Obtaining Property by Theft

As enacted by Proposition 47, Section 490.2 neither redefines nor establishes a substantive theft offense. Instead, "theft" is defined in Penal Code section 484, subdivision (a), which provides: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (See People v. Davis (1998) 19 Cal.4th 301, 304-305 [Pen. Code, § 484 consolidates several formerly distinct offenses into the single crime of theft, including larceny and theft by trick].) Penal Code section 490a, in turn, provides that any law referring to larceny, embezzlement, or stealing is a theft offense. (Pen. Code, § 490a.)

The statute's reference to various "felonious[ ]" takings imports the common law's specific intent requirement into Penal Code section 484's designations of these takings as thefts. (People v. Avery (2002) 27 Cal.4th 49, 55, 58 (Avery).) To steal or "obtain[ ] property by theft," a defendant must take the property with the specific intent "to permanently deprive the owner of possession." (People v. Davis, supra, 19 Cal.4th at p. 305; Avery, at p. 54 ["California courts have long held that theft by larceny requires the intent to permanently deprive the owner of possession of the property."].) Without "a specific intent to steal, i.e., an intent to deprive an owner permanently of his property," "[t]he taking of property is not theft[.]" (...