1
Filed 5/8/17 P. v. Bartlett CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON DONALD BARTLETT,
Defendant and Appellant.
E064860
(Super.Ct.No. FVI1400895 &
FVI11202696 & FVI11502369)
OPINION
APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight
III, Judge. Affirmed in part; reversed in part with directions.
Trenton C. Packer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and
Respondent.
2
Brandon Donald Bartlett appeals the trial court’s denial of his Penal Code section
1170.18 petitions to reduce his two felony Vehicle Code section 10851 (Vehicle Code
section 10851) convictions and one felony Penal Code section 496d conviction to
misdemeanors under Proposition 47. We affirm the trial court’s ruling with respect to the
section 496d1 conviction, but we conclude the trial court erred in ruling Proposition 47
does not apply to VC 10851 offenses as a matter of law. As this court recently held in
People v. Van Orden (2017) 9 Cal.App.5th 1277, 1283 (Van Orden), Proposition 47
applies to VC 10851 offenses when the convictions are based on theft (as opposed to
unlawful driving) if the vehicle stolen was less than $950. The police reports for
Bartlett’s VC 10851 offenses create a factual issue as to whether the convictions are
based on theft or on unlawful driving occurring after a “substantial break” from the theft.
(Van Orden, at pp. 1283, 1286-1287.) On remand, the trial court should hold an
evidentiary hearing to determine whether Bartlett’s VC 10851 convictions are entitled to
relief as a factual matter.

1 Unlabeled statutory citations refer to the Penal Code.
3
I
FACTUAL BACKGROUND
Bartlett pled no contest to one felony VC 10851 violation in February 2013 and
pled guilty to another in May 2014. He also pled no contest to a felony section 496d
violation in September 2015.
At the plea hearings, the parties stipulated the police reports for each offense
provided a factual basis for Bartlett’s pleas. The police report for the first VC 10851
offense says at 6:41 p.m. on October 16, 2012, a car owner reported his 1997 Honda
Accord had been stolen. The owner said he had two laptop computers inside his car, a
Dell and a Hewlett Packard. Around 8:00 p.m., the police located Bartlett driving the
Accord. The police followed him into an apartment complex parking lot and arrested
him as he got out of the car. The Accord’s license plate had been removed and replaced
with a stolen plate from a 1994 Honda Accord. The laptops were not in the car, and the
trunk contained stereo equipment the owner said was not his and was not in the car when
it was stolen.
Bartlett told the police he was borrowing the car from someone named Richard.
When asked about the computers, he initially claimed to have no idea, but later said a
person named Nelson might know where they were. The police interviewed Nelson at
the address Bartlett had provided. Nelson said Bartlett had come by around 7:00 p.m.
and asked him if he wanted to buy a stereo from the trunk of his car. Bartlett then took
two laptop computers out of the car and put them on Nelson’s living room table. Nelson
4
told the police one was a Dell and the other was a Hewlett Packard. Nelson said Bartlett
had talked about selling them also, but left when he heard a helicopter flying overhead.
The police report for the second VC 10851 offense says on March 8, 2014, a car
owner reported the theft of her 1996 Honda Accord from an El Pollo Loco parking lot in
Victorville. Around 7:00 p.m. the following evening, the owner again contacted the
police to report she saw her car, “occupied by a white male adult,” in a Food 4 Less
parking lot. She said the license plate had been changed but she recognized her car by its
stickers and markings. The police arrested Bartlett in the Food 4 Less lot and confirmed
the car belonged to the owner and the license plate belonged to a 1996 Dodge Dakota.
The report for the section 496d offense says on September 18, 2015, police found
Bartlett in possession of two stolen cars, a 1997 Honda Accord and a 2003 Ford
Expedition, as well as shaved keys which they believed he used to steal the cars.
After the California voters enacted Proposition 47, Bartlett filed petitions asking
the trial court to reduce his section 496d and two VC 10851 convictions to
misdemeanors. Minute orders dated November 2, 2015 show the court held a hearing on
the petitions where it concluded Bartlett’s convictions did not qualify for Proposition 47
relief as a matter of law.
5
II
DISCUSSION
A. Proposition 47 and the New Definition of Petty Theft
Proposition 47, enacted by California voters in November 2014, reduced certain
felony theft-related offenses to misdemeanors when the value of the stolen property does
not exceed $950 and created a procedure to allow defendants who previously suffered
felony convictions for offenses that are now classified as misdemeanors under
Proposition 47 to petition the trial court to reduce their convictions to misdemeanors.
(§ 1170.18, subds. (a), (f).) One of the provisions the proposition added to the Penal
Code—section 490.2—defines petty theft as “obtaining any property by theft where the
value of the . . . property taken does not exceed nine hundred fifty dollars ($950).”
(§ 490.2, subd. (a).) Bartlett argues he is entitled to relief because his section 496d and
VC 10851 violations would have been petty theft offenses had Proposition 47 been in
effect at the time he committed them. We take his offenses in turn.
B. Bartlett’s Section 496d Conviction Does Not Qualify for Relief
Although the issue is currently under California Supreme Court review, our court
has previously held that Proposition 47 does not apply to section 496d as a matter of law
because the proposition neither directly amended section 496d nor indirectly amended the
provision by making reference to it in amending section 496. (See, e.g., People v.
Garness (2015) 241 Cal.App.4th 1370, review granted Jan. 27, 2016, S231031.)
Bartlett’s argument on appeal does not move us to change our conclusion. He contends
6
receiving a stolen vehicle worth less than $950 constitutes petty theft because section
496d proscribes the receipt of property “that has been stolen or that has been obtained in
any manner constituting theft or extortion.” (§ 496d, subd. (a).) The fact both section
490.2 and section 496d employ grammatical constructions that use the word “obtaining”
near the word “theft” does not make them similar crimes. Section 490.2 criminalizes the
theft, whereas section 496d and the other receiving stolen property provisions of the
Penal Code criminalize the subsequent non-larcenous acquisition. (Compare § 490.2
with §§ 496-496e.) We adhere to our prior holding that Proposition 47 does not apply to
section 496d as a matter of law and therefore affirm the trial court’s ruling on that
conviction.
C. Bartlett’s VC 10851 Convictions May Qualify for Relief
Recently, in People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski), the
California Supreme Court explained that a trial court may rule summarily on a section
1170.18 petition if the evidence in the petition and the record of conviction establish
whether the petitioner is eligible for misdemeanor reduction. But if the trial court cannot
determine eligibility based on such evidence, it should hold a hearing if “there is a
reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s
entitlement to relief depends on the resolution of an issue of fact.” (Romanowski, at
p. 916.)
7
In Van Orden, a majority of this panel held Proposition 47 applies to VC 10851
theft convictions (as opposed to unlawful driving convictions) where the value of the
stolen vehicle is less than $950. (Van Orden, supra, 9 Cal.App.5th at p. 1283.) As
relevant here, the test for determining whether a conviction is for theft or unlawful
posttheft driving is whether the driving continued after a “substantial break” from the
theft had elapsed. (Id. at pp. 1283, 1286-1287.) In Garza, the California Supreme Court
suggested a substantial break occurs if the thief continues to drive the stolen vehicle after
“reach[ing] a place of temporary safety.” (People v. Garza (2005) 35 Cal.4th 866, 880.)
Here, the evidence in the police reports for Bartlett’s VC 10851 convictions create
a factual issue as to whether the offenses were based on theft or posttheft driving.
According to the report for the October 2012 offense, police found Bartlett with the
victim’s car less than two hours after the victim reported it stolen. This supports an
inference Bartlett was still engaged in the theft when he was arrested and that he had not
yet reached a place of temporary safety or, put differently, a substantial break had not
elapsed. On the other hand, evidence in the report also indicates that after stealing the
car, Bartlett changed the license plate, loaded the trunk with stereo equipment, drove it to
Nelson’s residence to try to sell the stereo equipment and the stolen laptops, then he
drove it to the apartment complex where he was ultimately arrested. This evidence
supports an inference Bartlett reached at least one, and possibly two or three, places of
temporary safety before he was arrested. Because this evidence creates a “reasonable
likelihood” Bartlett suffered a theft conviction, the trial court should hold an evidentiary
8
hearing to resolve the factual issue of whether the conviction is based on theft or posttheft
driving. (Romanowski, supra, 2 Cal.5th at p. 916.)
The same goes for Bartlett’s March 2014 offense. The police report says he was
arrested in a Food 4 Less parking lot the day after the victim reported her car stolen from
an El Pollo Loco parking lot. The fact a theft takes place “in an entirely different
location” and on a different day than the arrest is evidence there was a substantial break
between the theft and the subsequent driving. (People v. Malamut (1971) 16 Cal.App.3d
237, 242.) However, we cannot say as a matter of law that the offense constitutes
posttheft driving; this is a factual issue the trial court should determine at a hearing where
the parties are allowed to present evidence, including Bartlett’s testimony on the
circumstances of the offense. (See People v. Smith (2016) 1 Cal.App.5th 266, 275
[determining eligibility based on factual issues is the province of the trial court]; People
v. Contreras (2015) 237 Cal.App.4th 868, 892 [factual findings regarding Proposition 47
eligibility “must be made by the trial court in the first instance”].)
Section 1170.18 conditions eligibility for misdemeanor reduction on proof the
petitioner would have been guilty of a misdemeanor had Proposition 47 been in effect at
the time of the offense. (§ 1170.18, subds. (a), (f).) On remand, Bartlett is not entitled to
relief if the trial court determines his VC 10851 offenses were based on unlawful driving,
as that offense remains a wobbler, unaffected by Proposition 47. (Van Orden, supra, 9
Cal.App.5th at p. 1289.) But if the court determines the offenses are based on theft and
additionally that the cars were worth less than $950, Bartlett is entitled to relief.
9
III
DISPOSITION
We affirm the judgment as to the section 496d convictions. As to the VC 10851
convictions, we reverse and remand with directions to hold an evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
I concur:
MILLER
J.
1
HOLLENHORST, J., Concurring and dissenting.
I agree with the majority’s affirmance with respect to the Penal Code section 496d
conviction. We part ways with respect to the Vehicle Code section 10851 convictions. I
continue to adhere to my previously published view that Vehicle Code section 10851
convictions do not fall within the scope of relief provided by Proposition 47. (See People
v. Van Orden (2017) 9 Cal.App.5th 1277, 1295 (dis. opn. of Hollenhorst, J.).) I would
therefore affirm the trial court’s ruling in its entirety, pending further instructions from
the California Supreme Court. (See, e.g., People v. Page, review granted Jan. 27, 2016,
S230793.)
HOLLENHORST
Acting P. J.