Filed 11/2/18 P. v. Carter CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge.

Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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Appellant Najee Carter appeals from the denial of his petition for resentencing pursuant to Proposition 47 (Pen. Code, § 1170.18).[1] Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 17, 2014, at approximately 12:58 a.m., as Martin A. and R.E. sat in Martin’s car, Carter and another suspect each banged on a window, pointed a gun at them, and had them get out. Carter, the second suspect and a third suspect eventually drove off in the car with Martin’s debit card after Carter obtained the pin number for the card.

On August 18, 2014, when Fresno police officers attempted to stop Carter as he drove the stolen car, Carter led them on a chase that ended when he crashed into a fence. Carter fled on foot, but was quickly apprehended.

On August 19, 2014, the Fresno County District Attorney filed a complaint charging Carter with carjacking (§ 215, subd. (a)/ count 1), evading a police officer (Veh. Code, § 2800.2, subd. (a)/count 2), and resisting arrest (§ 148, subd. (a)(1)/count 3). Count 1 also charged Carter with a gun enhancement pursuant to section 12022.53, subdivision (b).

On September 23, 2015, Carter pled no contest to carjacking and evading a peace officer and in count 1 he admitted an arming enhancement pursuant to section 12022, subdivision (a)(1) in exchange for the dismissal of the balance of the complaint and a stipulated prison term of six years eight months.

On October 21, 2015, the court sentenced Carter to the stipulated prison term of six years eight months, the middle term of five years on his carjacking conviction, a one-year arming enhancement, and an eight-month term on his evading a peace officer conviction (one-third the middle term of two years).

On November 2, 2017, pursuant to section 1170.18, Carter filed a petition for resentencing seeking resentencing on his carjacking conviction.

On November 29, 2017, the trial court denied the petition because the carjacking conviction did not qualify for relief.

On December 26, 2017, Carter filed a timely appeal.

Carter’s appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a “supplemental brief” filed on June 14, 2018, Carter cites People v. Page (2017) 3 Cal.5th 1175 (Page), to contend the court erred in denying his petition. There is no merit to this contention.

“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 …, as those sections have been amended or added by this act.’ The cited provisions include … section 490.2, subdivision (a), added by Proposition 47, which provides in pertinent 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 ....’ ” (Page, supra, 3 Cal.5th at pp. 1181‑1182.)

In Page, the Supreme Court held that when a violation of Vehicle Code section 10851 involved only a theft of a vehicle worth $950 or less, the “theft constitutes petty theft under section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.” (Page, supra, 3 Cal.5th at p. 1187.) In such cases, the defendant is eligible for resentencing pursuant to section 1170.18, subdivision (a). (Page, supra, at p. 1187.) However, to qualify for resentencing the defendant must show that his conviction for violating Vehicle Code section 10851 was based on the theft of the vehicle rather than on the posttheft driving and that the vehicle was worth less than $950. (Page, supra, at pp. 1180, 1187.)

Carter petitioned to have his carjacking conviction reduced to a misdemeanor. However, carjacking is not listed in section 1170.18, subdivision (a) as one of the offenses that can be reduced to a misdemeanor pursuant to that section. Further, “ ‘ “[c]arjacking” is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.’ (§ 215, subd. (a).) [¶]

Section 484, subdivision (a), defines the crime of theft: ‘Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another ... is guilty of theft.’ Section 486 declares: ‘Theft is divided into two degrees, the first of which is termed grand theft, the second, petty theft.’ ” (People v. Ortega (1998) 19 Cal.4th 686, 693.)

Carjacking, however, involves more than just a theft of a vehicle because it requires two elements not required for theft: “that the vehicle be taken from the possession or immediate presence of another, and that the taking be ‘accomplished by means of force or fear.’ (Compare section 215 with section 484.) [Additionally,] [t]heft requires an element—the specific intent to permanently deprive a person of property—that is not required for carjacking.” (People v. Ortega, supra, 19 Cal.4th at p. 693.) Thus, Page is inapposite because unlike a violation of Vehicle Code section 10851 that involves only the theft of a vehicle, a carjacking, even if accomplished with the intent to steal, involves more than a theft of property because it requires two additional elements not required for a theft. In any case, Carter did not provide any evidence in support of his petition to establish that the vehicle he carjacked was worth $950 or less. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 [petitioner has initial burden of proof to show eligibility for resentencing pursuant to section 1170.18].) Therefore, the trial court did not err when it denied Carter’s petition to resentence him on his carjacking conviction.

Following an independent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION

The judgment is affirmed.