Filed 9/27/17 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John L. Flynn, Judge. Affirmed in part, reversed in part, and remanded with directions.

Jean Matulis, 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, Julie L. Garland, Assistant Attorney General, Eric S. Swenson, Kristine A. Gutierrez, Lynne G. McGinnis and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury found defendant Juan Manuel Hernandez guilty of unlawfully taking or driving a vehicle and receiving a stolen vehicle. (Veh. Code, § 10851, subd. (a); Pen. Code, § 496d.)[1] After the electorate approved Proposition 47, the “Safe Neighborhoods and Schools Act,” Hernandez filed a petition to have his convictions reduced from felonies to misdemeanors. (§ 1170.18, subd. (a).) Hernandez claimed that the value of stolen vehicle was $950 or less. (§ 490.2, subd. (a).)

The trial court conducted an eligibility hearing and denied Hernandez’s petition. The court found that the value of the vehicle “exceeds $950 from the evidence presented.” However, it appears that the court may have misunderstood Hernandez’s documentary evidence (DMV records), which he presented at the hearing. Out of an abundance of caution, we reverse the court’s denial of the petition and remand with directions to allow Hernandez to file a new petition under Proposition 47. In all other aspects, the remaining judgments in this consolidated appeal are affirmed.

I

FACTUAL AND PROCEDURAL BACKGROUND

In July 2013, J. Ramos parked his car at the rear of his apartment complex. The car was a 1997 Acura Integra, which Ramos had purchased earlier in 2013 for $3,200. The following morning, Ramos discovered that his car was missing and called the police. Five or six days later, a police officer saw Hernandez driving the car. When the officer looked inside the car, he saw that the steering column had been broken and someone had punched out the ignition.

In August 2014, a jury convicted Hernandez of two felonies and one misdemeanor: 1) receiving a stolen vehicle (§ 496d); 2) unlawfully driving or taking a vehicle (Veh. Code, §10851); and 3) driving a vehicle without a license (Veh. Code, § 12500, subd. (a)). Hernandez admitted a prior strike conviction. The trial court imposed an aggregate sentence of seven years, four months. Hernandez appealed from the judgment (G050943). The court also terminated Hernandez’s probation in an unrelated case and he later appealed from that judgment as well (G052606).

In March 2016, Hernandez filed a petition to reduce his felony convictions to misdemeanors under Proposition 47. He argued that if a stolen vehicle is valued at $950 or less, a petitioner convicted of either Vehicle Code section 10851 or section 496d is eligible for relief under section 1170.18, subdivision (a).

In May 2016, the trial court conducted an eligibility hearing. Defense counsel was present at the hearing; Hernandez was not present. Counsel said that he had contacted Hernandez by phone “and he has authorized me to proceed.” At the conclusion of the hearing, the court found “that these are not eligible charges.” The court also found that the value of the stolen vehicle “exceeds $950 from the evidence presented.” Hernandez appealed from the denial of his petition (G053574). This court later consolidated the three appeals.

II

DISCUSSION

Proposition 47 created a new resentencing provision that reduces penalties for nonserious, nonviolent crimes from felonies (or wobblers) to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Eligible individuals convicted and serving a sentence for such felonies “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.” (§ 1170.18, subd. (a).) Generally, if the underlying felony is an eligible theft offense and the value of the stolen property is $950 or less, then the charge must be reduced to a misdemeanor. (§ 490.2, subd. (a).)

Here, Hernandez filed a petition to reduce his Vehicle Code section 10851 and section 496d felony convictions. (1170.18, subd. (a).) The trial court conducted an eligibility hearing and found that the two charges were not eligible for relief. The court also found that value of the stolen vehicle exceeded $950 and denied the petition.

Hernandez contends there was reversible error because: (A) he was not personally present at the eligibility hearing; (B) the trial court’s factual determination that the vehicle’s value exceeded $950 was not supported by substantial evidence; (C) the court erred by deciding that section 496d and Vehicle Code section 10851 are not subject to reduction under Proposition 47; and (D) assuming a reduction of one or both of his felony charges to misdemeanors, Hernandez also contends that his probation revocation and sentencing in a related case should be remanded for reconsideration.

We shall briefly address each contention in turn, keeping in mind the eventual disposition (reversal with directions to allow Hernandez to file a new petition).

A. Personal Presence

Under our state Constitution, a “defendant in a criminal cause has the right to . . . be personally present with counsel.” (Cal. Const., art. I, § 15.) Similarly, under the confrontation clause of the Sixth Amendment of the federal Constitution, a defendant has the “right to be present in the courtroom at every stage of his trial.” (Illinois v. Allen (1970) 397 U.S. 337, 338.) A defendant’s state constitutional right to be present is generally coextensive with his or her federal constitutional right. (People v. Harris (2008) 43 Cal.4th 1269, 1306.)

There is also a statutory requirement that a defendant in a felony case “shall be personally present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence.” (§ 977, subd. (b)(1).) Further, a defendant “shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present.” (§ 977, subd. (b)(1), italics added.) A criminal defendant’s right to be present at a particular proceeding “depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant’s presence would contribute to the fairness of the proceeding.” (People v. Perry (2006) 38 Cal.4th 302, 312.)

We agree with Hernandez that the section 1170.18 eligibility hearing regarding the value of the stolen vehicle was critical to the outcome of the case. That is, Hernandez could not have had his felony convictions reduced to misdemeanors unless he proved that the value of the vehicle was $950 or less. (See People v. Bush (2016) 245 Cal.App.4th 992, 1001.) Further, we also agree with Hernandez that this a factual question. That is, we distinguish this type of eligibly determination from a purely legal question such as whether a particular crime may or may not be eligible for relief. (See also, e.g., People v. Fedalizo (2016) 246 Cal.App.4th 98, 109 [eligibility under Proposition 47 “is often obvious on the incontrovertible written record”].)

However, we need not analyze whether Hernandez’s presence would have contributed to the fairness of the proceeding because we are reversing on other grounds. We presume Hernandez will file a new petition under section 1170.18 and there will be a second contested eligibility hearing. Thus, Hernandez generally has a right to be present, absent a properly executed waiver. (§ 977, subd. (b)(1).)

B. Substantial Evidence

When ruling on a petition under Proposition 47, the trial court must first determine whether the defendant is eligible for resentencing. (People v. Bush, supra, 245 Cal.App.4th at p. 1001.) When an eligibility determination depends on the value of the stolen property, the property’s value “is a factual finding that must be made by the trial court in the first instance.” (People v. Contreras (2015) 237 Cal.App.4th 868, 892.) If a court makes such a factual finding in a Proposition 47 eligibility hearing, that ruling is reviewed for substantial evidence. (People v. Hallam (2016) 3 Cal.App.5th 905, 911.) “Evidence is sufficient if there is ‘substantial’ evidence to support the ruling. Such evidence ‘must be reasonable in nature, credible, and of solid value. . . .’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065.)

Here, the victim of the vehicle theft, Ramos, did not testify at the eligibility hearing; however, the People submitted the trial transcript to the trial court, which the court “received” without objection. Ramos had testified during the trial that he was uncertain about the value of his vehicle at the time of the theft, which occurred in July 2013. However, Ramos said that he had purchased the vehicle earlier that same year for $3,200.

Hernandez presented certified DMV records at the eligibility hearing that purportedly showed that someone had purchased the vehicle for $500, and that Ramos had reported to the DMV that he paid $500 for the vehicle in September 2011. And in his petition, Hernandez had attached as an exhibit a printout of a Kelly Blue Book Internet site that listed the “Trade-In Values” of a 1997 Acura Integra to be from $443 to $968. Hernandez also attached as an exhibit several photographs of Ramos’s vehicle. [2] The People did not object.

At the conclusion of the hearing, the trial court found that the value of Ramos’s vehicle exceeded $950. The court explained to Hernandez’s counsel: “The subsequent sales, like you said, are circumstantial evidence, but we have no idea what condition the vehicle was in at that point. And the testimony at trial that was received, to me, is the best indication. So the court relies on that.” (Italics added.)

Ramos’s trial testimony that he paid $3,200 for his vehicle in the same year Hernandez possessed and drove the vehicle (2013) is circumstantial evidence that its value exceeded $950 at the time of the theft. Moreover, a witness’ testimony at trial is the sort of evidence that a trier of fact can reasonably rely upon. Ordinarily, we would find substantial evidence to support the trial court’s ruling that the value of Ramos’s vehicle exceeded $950 at the time of the theft.

However, when the trial court announced its ruling at the hearing, it said, “The subsequent sales, like you said, are circumstantial evidence. . . .” (Italics added.) Both Hernandez and the Attorney General agreed at oral argument that there were no “subsequent sales” at issue in this case. In fact, the DMV documents submitted by Hernandez at the eligibility hearing purportedly showed that two years prior to the theft, Ramos had purchased his vehicle for $500.

It is possible that the trial court simply misspoke, but it is also possible that the court misunderstood Hernandez’s evidence. Out of an abundance of caution, we reverse and remand with directions to the trial court to allow Hernandez to file a new petition. (See § 1260 [an appellate court “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances”].)

C. Eligibility of the Offenses under Proposition 47

As we write this opinion, there remains a legal question as to whether section 496d and Vehicle Code section 10851 are eligible offenses under Proposition 47. If, after a second eligibility hearing, the trial court again decides that Ramos’s vehicle exceeded $950 at the time of the theft, the legal question will be moot.

However, if the trial court decides that the value of the stolen vehicle at the time of the theft was $950 or less, the resolution of the legal question will be dispositive. At this time, we need not to speculate. We trust that the parties will monitor the pending appellate cases and will brief and argue the issue to the court based on the state of the law at the time of the filing of the petition and the eligibility hearing. (See, e.g., People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)

D. Probation Revocation and Resentencing

Hernandez contends that his probation revocation and sentencing in a related case, should be remanded for reconsideration (G052606). But this issue will only arise if the trial court reduces his felony convictions to misdemeanors at a new eligibility hearing. Thus, we need not address the issue in this consolidated appeal.

III

DISPOSITION

The judgment at the eligibility hearing is reversed (G053574). We remand with directions to the trial court to allow Hernandez to file a new petition under section 1170.18, and to conduct a second eligibility hearing. In all other aspects, the remaining judgments are affirmed (G050943, G052606).

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.