Filed 12/29/17 P. v. Joaquin CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA JAMES JOAQUIN,
Defendant and Appellant.

A144088

(Sonoma County
Super. Ct. No. SCR-655301)


Defendant Joshua James Joaquin appeals from his conviction of one felony count of driving or taking a vehicle without the owner’s consent in violation of section 10851, subdivision (a) of the Vehicle Code. He contends that the trial court erroneously denied his pre-plea motion to reduce the charges against him to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). We conclude that the procedure employed to determine the applicability of Proposition 47 was unauthorized and, accordingly, reverse the judgment and remand the matter to the trial court for further proceedings as set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
By criminal complaint filed on August 29, 2014, defendant was charged with one felony count of driving or taking a vehicle without the owner’s consent in violation of section 10851, subdivision (a) of the Vehicle Code and one felony count of receiving a stolen vehicle in violation of section 496d, subdivision (a) of the Penal Code. The complaint further alleged that defendant had previously been convicted of a serious or violent felony under the Three Strikes Law.
Subsequently, on November 4, 2014, the voters approved Proposition 47, and it became effective the next day. (People v. Bush (2016) 245 Cal.App.4th 992, 1000.) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
On December 24, 2014, following the enactment of Proposition 47, defendant filed a motion to reduce the charges against him to misdemeanors, arguing that they qualified for misdemeanor treatment because the value of the vehicle at issue did not exceed the initiative’s threshold of $950. On January 9, 2015, the prosecution filed written opposition to the motion, arguing that the charges against defendant were categorically ineligible for Proposition 47 treatment and, alternatively, that value of the vehicle exceeded $950.
On January 15, 2015, the trial court denied the motion and confirmed an upcoming date for the preliminary hearing. It concluded defendant was “not eligible based on the charges alone,” noting that its ruling was not based on the value of the vehicle. At this point, the parties reached a negotiated disposition, under which defendant agreed to enter a no contest plea to one felony count of driving or taking a vehicle without the owner’s consent in violation of section 10851, subdivision (a) of the Vehicle Code, and the prosecution agreed to dismiss the remaining charges against him. The plea was expressly conditioned on defendant’s right to appeal the trial court’s ruling on the Proposition 47 motion. The trial court accepted defendant’s no contest plea and proceeded to issue a certificate of probable cause on the Proposition 47 issue.
DISCUSSION
Defendant’s pre-plea motion to reduce the charges against him from felonies to misdemeanors was not authorized and improperly conflates the retrospective and the prospective applications of Proposition 47. The distinction between the two is critical.
Defendants who, at the time Proposition 47 was enacted, were already serving sentences for offenses redesignated as misdemeanors or had already completed their sentences for such offenses may file petitions seeking retrospective relief. (Pen. Code, § 1170.18. subds. (a), (f); People v. Bush, supra, 245 Cal.App.4th at p. 1000.) When such a petition is filed, the defendant bears the burden of proving that he or she is eligible for retrospective relief. (People v. Sherow (2015) 239 Cal.App.4th 875, 878–880.)
Defendants not yet sentenced when Proposition 47 was enacted, by contrast, are automatically entitled to the prospective benefit of the initiative—namely, its redesignation of certain offenses as misdemeanors. (People v. Bush, supra, 245 Cal.App.4th at p. 1000; People v. Rivera, supra, 233 Cal.App.4th at p. 1091.) In such cases, the prosecution must prove beyond a reasonable doubt that the defendant is guilty of a felony rather than a misdemeanor as part of its case-in-chief. (See, e.g., People v. Sherow, supra, 239 Cal.App.4th at pp. 879–880 [post-Proposition 47, prosecution must prove the value of the items stolen exceeds $950].)
Because defendant here had not yet been convicted or sentenced when Proposition 47 was enacted, the present matter involves prospective and not retrospective application of the initiative. In this context, if defendant wished to contest the prosecution’s decision to charge him with felonies, he should have awaited the preliminary hearing and, if held to answer, challenged the sufficiency of the evidence supporting those charges, as authorized under Penal Code section 995. If, following the denial of such a motion, defendant later pleaded guilty to felonies, he would have been precluded from challenging the denial of the Penal Code section 995 motion on appeal even if he had secured a certificate of probable cause. (See People v. Padfield (1982) 136 Cal.App.3d 218, 227 & fn. 7.)
There is simply no authority, statutory or otherwise, for the pre-plea “motion to reduce” filed by defendant in this case, much less for an appeal following its denial. Indeed, were we to grant defendant’s request to remand the matter for an evidentiary hearing at which he would bear the initial burden of proof, we would improperly shift the burden of proof from the prosecution to the defense and mistakenly invite the trial court to resolve factual issues falling within the province of the jury.
In short, the trial court should have denied the pre-plea “motion to reduce” as procedurally improper and not on the merits. Ordinarily, we would affirm the trial court’s ruling on this alternative basis. In this case, however, defendant’s plea occurred only a few months after the enactment of Proposition 47. The plea was expressly conditioned on the mistaken premise that the underlying motion was a procedurally proper vehicle for addressing the applicability of the initiative and that the denial of the motion could be raised on a post-plea appeal, a misunderstanding shared by both parties and the trial court. Under these circumstances, defendant should be permitted to withdraw his felony plea should he so desire.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with instructions to vacate the no contest plea if defendant makes an appropriate motion within 30 days after the remittitur is issued. In that event, the trial court shall reinstate the original charges, if the prosecution so moves, and proceed to preliminary hearing and trial or make other appropriate dispositions. If no such motion to vacate the no contest plea is filed by defendant, the trial court is directed to reinstate the original judgment.



_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Siggins, J.