Filed 4/24/18 P. v. McGill CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ANTHONY MCGILL,

Defendant and Appellant.

F075840

(Super. Ct. Nos. BF146594A, BF148522A)


OPINION

THE COURT*
APPEAL from orders of the Superior Court of Kern County. Michael G. Bush, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-


Appointed counsel for defendant Mario Anthony McGill asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant did not respond. On review, we consider whether the trial court properly denied defendant’s petitions/applications for resentencing under Penal Code section 1170.18. We conclude it did and we find no other arguable issues on appeal.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On March 1, 2013, in case No. BF146594A, the Kern County District Attorney charged defendant with willfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (§ 496d, subd. (a)). Various other allegations were included.
On May 16, 2013, in case No. BF148522A, defendant was charged with failing to appear in court after being charged in BF146594A and being released on bail (§ 1320.5). Various other allegations were included.
On October 4, 2013, defendant appeared in court, pled no contest to violating Vehicle Code section 10851, and was sentenced to 16 months in jail, to be served concurrently with the term in a previous case. Defendant also pled no contest to failing to appear (§ 1320.5) and was sentenced to 16 months in jail.
On April 19, 2017, defendant filed in propria persona petitions in the trial court, requesting that his felony convictions under Vehicle Code section 10851 and section 1320.5 be reduced to misdemeanors pursuant to section 1170.18 (Proposition 47). Defendant’s petitions alleged he had been convicted of violating Vehicle Code section 10851 and section 1320.5, had served the 16-month sentences, and did not have any disqualifying prior convictions.
On April 24, 2017, the prosecution opposed the petitions, asserting that the offenses were not eligible under section 1170.18.
On May 24, 2017, the trial court denied the petitions.
On June 20, 2017, defendant filed a notice of appeal.
DISCUSSION
“ ‘On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act ….’ [Citation.] ‘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. Morales (2016) 63 Cal.4th 399, 404.) For example, some offenses converted to misdemeanors are theft when the value of the stolen property does not exceed $950 (§ 490.2, subd. (a)), receiving stolen property when the value of the stolen property does not exceed $950 (§ 496, subd. (a)), and shoplifting when the value of the property taken does not exceed $950 (§ 459.5, subd. (a)).
Proposition 47 created a new resentencing provision: section 1170.18. “Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092 (Rivera).)
“Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions ‘designated as misdemeanors.’ (§ 1170.18, subd. (f); see id., subds. (g)-(h).)” (Rivera, supra, 233 Cal.App.4th at p. 1093.)
I. Vehicle Code Section 10851
There has been a split in the courts as to whether Vehicle Code section 10851 convictions are categorically ineligible for relief under section 1170.18. We had decided they are. (See, e.g., People v. Sauceda (2016) 3 Cal.App.5th 635, review granted November 30, 2016, S237975.) The California Supreme Court, however, has recently decided they are not. (People v. Page (2017) 3 Cal.5th 1175, 1188 (Page)). Page concluded “the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47. Penal Code section 1170.18 … does not expressly refer to Vehicle Code section 10851, but it does permit resentencing to a misdemeanor under Penal Code section 490.2 … for theft of property worth $950 or less. As this court has previously explained, Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle. [Citation.] A person convicted before Proposition 47’s passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less.” (Page, at p. 1180.)
“A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility.” (Page, supra, 3 Cal.5th at p. 1188; People v. Romanowski (2017) 2 Cal.5th 903, 916 [“The ultimate burden of proving section 1170.18 eligibility lies with the petitioner.”]; People v. Johnson (2016) 1 Cal.App.5th 953, 961, 964 [petition properly denied where defendant failed to satisfy burden of showing value of property was less than $950]; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137; People v. Sherow (2015) 239 Cal.App.4th 875, 880 [“We think it is entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based”; “A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.”]; People v. Rivas-Colon (2015) 241 Cal.App.4th, 444, 449 [burden on petitioner to show value of stolen property was less than $950].) “To establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less (§ 490.2, subd. (a)), but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation].” (Page, at p. 1188, fn. omitted.)
Here, defendant failed to carry his burden. As in Page, “[d]efendant’s petition included no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle’s value was $950 or less. The petition was therefore properly denied.” (Page, supra, 3 Cal.5th at p. 1189.) Consequently, we affirm the trial court’s order “without prejudice to subsequent consideration of a properly filed petition.” (People v. Sherow, supra, 239 Cal.App.4th at p. 881.)
II. Section 1320.5
Section 1320.5 provides: “Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. Upon a conviction under this section, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment pursuant to subdivision (h) of Section 1170, or in the county jail for not more than one year, or by both the fine and imprisonment. Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court.” “As reflected by its terms, section 1320.5 specifies no limitation whatsoever on the circumstances of its operation.” (People v. Walker (2002) 29 Cal.4th 577, 582.)
Section 1320.5’s “legislative history states explicitly that its purpose is ‘to deter bail jumping.’ (Sen. Com. on Judiciary, analysis of Sen. Bill No. 395 (1983-1984 Reg. Sess.) p. 1; Sen. Republican Caucus, analysis of Sen. Bill No. 395 (1983-1984 Reg. Sess.) as amended June 16, 1983, p. 1.) The language and history of section 1320.5 also reflect the Legislature’s view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered. (§ 1320.5 [every person who is ‘charged with or convicted of’ commission of a felony while released from custody on bail is subject to conviction (italics added)]; Assem. Com. on Crim. Law & Pub. Safety, analysis of Sen. Bill No. 395 (1983-1984 Reg. Sess.) p. 2 [observing that the proposed legislation would subject a defendant who failed to appear on an underlying felony charge to conviction and sanctions, ‘even if the defendant was the victim of misidentification or was acquitted on the underlying charge’].)” (People v. Walker, supra, 29 Cal.4th at p. 583.)
Accordingly, defendant’s section 1320.5 felony conviction is not eligible for reduction under section 1170.18, even if his Vehicle Code section 10851 conviction is ultimately reduced to a misdemeanor under section 1170.18. The trial court properly denied defendant’s petition.
DISPOSITION
The order denying defendant’s petition for resentencing of his Vehicle Code section 10851 felony conviction in case No. BF146594A is affirmed without prejudice to subsequent consideration of a properly supported petition. The order denying defendant’s petition for resentencing of his Penal Code section 1320.5 felony conviction in case No. BF148522A is affirmed. In all other respects, the judgments are affirmed.