Filed 9/21/17 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MANUEL MARTINEZ, Defendant and Appellant.

H043463 (Santa Cruz County Super. Ct. No. F16740)

I. Introduction

Defendant Anthony Manuel Martinez pleaded no contest to a felony violation of Vehicle Code section 10851, subdivision (a) (hereafter Vehicle Code section 10851(a)). Defendant was placed on probation, which was terminated after he violated probation several times.

Defendant subsequently filed an application with the trial court pursuant to Penal Code section 1170.18, subdivision (f),[1] which was enacted as part of Proposition 47, to have his felony conviction redesignated as a misdemeanor. The court denied the application after determining that a Vehicle Code section 10851(a) offense may not be redesignated as a misdemeanor under section 1170.18 and because the value of the vehicle at issue was more than $950. On appeal, defendant contends that the trial court erred by denying the application.[2]

For reasons that we will explain, we will affirm the order.

II. BACKGROUND

A. Vehicle Code Section 10851(a) Conviction

In 2008, defendant was charged by complaint with a felony violation of Vehicle Code section 10851(a). The complaint alleged that defendant “did unlawfully drive and take a certain vehicle, . . . [a] 1991 Chevrolet, ‘1500’ pickup, . . . then and there the personal property of [the victim] without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.” Defendant pleaded no contest and was placed on probation for three years. The court ordered defendant to pay various fines and fees and made a general order of restitution, requiring defendant to make restitution to the victim “n an amount and manner to be determined plus a 10% collection fee through [¶] the Probation Department.” Defendant signed the probation order, indicating his understanding and agreement to the terms and conditions set forth in the order.

B.[i] Probation Violations for Failure to Pay Restitution

Defendant violated probation several times. Relevant here, in early 2009, the probation department submitted to the trial court a supplemental report and petition alleging that defendant had violated his probation. The probation department stated that defendant’s probation terms included that he “[p]ay restitution to the victim . . . through Probation as directed” in the amount of “$1100.00.” The probation department alleged that defendant was in violation of probation because he, among other things, (1) absconded, (2) “[f]ailed to pay restitution” of $1,100, and (3) failed to pay a fine. The probation department further indicated that defendant was transient, that he appeared to be struggling with a drug problem, that “he ha[d] not paid anything toward his restitution to the victim in this case,” and that he still owed the entire amount of victim restitution of $1,100. The trial court revoked defendant’s probation and a bench warrant was issued. The bench warrant indicated that defendant had “fail[ed] to comply with [the] terms of probation, to wit: absconding/restitution/fine.” In mid-2009, defendant admitted violating his probation. The trial court reinstated probation on modified terms, including additional jail time.

In late 2009, the probation department submitted another supplemental report and petition alleging that defendant had violated his probation. The probation department alleged that defendant had, among other things, failed to pay victim restitution and that he still owed $1,100. The court found defendant in violation of probation and reinstated probation on modified terms.

In early 2010, the probation department submitted a supplemental report and petition alleging that defendant had violated his probation. The probation department again alleged that defendant had, among other things, failed to pay victim restitution and that he still owed $1,100. In early 2011, the trial court, the Honorable Ariadne J. Symons, found defendant in violation of probation. The court reinstated probation on modified terms. Prior to the proceedings involving this probation violation, various judges other than Judge Symons had presided over defendant’s case.

On June 7, 2011, defendant appeared before Judge Symons and was advised of another alleged violation of his probation. It was reported to the court that defendant had been released from the Department of Corrections and Rehabilitation on May 14, 2011, and was on parole. The court terminated defendant’s probation as unsuccessful. The court also ordered the restitution owing to the victim in the amount of $1,100 be reduced to a civil judgment.

C. Application for Redesignation as a Misdemeanor

In 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors instead of felonies or alternative felony misdemeanors. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308 (Shabazz); see § 1170.18, subd. (a).) Proposition 47 also added a new statute, section 490.2, which generally defines petty theft as the theft of property valued at $950 or less. (§ 490.2, subd. (a); Shabazz, supra, at p. 308.) In addition, Proposition 47 added section 1170.18, which permits a defendant to file a petition or an application to have his or her felony conviction resentenced to or redesignated as a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g).)

In early 2016, defendant filed an application with the trial court pursuant to section 1170.18, subdivision (f), seeking to have his felony Vehicle Code section 10851 conviction redesignated as a misdemeanor. The prosecution filed opposition, contending that a Vehicle Code section 10851 conviction is not eligible for redesignation as a misdemeanor under Proposition 47.

Defendant subsequently filed a memorandum in support of his application for redesignation. He contended that a Vehicle Code section 10851(a) conviction may be redesignated as misdemeanor petty theft under Proposition 47 where the value of the property is $950 or less. Defendant also argued that the police reports described the vehicle at issue as a 1991 Chevrolet “1500” pickup with 181,714 miles on it, being in poor condition with poor paint and “ ‘dings, dents & scratches 360 degrees,’ ” and having a value of $500.

On April 12, 2016, a hearing was held before the Honorable John Salazar. The court determined that a Vehicle Code section 10851 offense “does not fall under Prop 47.” The court explained that an “additional problem” for defendant was that there was a restitution order for $1,100, which was more than the $950 limit for petty theft.

Defendant argued that the “facts” he set forth from the police report indicated the vehicle was worth $500. The trial court expressed skepticism stating, “The police officer at the scene gave a rough estimate of $500 based on, I doubt, the Blue Book, or any sort of values. [¶] Isn’t that how the $500 was reached, someone looking at the car and saying, ‘I think that’s worth $500’?”

Defendant contended that the mileage, the year, and the condition of the vehicle were “indicative of a vehicle that was worth about $500.” The court questioned that contention, asking, “Based on whose research? A stab in the dark?” The court stated that it “certainly wouldn’t expect to set an amount of restitution based on those factors without someone looking to see what the market value might be based upon those factors, as opposed to a guess.” The court believed that “the stronger piece of evidence here is Judge Symons concluded, based on, I’m assuming, evidence that the value of the vehicle or the repair to it—I’m not sure which—was $1,100. All I have is an entry in the file that restitution was set at $1,100. No additional information. [¶] And based on that, it’s reasonable for the Court to believe it was worth at least that.” The court acknowledged that “[s]ometimes we add restitution from a different case onto a probation matter, but, again, that’s speculation. [¶] What I have in the file is black and white: She ordered $1100, and [section] 10851 [of the Vehicle Code] does not fall under Prop 47.” In a written order filed that same date, the court denied defendant’s application, determining that his offense was ineligible for redesignation and that the value of the vehicle was over $950.

III. DISCUSSION

Defendant contends that a conviction for violating Vehicle Code section 10851(a) may be redesignated as misdemeanor petty theft under section 490.2. He also contends that the trial court abused its discretion in determining that the value of the vehicle was more than $950.

The Attorney General contends that a violation of Vehicle Code section 10851 is not an offense that may be redesignated as a misdemeanor under Proposition 47. The Attorney General also argues that even if a Vehicle Code section 10851 offense may be redesignated as a misdemeanor, defendant failed to meet his burden of showing that the value of the vehicle was $950 or less.

A. Whether a Felony Vehicle Code Section 10851(a) Conviction May Be Redesignated as Misdemeanor Petty Theft

Whether defendant’s Vehicle Code offense may be redesignated as a misdemeanor turns on the proper construction of Proposition 47. When interpreting an initiative such as Proposition 47, “we apply the same principles governing statutory construction. We first consider the initiative’s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot measure. [Citation.]” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

Regarding the language of Proposition 47, one of the criteria for redesignating a felony conviction as a misdemeanor is that the defendant “would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense.” (§ 1170.18, subd. (f); see also id., subd. (a).) In this case, defendant was convicted of violating Vehicle Code section 10851(a).[3] Proposition 47 did not amend Vehicle Code section 10851. Both before and after the enactment of Proposition 47 in 2014, Vehicle Code section 10851(a) has provided that unlawfully driving or taking a vehicle is punishable as either a felony or a misdemeanor. Thus, a Vehicle Code section 10851(a) offense, when charged as a felony as in this case and as admitted by defendant’s no contest plea, is still a felony after Proposition 47. Defendant therefore does not satisfy one of the criteria for redesignation as a misdemeanor under Proposition 47. (§ 1170.18, subd. (f); see also id., subd. (a).)

Defendant contends that the reference to “obtaining any property by theft” in section 490.2, which was added by Proposition 47, applies to a felony Vehicle Code section 10851(a) conviction such that the conviction may be redesignated as a misdemeanor under section 490.2.

Before considering the specific language of section 490.2, which refers to theft, grand theft, and petty theft, we first consider the general relationship between these legal concepts. “Section 484, subdivision (a), defines the crime of theft: ‘Every person who shall feloniously steal, take, . . . or drive away the personal property of another . . . is guilty of theft.’ ” (People v. Ortega (1998) 19 Cal.4th 686, 693 (Ortega).) The crime of theft is divided into two degrees, grand theft and petty theft. (§ 486; Ortega, supra, at p. 696.) Section 487 and several other statutes define the forms of theft that constitute grand theft. (See People v. Cuellar (2008) 165 Cal.App.4th 833, 837; Ortega, supra, at p. 696.) Section 488 provides that “[t]heft in other cases is petty theft.”

“The distinctions between grand and petty theft according to the Penal Code are in the type of article stolen, whether the article was taken from the person of another and in the value thereof. [Citations.]” (Gomez v. Superior Court (1958) 50 Cal.2d 640, 645.) For example, section 487 defines grand theft to include the taking of personal property worth more than $950. (Id., subd. (a).) Section 487 also defines grand theft to include the taking of an automobile. (Id., subd. (d)(1).)

Section 490.2, which was added by Proposition 47, states: “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 . . . .” (§ 490.2, subd. (a).) Section 490.2 thus amends the definition of grand theft, as set forth in section 487 or any other provision of law defining grand theft, to make some thefts that would have previously been grand theft to now be petty theft.

Defendant was convicted of violating Vehicle Code section 10851(a). Vehicle Code section 10851 is not a “provision of law defining grand theft” (§ 490.2, subd. (a)). Further, the proscriptions in Vehicle Code section 10851(a) against driving or taking a vehicle are broader than the crime of theft of an automobile (§§ 484, 487, subd. (d)(1)). A theft is committed only if the defendant intends to “ ‘permanently deprive’ ” the victim of his or her property. (People v. Abilez (2007) 41 Cal.4th 472, 510.) In contrast, a defendant may violate Vehicle Code section 10851(a) by taking a vehicle with the intent to permanently deprive the owner of possession, or by driving it with the intent only to “ ‘temporarily deprive’ ” the owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza), italics added; see id. at p. 871.) In other words, Vehicle Code section 10851(a) “ ‘prohibits driving as separate and distinct from the act of taking.’ ” (Garza, supra, at p. 876.) Given that Vehicle Code section 10851(a) may be violated with or without a defendant committing theft, and given that Vehicle Code section 10851(a) does not “defin[e] grand theft” or petty theft (§ 490.2, subd. (a)), we are not persuaded that the enactment of section 490.2, which simply changed the distinction between a grand theft and a petty theft, operates along with section 1170.18 to require the redesignation of a felony Vehicle Code section 10851(a) offense to misdemeanor petty theft.

The ballot materials for Proposition 47 support our construction that the electorate intended certain grand thefts to be redesignated as misdemeanor petty thefts, rather than providing for the redesignation of any crime that could have been charged as theft but was not so charged, such as some violations of Vehicle Code section 10851(a). The Legislative Analyst’s analysis of Proposition 47, which was printed in the ballot materials, states the following regarding Proposition 47: “This measure reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdmeanors. . . . Specifically, the measure reduces the penalties for the following crimes: [¶] [] Grand Theft. Under current law, theft of property worth $950 or less is often charged as petty theft, which is a misdemeanor or an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occur if the crime involves the theft of certain property (such as cars) . . . . This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically such crimes would no longer be charged as grand theft solely because of the type of property involved . . . .” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, some italics added (hereafter Guide).) Thus, the electorate must have understood and intended that the “[s]pecifically” listed crime of grand theft (ibid.), including grand theft auto (§ 487, subd. (d)(1)), would, upon passage of Proposition 47, be charged, sentenced, and/or redesignated as misdemeanor petty theft if the property was worth less than $950. As we have explained, Vehicle Code section 10851(a) is not a provision of law defining grand theft. Moreover, nothing in the ballot materials suggests that Proposition 47 was intended to redesignate other crimes that could have been charged as grand theft auto, but were not so charged, such as some violations of Vehicle Code section 10851(a).

Defendant observes that section 666, which was amended by Proposition 47 and which provides the punishment for a defendant convicted of petty theft with a prior conviction, expressly refers to a conviction for “auto theft under Section 10851 of the Vehicle Code.” (§ 666, subd. (a), italics added.) According to defendant, the electorate thus “made clear that for the purpose of the Proposition violations of [Vehicle Code] section 10851 are ‘thefts.’ ”

Defendant’s argument is unpersuasive. Before and after Proposition 47, section 666 has referred to convictions for “petty theft, grand theft, . . . [and] auto theft under Section 10851 of the Vehicle Code.” (§ 666, subd. (a); Stats. 2013, ch. 782, § 1.) We are not persuaded that the enactment of section 490.2, which simply changed the definition of what constitutes petty theft versus grand theft, means that the electorate intended a Vehicle Code section 10851 conviction to be redesignated as a theft conviction under sections 484 and 490.2.

Defendant observes that the purposes of Proposition 47 include maximizing alternatives to prison for “nonserious, nonviolent crime.” (Guide, supra, text of Prop. 47, § 2, p. 70.) We do not believe, however, in view of the text of section 490.2 and Vehicle Code section 10851(a), and the ballot materials for Proposition 47, that Proposition 47 can be construed to support the conclusion that felony violations of Vehicle Code section 10851(a) may be redesignated as misdemeanor petty thefts under section 490.2. (See Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298 [“the rule of liberal construction . . . should not be used to defeat the overall statutory framework and fundamental rules of statutory construction”].)

Defendant next contends that it would be anomalous to allow grand theft auto (§ 487, subd. (d)(1)) to be redesignated as misdemeanor petty theft under section 490.2 if the value of the vehicle is less than $950, but not to allow the redesignation of a Vehicle Code section 10851(a) offense where the value of the vehicle is also less than $950. As we have explained, Vehicle Code section 10851(a) proscribes a broader range of conduct than just the theft of a vehicle. Depending on the facts of the offense, a violation of Vehicle Code section 10851(a) may be a more serious offense than grand theft auto.

B. Value of the Vehicle

Even assuming that a conviction under Vehicle Code section 10851(a) falls within the purview of section 490.2, we determine that the trial court did not err in denying defendant’s application based on a determination that the value of the vehicle was more than $950.

On this issue, defendant contends that his application for redesignation was sufficient to establish a prima facie case for relief because his application stated that his offense involved less than $950 and the application was signed under penalty of perjury by defense counsel. He also emphasizes that the prosecutor did not dispute that the vehicle was worth less than $950. Defendant further argues that “[n]othing in the record establishes that Judge Symons or any judge ever set restitution at $1,100 or any other fixed amount.” Defendant contends that, even assuming the record establishes a restitution award of $1,100, that award might include more than the value of the vehicle, such as loss of use or lost wages.

The Attorney General contends that defendant’s application lacked supporting evidence and therefore he failed to meet his burden of showing eligibility for relief. The Attorney General states that, although defendant argued below that the police report indicated the vehicle was worth $500, the police report was not made a part of the record. The Attorney General also argues that there was a restitution order for $1,100, and that the trial court reasonably relied on that order in determining the vehicle was valued at more than $950. The Attorney General further contends that defendant failed to establish that the restitution order encompassed more than the value of the vehicle, and thus the trial court could reasonably attribute the entire amount of the restitution order to the value of the vehicle.

On a Proposition 47 application, the defendant has the ultimate burden of proving eligibility for redesignation as a misdemeanor. (People v. Romanowski (2017) 2 Cal.5th 903, 916.) “In some cases, the uncontested information in the petition and record of conviction may be enough for the [defendant] to establish this eligibility.” (Ibid.)

“ ‘The trial court’s decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutory criteria for relief’ [citation], and we review the trial court’s factual findings for substantial evidence [citations].” (People v. Hallam (2016) 3 Cal.App.5th 905, 911.) In this case, the trial court determined that defendant failed to meet his burden of showing that the value of the vehicle was $950 or less. “[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279 (Shaw), quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 571; accord In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

Assuming, without deciding, that the trial court could have concluded that defendant met his burden of showing that the value of the vehicle was $950 or less based on (1) the statement to that effect in defendant’s application, (2) defendant’s representation that the police report contained facts to that effect, and (3) the prosecution’s failure to object to defendant’s valuation, defendant nevertheless fails to demonstrate error by the court in reaching a contrary determination. Defendant does not cite authority for the proposition that the court was required to accept his representations regarding the value of the vehicle, or that the court was precluded from considering court records on the issue of value. To the contrary, it has been stated that, in evaluating an application under section 1170.18, a “trial court act[s] within its discretion to consider evidence contained in court records and to set an evidentiary hearing to establish the facts underlying [the defendant’s] conviction.” (People v. Huerta (2016) 3 Cal.App.5th 539, 543 (Huerta).) In this case, the court properly considered the court records and held an evidentiary hearing to establish the facts underlying defendant’s conviction.

The court records indicate that defendant was ordered to pay victim restitution of $1,100 for his Vehicle Code section 10851(a) offense. When defendant was initially placed on probation in 2008, the trial court made a general order of restitution. At that time, the court ordered defendant to pay restitution to the victim “n an amount and manner to be determined plus a 10% collection fee through [¶] the Probation Department.” It is apparent that the amount of restitution was subsequently determined to be $1,100, and that the court, the probation department, and defendant understood this to be the amount of ordered restitution. In this regard, the record reflects that defendant admitted violating his probation and/or was found in violation of his probation by the court three times between 2009 and 2010 for failing to pay any portion of that amount. The record also reflects that the court ordered the unpaid restitution of $1,100 be reduced to a civil judgment in 2011, when defendant’s probation was terminated as unsuccessful.

In view of this record, the court at the hearing on defendant’s application for redesignation of his Vehicle Code section 10851(a) offense could reasonably conclude that defendant’s offense involved a vehicle valued at more than $950. Moreover, it was reasonable for the court to conclude that the entire amount of ordered restitution was for the value of the vehicle in the absence of any evidence from defendant that the ordered restitution included reimbursement for some other category of loss by the victim. In view of this record, defendant fails to establish that “the evidence compels a finding in favor of [him] as a matter of law,” that is, that the evidence compels a finding that his offense was based on a vehicle valued at $950 or less. ([i]Shaw, supra, 170 Cal.App.4th at p. 279.)

For the first time in his reply brief on appeal, defend contends that the trial court abused its discretion by not giving him an opportunity to amend the application to present evidence. We normally do not consider arguments presented for the first time in a reply brief. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [“a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before”].) Moreover, defendant fails to demonstrate a “ ‘reasonable possibility’ ” that the application can be amended to cure its defect concerning the value of the vehicle. (Huerta, supra, 3 Cal.App.5th at p. 543.) In his reply brief on appeal, defendant points to the valuation of the vehicle by the police, which the trial court already rejected as simply a guess by the police, and defendant fails to offer anything other than speculation that the $1,100 victim restitution award does not accurately represent the value of the vehicle.

In sum, we determine that defendant’s felony conviction for violating Vehicle Code section 10851(a) is not eligible for redesignation as a misdemeanor under Proposition 47. We also determine that the trial court did not err in concluding that the value of the vehicle was more than $950. Accordingly, the court properly denied defendant’s application. (§§ 1170.18, subds. (f) & (g); 490.2, subd. (a).)

IV. DISPOSITION

The April 12, 2016 order is affirmed.

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