Filed 3/21/18 P. v. Ruiz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL ANGEL GALLO RUIZ,

Defendant and Appellant.
H044598
(Monterey County
Super. Ct. Nos. SS141057A &
SS141969A)

Defendant Miguel Angel Gallo Ruiz appeals from the denial of his applications to have two felony convictions of violating Vehicle Code section 10851, subdivision (a), designated as misdemeanors pursuant to Penal Code section 1170.18, subdivision (f). This court previously affirmed an order denying defendant’s petition for recall of sentence and sentencing of those convictions pursuant to section 1170.18, subdivision (a), without prejudice to consideration of a new petition. (See People v. Ruiz (Sept. 27, 2016, H041767) [nonpub. opn.] (case No. H041767).)
“Approved by the voters in 2014, Proposition 47 (the ‘Safe Neighborhoods and Schools Act’) reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less.” (People v. Page (2017) 3 Cal.5th 1175, 1179 (Page).)
Proposition 47 also added section 1170.18. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) “[S]ection 1170.18, subdivision (a), establishes procedures under which a person serving a felony sentence at the time of Proposition 47’s passage may be resentenced to a misdemeanor term if the person ‘would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense.’ (Pen. Code, § 1170.18, subd. (a).)” (Page, supra, 3 Cal.5th at p. 1179.) In addition, section 1170.18, subdivision (f), “provides a means for eligible defendants who have completed their sentences to have their convictions ‘designated as misdemeanors.’ ” (Page, supra, at p. 1185.)
“The eligibility criterion for relief under subdivision (f) [of section 1170.18] is the same as under subdivision (a) [of that section]: The defendant must be someone ‘who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense.’ (§ 1170.18, subd. (f).)” (Page, supra, 3 Cal.5th at p. 1185.) Thus, under section 1170.18, “defendants still serving felony sentences are resentenced under subdivision (b) pursuant to the listed statutes, while those who have completed their sentences and merely seek [by application] to have their offenses designated as misdemeanors (subd. (f)) will not be resentenced.” (Page, supra, at p. 1185.)
In Page, the California Supreme Court concluded that Vehicle Code section 10851 convictions are not categorically ineligible for relief under section 1170.18. (Page, supra, 3 Cal.5th at p. 1189.) Since the trial court erred in concluding that defendant’s convictions under Vehicle Code section 10851, subdivision (a), were categorically ineligible for relief under section 1170.18, we will reverse and remand for further proceedings consistent with Page.
I
Procedural History
In defendant’s previous appeal case No. H041767, he argued that “the trial court erred in denying his petition to have his vehicle theft convictions resentenced as misdemeanors pursuant to Proposition 47” pursuant to section 1170.18, subdivision (a), in Monterey County Superior Court, case Nos. SS141057A and SS141969A (SS141057A & SS141969A, respectively). This court concluded that “if a person took a vehicle worth $950 or less with the intent to permanently deprive the owner of its possession, such conduct is now petty theft [under section 490.2], and the conviction is eligible for resentencing as a misdemeanor under Proposition 47.” (Italics added.) This court stated: “Until we receive guidance from the Supreme Court, we will follow our reasoning in previous cases, and hold that a conviction of theft of a vehicle valued at under $950 under Vehicle Code section 10851 is eligible for resentencing under Proposition 47.” But the record did “not show that the stolen cars were each worth $950 or less.” Consequently, this court affirmed the trial court’s “order denying defendant’s petition to resentence his Vehicle Code section 10851 convictions to misdemeanors pursuant to Proposition 47 petition . . . without prejudice to subsequent consideration of a petition that demonstrates that the stolen cars were each valued at $950 or less.”
By applications filed on December 14, 2016, defendant sought to have the same two felony convictions of Vehicle Code section 10851, subdivision (a), designated as misdemeanors pursuant to section 1170.18, subdivisions (f) and (g). His applications stated he had completed the sentences imposed in those cases.
In each case, defendant submitted documentation in support of his applications. In case No. SS141057A, defendant provided copies of a Salinas Police Department stolen vehicle report and a California Highway Patrol (CHP) vehicle report. The police report indicated that in 2014, defendant violated Vehicle code section 10851, subdivision (a), by taking a white 1991 Mazda SUV with an “Owner’s Value” of $950. The vehicle was recovered. The CHP report also indicated that the vehicle’s value was $950.
In case No. SS141969A, defendant provided copies of a Salinas Police vehicle report, a printout of an online Kelly Blue Book (KBB) valuation, and various certified State of California Department of Motor Vehicles (DMV) documents. The police report indicated that in 2014, defendant violated Vehicle code section 10851, subdivision (a), by taking a black 1994, 2-door Toyota Camry, reportedly in bad condition. The vehicle was recovered and returned to owner. The KBB valuation indicated that a 1994 “SE Coupe 2D” Toyota Camry with mileage of 157,000 had a trade-in value of $549 and a trade-in range of $335 to $762. The DMV documents indicated that subsequently in 2014, the vehicle (reportedly with mileage of 268,908) was sold to Pick-N-Pull for $396.
The District Attorney’s written response to defendant’s application in both cases was that the specified offense was ineligible for relief, not that the value of the property exceeded $950.
On April 6, 2017, the superior court denied defendant’s applications for designation in case Nos. SS141057A and SS141969A without prejudice. The court observed that there was a split of authority in the appellate courts as to whether a conviction under section 10851, subdivision (a), was eligible for relief under Proposition 47 and that the issue was pending before the California Supreme Court. The court stated, “Let’s wait and see what the State Supreme Court rules, then you can always bring them again.” In its written order, the court determined that the offenses were “not eligible for the requested relief,” and it denied the applications without prejudice.
II
Discussion
A. Governing Law
Section 1170.18, subdivision (f), states: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).) “Unless the applicant requests a hearing, a hearing is not necessary to grant or deny an application filed under subdivision (f).” (§ 1170.18, subd. (h).)
The issue whether Proposition 47, which includes sections 490.2 and 1170.18, applies to a violation of Vehicle Code section 10851, subdivision (a), (unlawful taking or driving of a vehicle) was resolved in Page. A person is guilty of a crime under Vehicle Code section 10851, subdivision (a), if the person “drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.” (Italics added.) Thus, “[a] person can violate section 10851(a) ‘either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).’ [Citations.]” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) The “unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete” (id. at p. 871), and “a conviction under section 10851(a) for posttheft driving is not a theft conviction.” (Ibid.) The offense is also not a theft when the person acts “with intent only to deprive the owner temporarily of possession.” (Id. at p. 1183.) “Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [Citation.]” (Ibid.)
In Page, the California Supreme Court concluded that “lower courts [had] erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47.” (Page, supra, 3 Cal.5th at p. 1180.) The court observed that, “[b]y its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense.” (Id. at p. 1183.) It stated that “[w]hatever difficulties of proof defendants seeking relief under section 1170.18 may face, Vehicle Code section 10851 convictions are not categorically ineligible for resentencing, and defendants serving sentences for that offense are due an opportunity to prove their eligibility.” (Id. at p. 1189.)
The Supreme Court held in Page that “obtaining an automobile worth $950 or less by 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.) “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].” (Id. at p. 1188, fn. omitted.)
The criteria to establish eligibility to have a Vehicle Code section 10851 conviction designated a misdemeanor after completing one’s sentence is the same. (Page, supra, 3 Cal.5th at p. 1185.) “The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.)” (People v. Romanowski (2017) 2 Cal.5th 903, 916.)
In Page, the Supreme Court further explained: “A resentencing court should ordinarily be able to determine from the record of conviction whether the Vehicle Code section 10851 conviction was based on vehicle theft, as opposed to posttheft driving. Where the trial testimony or factual basis documentation for a negotiated plea (see Pen. Code, § 1192.5) shows posttheft driving—that is, driving the vehicle following a ‘substantial break’ after the vehicle had initially been stolen—the defendant cannot establish eligibility under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving, and therefore would fail to establish that the defendant would only have been guilty of a misdemeanor (petty theft under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the offense. (But cf. Romanowski, supra, 2 Cal.5th at p. 916 [recognizing that in some cases the facts material to eligibility may not be established by the record of conviction or the uncontested petition and an evidentiary hearing may be warranted upon presentation of prima facie proof].)” (Page, supra, 3 Cal.5th at p. 1189.)
B. Analysis
Defendant argues that remittitur in the prior appeal and the law of the case required the trial court to grant his applications for misdemeanor designation, and he asks that we remand the matters and direct the trial court to follow the remittitur and the law of the case. He also contends that the evidence was insufficient to support the trial court’s ruling that he was not entitled to have his vehicle theft convictions reduced to misdemeanors.
In their appellate brief, which predated the Supreme Court’s Page opinion, the People argue that the trial court’s order denying defendant’s applications without prejudice did not violate the remittitur and that the law of the case doctrine does not apply because its application would lead to unjust results. They also maintain that in denying the applications, the trial court made no factual findings that are reviewable for substantial evidence.
1. Remittitur
“[T]he essence of remittitur is the returning or revesting of jurisdiction in an inferior court by a reviewing court.” (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10.) “Once we finally resolve a criminal appeal, and after the time has passed for the Supreme Court to grant review, we issue a remittitur to remit the appellate court judgment to the trial court, to divest the appellate court of further jurisdiction, and to transfer jurisdiction back to the trial court. (Cal. Rules of Court, rule 8.272.) ‘Remittitur transfers jurisdiction back to the inferior court so that it may act upon the case again, consistent with the judgment of the reviewing court.’ (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10.)” (People v. Awad (2015) 238 Cal.App.4th 215, 223.)
“The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 (Griset).) The Supreme Court has stated: “When there has been a decision upon appeal, the trial court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. [Citations.]” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 655 (Hampton).) “When . . . there is an appeal from a void judgment [or order], the reviewing court’s jurisdiction is limited to reversing the trial court’s void acts. [Citations.]” (Griset, supra, at p. 701.)
In the prior appeal case No. H041767, this court fully affirmed the trial court’s order denying defendant’s petition for recall of sentence and resentencing (see § 1170.18, subds. (a), (b)) “without prejudice to subsequent consideration of a petition that demonstrates that the stolen cars were each valued at $950 or less.” (Italics added.) The disposition did not direct the trial court to take any further actions, but merely allowed defendant to file a new petition for recall and resentencing pursuant to section 1170.18, subdivision (a), without prejudice. In the remittitur itself, the clerk of this court simply certified that “the attached [was] a true and correct copy of the original opinion or decision” and that the decision had become final.
The remittitur and the opinion’s disposition said nothing about the trial court’s consideration of potential applications for misdemeanor designation pursuant to section 1170.18, subdivision (f), that might be filed after defendant completed his sentences. By denying defendant’s applications for misdemeanor designation, the court did not act in contravention of the remittitur.
2. Law of the Case
“ ‘ “The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” [Citation.]’ [Citation.] ‘Generally, the doctrine of law of the case does not extend to points of law which might have been but were not presented and determined in the prior appeal. [Citation.] As an exception to the general rule, the doctrine is . . . held applicable to questions not expressly decided but implicitly decided because they were essential to the decision on the prior appeal.’ [Citation.]” (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.) The doctrine applies in criminal cases. (People v. Gray (2005) 37 Cal.4th 168, 197 (Gray).)
“The doctrine will not be applied, however, when such application leads to an unjust result.” (Gray, supra, 37 Cal.4th at p. 197.) Because the law of the case doctrine is merely a rule of procedure that does not affect courts’ jurisdiction, courts will not adhere to the doctrine where “its application will result in an unjust decision, e.g., where there has been a ‘manifest misapplication of existing principles resulting in substantial injustice’ [citation], or the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations [citation].” (People v. Stanley (1995) 10 Cal.4th 764, 787.)
Here, defendant failed to raise the law of the case doctrine in the trial court. While “it is not necessary that a party use the magic incantation ‘law of the case,’ as long as that party calls the trial court’s attention to the earlier appellate decision and urges the court to follow it” (Adams v. Pacific Bell Directory (2003) 111 Cal.App.4th 93, 100), defendant did not do even that. “ ‘ “No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. omitted.) “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.)
But assuming defendant’s “law of the case” contention was preserved for review since the People have not raised the forfeiture rule on appeal, we observe that intervening case law in Page has now clarified that a Vehicle Code section 10851 conviction may be eligible for relief under section 1170.18. Our prior opinion essentially determined that a conviction of Vehicle Code section 10851, subdivision (a), was not categorically ineligible for resentencing pursuant to section 1170.18, subdivision (a). There is no conflict between this court’s legal conclusion in the prior appeal and the recent Page decision, which reached substantially the same conclusion. Consequently, it is unnecessary for us to consider whether application of the law of the case doctrine would result in an unjust decision.
In considering defendant’s applications for misdemeanor designation pursuant to section 1170.18, subdivision (f)), the trial court erroneously determined that defendant’s Vehicle Code section 10851 convictions were categorically ineligible for relief. Upon remand, defendant’s applications for misdemeanor designation should be evaluated in light of Page.
3. Defendant’s Challenge to the Sufficiency of the Evidence
Since the trial court made the threshold determination that defendant’s Vehicle Code section 10851, subdivision (a), convictions were categorically ineligible for designation as misdemeanors, it never considered whether the evidence offered in support of his applications was sufficient to establish eligibility for relief under section 1170.18, subdivision (f). The matter must be remanded to allow the court to consider defendant’s applications and to determine whether the vehicles’ value did not exceed $950 (see § 490.2) and whether those convictions were based on theft of the vehicles. (See Page, supra, 3 Cal.5th at pp. 1188-1189.)
DISPOSITION
The orders denying defendant’s applications for misdemeanor designation pursuant to section 1170.18, subdivisions (f), are reversed. Upon remand, the trial court shall consider those applications in light of Page, supra, 3 Cal.5th 1175.




_________________________________
ELIA, Acting P. J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.












People v. Ruiz
H044598