Filed 8/31/16 P. v. Walker CA4/2
See dissenting opinion.

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064513

v.                                                                      (Super.Ct.No. FVI08775)

LATOI PATRICE WALKER,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight

III, Judge. Affirmed.

         Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
                     FACTUAL AND PROCEDURAL HISTORY

       On November 4, 2014, the voters approved Proposition 47, The Safe

Neighborhoods and Schools Act (Proposition 47); it went into effect the following day.

Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It

added and amended sections of the Penal Code. Penal Code section 1170.18 was added

and provides that a person currently serving a sentence for a felony conviction, whether

by trial or plea, who would have been guilty only of a misdemeanor had Proposition 47

been in effect at the time the plea was entered, or at the time of trial, may petition for a

recall of the sentence before the trial court that entered the judgment of conviction in his

or her case to request resentencing.

       On February 23, 1999, prior to the passage of Proposition 47, defendant and

appellant Latoi Patrice Walker entered a guilty plea to unlawfully driving or taking a

vehicle, a 1985 Nissan Sentra, without the owner’s permission under Vehicle Code

section 10851, subdivision (a). In exchange for the plea, defendant received a stipulated

sentence of 16 months in state prison.

       On July 29, 2015, defendant filed a petition to recall his sentence (Petition) stating

that his felony conviction should be reduced to a misdemeanor. On August 4, 2015, the

trial court denied the petition on the ground that Vehicle Code section 10851 subdivision

(a), was not eligible for resentencing under Proposition 47.

       On appeal, defendant contends that Penal Code section 1170.18 should be broadly

interpreted to include violations of Vehicle Code section 10851, and be reduced to a

misdemeanor.


                                               2
       We affirm the denial of defendant’s Petition.

                                       DISCUSSION

       Defendant claims that Penal Code section 1170.18 should be interpreted to include

Vehicle Code section 108511 as a felony that can be reduced to a misdemeanor violation

of Penal Code section 490.2. We affirm the denial of defendant’s Petition because he

failed to meet his burden of alleging facts that he was eligible for resentencing under

Penal Code section 490.2.

       “The voters approved Proposition 47 at the November 4, 2014 general election,

and it became effective the next day.” (People v. Diaz (2015) 238 Cal.App.4th 1323,

1328.) “Proposition 47 ‘was intended to reduce penalties “for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”’”

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) “‘In interpreting a voter

initiative . . . we apply the same principles that govern statutory construction. [Citation.]

Thus, “we turn first to the language of the statute, giving the words their ordinary

meaning.” [Citation.] The statutory language must also be construed in the context of

       1  Vehicle Code section 10851 provides, “Any person who 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, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be
punished by imprisonment in a county jail for not more than one year or pursuant to
subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.” This section
“‘proscribes a wide range of conduct [and may be violated] 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).’” (People v. Garza (2005) 35 Cal.4th 866, 876.)


                                              3
the statute as a whole and the overall statutory scheme [in light of the electorate’s intent].

[Citation.] When the language is ambiguous, “we refer to other indicia of the voters’

intent, particularly the analyses and arguments contained in the official ballot pamphlet.”

[Citation.]’ [Citation.] In other words, ‘our primary purpose is to ascertain and

effectuate the intent of the voters who passed the initiative measure.’” (People v. Briceno

(2004) 34 Cal.4th 451, 459.)

       Proposition 47 added Penal Code section 1170.18 to the Penal Code. Subdivision

(a) of Penal Code section 1170.18, provides in pertinent part, “A person currently serving

a sentence for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under the act that added this section (‘this act’) had

this act been in effect at the time of the offense 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 in accordance with Sections 11350, 11357, or 11377 of the Health and

Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those

sections have been amended or added by this act.” Under Penal Code section 1170.18,

subdivision (b), the trial court first determines whether the petition has presented a prima

facie case for relief under Penal Code section 1170.18, subdivision (a). If the petitioner

satisfies the criteria in subdivision (a), then he will be resentenced to a misdemeanor,

unless the court, within its discretion, determines the petitioner would pose an

unreasonable risk to public safety. (Pen. Code, § 1170.18, subd. (b).)

       Penal Code section 1170.18, subdivision (f) provides: “A person who has

completed his or her sentence for a conviction, whether by trial or plea, of a felony or


                                              4
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.” Penal Code section 1170.18, subdivision (h) provides:

“Unless requested by the applicant, no hearing is necessary to grant or deny an

application filed under subsection (f).”

       As relevant to this case, Vehicle Code section 10851 is not listed in Penal Code

section 1170.18, and the issue of whether a defendant is eligible for resentencing for a

violation of that section is currently under review in the California Supreme Court in

People v. Page (2015) 241 Cal.App.4th 14, review granted, January 27, 2016, S230793.

We only briefly address the possibility that a violation of Vehicle Code section 10851

could be reduced to a misdemeanor under Proposition 47.

       Section 490.2 was added to the Penal Code. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part,

“Notwithstanding [Penal Code s]ection 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.” Penal Code section 487,

subdivision (a), provides that if the value of the money, labor, real or personal property

taken exceeds $950, the offense is a felony. Penal Code section 487, subdivision (d)(1),

provides that grand theft occurs if the property is an automobile, regardless of the value.




                                              5
       Penal Code section 1170.18 clearly states that a defendant must show he was

convicted of a felony but would have been convicted of a misdemeanor if Proposition 47

had been in effect at the time of the offense. For an offense under Penal Code section

490.2, which was added to the Penal Code, defendant had to allege facts in the Petition

that he would have been guilty of a misdemeanor violation of Penal Code section 490.2

rather than the felony conviction. It is true that Vehicle Code section 10851 is not listed

in Penal Code section 1170.18. However, Vehicle Code section 10851 can be violated by

the taking of a vehicle with the intent to permanently deprive the owner of the vehicle.

Assuming that a defendant takes a vehicle valued under $950, such violation could

constitute a violation of Penal Code section 490.2.

       However, in this case, defendant failed to prove that the value of the vehicle in this

case was under $950, or to allege any facts to support that he was eligible for

resentencing. The petitioner has the burden of establishing eligibility for relief under

Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880

(Sherow).)

       In Sherow, the defendant was ultimately convicted of five counts of second degree

burglary, and filed a petition to recall his sentence, which was denied. As set forth in the

opinion, “[The defendant] appeals challenging only the decision as to counts 1 and 2. He

contends the record does not show the loss as to each count exceeded $950 and thus the

two counts should be resentenced as misdemeanors. [The defendant]’s petition sought

resentencing as to all five counts without any separate discussion of the counts, no

reference to facts or evidence and no argument.” (Sherow, supra, 239 Cal.App.4th at p.


                                             6
877.) The People responded that the defendant had failed to meet his burden under Penal

Code section 1170.18 to show the losses did not exceed $950. (Sherow, at p. 877.) The

defendant, in turn, argued that his “blanket request” to reduce his convictions to

misdemeanors, without any discussion or elaboration, placed the burden on the

prosecution to discern whether he was eligible for relief under Proposition 47. (Id. at p.

878.)

        The Sherow court observed that, “Proposition 47 does not explicitly allocate a

burden of proof.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The court stated that

“applying established principles of statutory construction I believe a petitioner for

resentencing under Proposition 47 must establish his or her eligibility for such

resentencing. In such cases, it is important to keep in mind a person . . . was validly

convicted under the law applicable at the time of the trial of the felony offenses. It is a

rational allocation of burdens if the petitioner in such cases bear[s] the burden of showing

that he or she is eligible for resentencing of what was an otherwise valid sentence.” (Id.

at p. 878.)

        The Sherow court also referred to background information prepared by “Judge J.

Richard Couzens and Presiding Justice Tricia A. Bigelow” on Proposition 47, which

provided, “‘The petitioner will have the initial burden of establishing eligibility for

resentencing under section 1170.18(a): i.e., whether the petitioner is currently serving a

felony sentence for a crime that would have been a misdemeanor had Proposition 47 been

in effect at the time the crime was committed. If the crime under consideration is a theft

offense under sections 459.5, 473, 476a, 490.2 or 496, the petitioner will have the initial


                                              7
burden of proving the value of the property did not exceed $950.’” (Sherow, supra, 239

Cal.App.4th. at p. 879.)

       The Sherow court determined that the defendant’s petition, which gave “virtually

no information” regarding his eligibility for resentencing, was properly denied. It further

noted that “[a] proper petition could certainly contain at least [the defendant’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.”

(Sherow, supra, 239 Cal.App.4th at p. 880; accord People v. Rivas-Colon (2015) 241

Cal.App.4th 444, 449 [“Under Sherow [the defendant] had the burden to establish ‘the

facts, upon which his . . . eligibility [was] based[,]’ i.e. that the value of the property he

took from the store did not exceed $950”].)

       Here, defendant’s Petition only stated that he had been convicted of violating

Vehicle Code section 10851. No further facts regarding his eligibility for resentencing

were provided. Defendant did not allege that although Vehicle Code section 10851 is not

listed in Proposition 47, he was otherwise eligible because his offense constituted a theft

offense under Penal Code section 490.2. Based on the foregoing, defendant was not

entitled to resentencing under Penal Code section 1170.18 because he did not meet his

burden of showing he was eligible for resentencing under Proposition 47.




                                               8
                                     DISPOSITION

      The trial court’s order denying defendant’s petition to recall his sentence is

affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                        MILLER
                                                                                       J.

I concur:


McKINSTER
                      Acting P. J.




                                            9
[People v. Walker, E064513]

Slough, J., Dissenting.

       I believe a defendant convicted of violating Vehicle Code section 10851,

subdivision (a) (Section 10851) who establishes he was convicted of taking a vehicle

valued at $950 or less with the intent to permanently deprive the owner of possession is

eligible for resentencing under Penal Code section 490.2, subdivision (a) (Section

490.2).2 The majority concludes only that it is possible Section 10851 “can be violated

by the taking of a vehicle with the intent to permanently deprive the owner of the

vehicle.” (Maj. opn. ante, at p. 6.) I would go further and conclude the superior court

committed reversible error by concluding Section 10851 convictions are categorically

ineligible.

       I believe the argument for the eligibility of Section 10851 theft convictions is quite

simple under Supreme Court precedent and the plain text of the statute. “[A] defendant

convicted under section 10851(a) of unlawfully taking a vehicle with the intent to

permanently deprive the owner of possession has suffered a theft conviction.” (People v.


       2  California appellate courts are divided on this issue, and we have not yet
received guidance from the California Supreme Court. (See People v. Page (2015) 241
Cal.App.4th 714, review granted Jan. 27, 2016, S230793; People v. Haywood (2015) 243
Cal.App.4th 515, review granted Mar. 29, 2016, S232250; People v. Solis (2016) 245
Cal.App.4th 1099, review granted June 8, 2016, S234150; People v. Orozco (2016) 244
Cal.App.4th 65, rehg. granted Feb. 8, 2016, sub. opn. not certified for pub.; People v.
Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, S232344; see also
People v. Gomez (2016) 243 Cal.App.4th 319, rhg. granted Jan. 11, 2016, sub. opn. not
certified for pub., review granted June 23, 2016, S233849; People v. Johnston (2016) 247
Cal.App.4th 252, review granted July 13, 2016, S235041.)


                                             1
Garza (2005) 35 Cal.4th 866, 871, second italics added.) Under Section 490.2, a person

commits petty theft by “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).”3

(Italics added.) A car is property, not otherwise specifically excluded from the scope of

Section 490.2. (See People v. Martin (1921) 53 Cal.App. 671, 672 [recognizing

automobiles are personal property]; cf. Pen. Code, § 487, subd. (d)(1) [defining car theft

as grand theft (and a wobbler) regardless of value before Proposition 47].) So, an

offender who obtains a car valued at $950 or less by theft has committed petty theft.

       Further, Section 490.2 mandates any theft of property valued at less than $950

“shall be considered petty theft and shall be punished as a misdemeanor.”4 (Italics

added.) Thus, the statute specifically directs prosecutors will not have discretion to

charge a theft of low-value property, including a low-value car, as a felony. Allowing

prosecutors the discretion to charge offenses that are by definition petty theft crimes as

felonies under Section 10851 ignores that statutory mandate and directly contravenes the

express purpose of the statute to remove prosecutorial discretion to charge low-value car


       3  The clause “Notwithstanding Section 487 or any other provision of law defining
grand theft,” at the beginning of Section 490.2 does not support a different construction.
The clause is set off by a comma, which indicates it is nonrestrictive; omitting it does not
alter the meaning of the remainder of the sentence. (Chicago Manual of Style (15th ed.
2003) § 6.38, p. 250.) As a result, Section 490.2’s direction that “any property by theft
where the value . . . does not exceed nine hundred fifty dollars ($950) shall be considered
petty theft and shall be punished as a misdemeanor” means what it appears to mean on its
face.
       4   The statute makes an exception for certain violent or serious recidivists.


                                               2
thefts as felonies. Thus, as I interpret the plain statutory text, to prosecute a Section

10851 theft offense after passage of Proposition 47, prosecutors must prove the value of

the vehicle exceeds $950. Otherwise, they must prosecute the theft as petty theft under

Section 490.2. It follows a petitioner like Walker, if he proves he suffered a low-value

car theft conviction, is eligible for resentencing because he would have been guilty of

misdemeanor petty theft had Proposition 47 been in effect at the time he committed the

offense. (Pen. Code, § 1170.18, subd. (g).)

       I also disagree with the majority’s disposition of the case. Despite the superior

court’s legal error, the majority affirms the superior court’s erroneous order on the

ground Walker’s petition did not include evidence to show his offense was a theft offense

or the value of the automobile he took did not exceed $950. I believe it is a mistake to

reflexively reject petitions as deficient. The superior court has discretion to allow a

petitioner who has not provided enough information to amend the petition or submit

additional evidence, to resolve a petition by looking to court records to determine

eligibility, and to order a hearing. (People v. Fedalizo (2016) 246 Cal.App.4th 98, 108

[“[T]rial courts have substantial flexibility to devise practical procedures to implement

Proposition 47, so long as those procedures are consistent with the proposition and any

applicable statutory or constitutional requirements”].) Because the superior court ruled

Walker’s conviction was categorically ineligible, it had no reason to reach the issues of

value and whether the conviction was for theft as opposed to driving.

       In general, courts are required to be liberal in allowing amendments, permitting

amendment whenever it is reasonably possible a party can cure a pleading insufficiency.

                                               3
(Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371,

1386 [failure to grant leave to amend complaint where there is a reasonable possibility

the plaintiff can cure the defect “is an abuse of discretion”]; Kong v. City of Hawaiian

Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028; see also 4 Witkin &

Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 242, p. 501; People v.

Duvall (1995) 9 Cal.4th 464, 482 [habeas petitions].) I see no reason to employ a

different standard in handling Proposition 47 petitions.

       Here, if the trial court had reached the point of exercising its discretion, there was

sufficient information in the record for it to conclude there was a reasonable possibility

Walker could successfully amend his petition. Walker was convicted of either taking or

driving a 1985 Nissan in 1999. Accordingly, I would reverse the superior court’s order

denying his petition and remand for further proceedings. On remand, I would allow the

superior court to exercise its discretion whether determining eligibility requires

augmentation of the factual record and, if so, whether to accomplish that end by ordering

Walker to amend his petition or ordering the parties to supplement the record at an

evidentiary hearing.




                                              4
       It is particularly important to recognize this right to amend Proposition 47

pleadings when the alternative is that the defendant loses his potentially meritorious right

to resentencing. “An amendment should be allowed where the defect, though one of

substance, may possibly be cured by supplying omitted allegations, and the plaintiff has

not had a fair opportunity to do so.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading,

§ 995, p. 407, citing MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542.)

The Riverside County Superior Court’s mandatory form contains no indication the law

requires petitioners to include any support whatsoever for the boxes they check. (See,

e.g., People v. Perkins (2016) 244 Cal.App.4th 129, 135-137.) Indeed, even the text of

the statute does not inform the petitioner evidence is required at the pleading stage. Penal

Code section 1170.18, subdivision (a) states only that an offender may “petition for a

recall of sentence.” The requirement to attach evidence to a petition arose after the

passage of Penal Code section 1170.18, when appellate courts put a gloss on the statutory

text. (See People v. Sherow (2015) 239 Cal.App.4th 875; People v. Perkins, supra, 244

Cal.App.4th 129.) In Sherow and Perkins, the appellate courts recognized the unfairness

of enforcing this rule against petitioners with no notice of its effect by affirming orders

denying petitions without prejudice. The majority declines to follow the practice in this

case without explanation. From that decision too I dissent.


                                                                 SLOUGH
                                                                                              J.




                                              5
