P. v. Mills

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Filed 10/27/16 P. v. Mills CA4/2
See Concurring and Dissenting Opinion
Prior 10/21/16 opinion vacated
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
DWAYNE KEVIN MILLS,
Defendant and Appellant.
E064610
(Super.Ct.No. SWF1403242)
OPINION
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Susan L. Ferguson, 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, and A. Natasha Cortina and
Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Dwayne Kevin Mills challenges the denial of his petition
to have his 2014 conviction for unlawful taking or driving of a vehicle (Veh. Code,
§ 10851, subd. (a)) designated as a misdemeanor pursuant to Proposition 47, the Safe
Neighborhoods and Schools Act. (Pen. Code, § 1170.18, subd. (f).) He contends that the
statutory language added by Proposition 47 requires that he be deemed eligible for relief.
We affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On December 15, 2014, defendant pled guilty to a felony count of unlawful taking
or driving of a vehicle (Veh. Code, § 10851, subd. (a)), admitted a prison prior offense
(Pen. Code, § 667.5, subd. (b)), and was sentenced to four years in county jail, with one
year suspended (Pen. Code, § 1170, subd. (h)).
On March 12, 2015, defendant filed a petition seeking to have his conviction
designated as a misdemeanor pursuant to Proposition 47.1 The People responded that a
Vehicle Code section 10851 offense is not a qualifying felony. On August 26, 2015, the
trial court denied the petition on the ground that “10851(a) VC is not a qualifying
felony.” (Some capitalization omitted.)
II. DISCUSSION
The issue of whether a felony conviction under Vehicle Code section 10851 comes
within the ambit of Proposition 47 is one that has divided the Courts of Appeal, and
1 Although the petition referred only to convictions from past cases in 1982, 1983,
1985 and 2009, the trial court deemed the petition as a request for resentencing on the
felony conviction in this case for violating Vehicle Code section 10851, subdivision (a).

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which the California Supreme Court will decide.2 Recognizing that reasonable minds
can differ on this matter, pending the Supreme Court’s decision, we will adhere to this
court’s previous analysis: a defendant convicted of violating Vehicle Code section 10851
is ineligible for resentencing under Proposition 47 as a matter of law, regardless of the
facts of the crime.
“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.) Proposition 47 provides retrospective relief for defendants who are either serving
a sentence or have completed a sentence for a prior conviction, if the prior conviction
would have been a misdemeanor under Proposition 47 had it been in effect at the time of
the offense. (Pen. Code, § 1170.18, subds. (a), (f).)
Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony
or a misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 [listing Vehicle Code section 10851, as a
statute that proves for “alternative felony or misdemeanor punishment”].) The statutory
2 The issue of whether Proposition 47 applies to a section 10851 conviction is
before the California Supreme Court in People v. Page (2015) 241 Cal.App.4th 714,
review granted January 27, 2016, S230793; People v. Haywood (2015) 243 Cal.App.4th
515, review granted March 9, 2016, S232250; People v. Ortiz (2016) 243 Cal.App.4th
854, review granted March 16, 2016, S232344; People v. Solis (2016) 245 Cal.App.4th
1099, review granted June 8, 2016, S234150; and People v. Johnston (2016) 247
Cal.App.4th 252, review granted July 13, 2016, S235041.

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language setting the punishment for violations of Vehicle Code section 10851 remains
the same, before and after Proposition 47, and is not included among the enumerated
sections amended or added by Proposition 47. (Veh. Code, § 10851, subd. (a); see Pen.
Code, § 1170.18, subd. (a).) We therefore cannot say that defendant’s Vehicle Code
section 10851 conviction would have been a misdemeanor had Proposition 47 been in
effect at the time of the offense. It follows that defendant’s conviction is ineligible for
designation as a misdemeanor under Penal Code section 1170.18.
Defendant contends that Vehicle Code section 10851 falls within the scope of
Penal Code section 490.2, added by Proposition 47, which provides as follows:
“Notwithstanding [Penal Code] 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 . . . .” (Pen. Code,
§ 490.2, subd. (a).) Defendant reads this language as broad enough to encompass all low-
level (less than $950) thefts committed by defendants with no disqualifying prior
convictions, and that any taking, whether with or without the intent permanently to
deprive, is a theft offense within the meaning of Proposition 47.
We disagree. Penal Code section 490.2 redefines a limited subset of offenses that
would have formerly been grand theft to be petty theft; however, it neither redefines nor
establishes a substantive theft offense. Rather, Penal Code section 484, subdivision (a),
defines theft; to steal or obtain property by theft, a defendant must take the property with
the specific intent to permanently deprive the owner of possession. When the stolen

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property does not exceed $950, Penal Code section 490.2 reclassifies the theft to be petty
theft. Thus, when a defendant is charged with either grand theft or petty theft of an
automobile, the prosecution must prove that defendant intended to permanently deprive
the owner of possession.
In contrast, Vehicle Code section 10851 may be violated either by taking a vehicle
with intent to steal it, or by driving it with the intent only to temporarily deprive the
owner of its possession. (People v. Garza (2005) 35 Cal.4th 866, 876.) Depending on
circumstances, a violation of Vehicle Code section 10851 may or may not be treated as a
“theft conviction” for certain purposes. (Garza, supra, at p. 871.) Nevertheless, Vehicle
Code section 10851 does not itself proscribe theft of either the grand or petty variety, but
rather the action of taking or driving a vehicle “with or without intent to steal.” (Veh.
Code, § 10851, subd. (a).) It therefore does not fall within the scope of Penal Code
section 490.2.
Our analysis is supported by the circumstance that a statute amended by
Proposition 47 explicitly treats Vehicle Code section 10851 convictions as separate from
either grand or petty theft convictions. Proposition 47 amended Penal Code section 666,
petty theft with a prior. (Pen. Code, § 666, see also Pen. Code, § 1170.18, subd. (a)
[listing Pen. Code § 666 as among those sections amended or added by Proposition 47].)
Eligible predicates include prior convictions for “petty theft, grand theft . . . auto theft
under Section 10851 of the Vehicle Code, burglary, carjacking, robbery,” and receiving
stolen property. (Pen. Code, § 666, subd. (a).) The inclusion of “auto theft under Section
10851 of the Vehicle Code” alongside “grand theft” and “petty theft” in a statute

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explicitly amended by Proposition 47 is a significant indication that Vehicle Code section
10851 convictions are not properly treated as either grand theft or petty theft convictions,
for purposes of the Proposition 47 analysis. Thus, the trial court properly found that
Vehicle Code section 10851 convictions are ineligible for resentencing under Proposition
47.
Even if we were to agree that a Vehicle Code section 10851 conviction could be
eligible for resentencing, it remains defendant’s burden to have produced facts
establishing his eligibility, including the value of the car at issue, and that the conviction
was indeed for a theft, not a joyride—assuming that there is some way in which he can
establish that his conviction was for a car theft when that was not a necessary element.
(People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450; People v. Perkins (2016)
244 Cal.App.4th 129, 136-137; People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)
Defendant’s petition failed to satisfy this burden, providing no evidence of eligibility.
(See People v. Sherow, supra, at p. 880 [proper petition could contain at least declaration
from defendant regarding circumstances of offense].) Therefore, the trial court did not
err in denying relief on this conviction.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.

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I concur:
CODRINGTON
J.

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[People v. Mills, E064610]
MILLER, J., Dissenting and Concurring
I respectfully dissent to that part of the majority opinion finding that Proposition
47 does not apply to all convictions under Vehicle Code section 10851. Some
convictions of Vehicle Code section 10851 constitute theft offenses. (People v. Garza
(2005) 35 Cal.4th 866, 881.) Assuming that a defendant takes a vehicle with the intent to
permanently deprive the owner of the vehicle and it is valued under $950, such violation
would constitute a violation of Penal Code section 490.2, petty theft, which was added by
Proposition 47.
I concur in the result that defendant’s petition to recall his sentence was properly
denied by the trial court as defendant failed to meet his burden of establishing the vehicle
he took was valued under $950, and that he intended to permanently deprive the owner of
the vehicle.
MILLER
J.

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