People v. Ferreira CA2/7 ( 2022 )

Filed 8/23/22 P. v. Ferreira CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B315435
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA032763)
v.
CHRIS FERREIRA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. Affirmed.
Edward Mahler, Attorney for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Chris Ferreira appeals from the denial of his second
petition under Proposition 47, the Safe Neighborhoods and
Schools Act of 2014 (Pen. Code, § 1170.18), to reclassify his
conviction for driving or taking a vehicle in violation of Vehicle
Code section 10851, subdivision (a),1 as a misdemeanor. The
superior court denied Ferreira’s first petition on the basis his
felony conviction did not qualify for reduction to a misdemeanor.
We affirmed without prejudice to Ferreira filing a second petition
that provided evidence of his eligibility for resentencing
consistent with the Supreme Court’s decision in People v. Page
(2017) 3 Cal.5th 1175, 1187 (Page). However, the superior court
summarily denied Ferreira’s second petition based solely on its
denial of the first. On appeal, Ferreira contends, the People
concede, and we agree the superior court’s denial on this basis
was error. But because Ferreira failed to state a factual basis for
or submit evidence of his eligibility for relief, the error was
harmless. We therefore affirm, but in light of the absence of a
place on the Los Angeles Superior Court form for Proposition 47
petitions to provide additional information, our affirmance is
without prejudice to Ferreira filing a third petition that makes a
prima facie showing of eligibility for relief.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 1997 Ferreira was charged with unlawful
driving or taking a vehicle (§ 10851, subd. (a); count 1) and
evading a peace officer in willful or wanton disregard for the
safety of persons or property (§ 2800.2, subd. (a); count 2). On
1
Further undesignated statutory references are to the
Vehicle Code.
2
October 7, 1997, pursuant to a negotiated plea agreement,
Ferreira pleaded no contest to driving or taking a vehicle in
violation of section 10851, subdivision (a). He also admitted he
had served prison terms for two prior felony convictions within
the meaning of Penal Code section 667.5, subdivision (b). As part
of the plea agreement, the trial court dismissed count 2 for
evading a peace officer. The court sentenced Ferreira to the
upper term of three years, plus two years for the prison priors, for
an aggregate term of five years in state prison.
Ferreira filed his first Proposition 47 petition on
February 3, 2016, representing himself, seeking to have his
conviction reduced to a misdemeanor. Ferreira stated in his
petition under penalty of perjury that he entered “a plea
agreement for Driving w/out Owners [sic] Consent.” Ferreira
stated further, “I allege the value at less than $950.00.” The
superior court summarily denied the petition, finding Ferreira’s
felony conviction under section 10851 did not qualify for
reduction to a misdemeanor under Proposition 47.
While Ferreira’s appeal was pending, the Supreme Court in
Page, supra, 3 Cal.5th at page 1187 held that convictions under
section 10851 are eligible for resentencing under Proposition 47 if
(1) the vehicle was worth $950 or less, and (2) the sentence was
imposed for theft of the vehicle, not post-theft driving. In light of
Page, we affirmed the order denying Ferreira’s Proposition 47
petition “without prejudice to the filing of a new petition
providing evidence of eligibility for resentencing consistent with
the court’s holding in Page.” (People v. Ferreira (May 8, 2018,
B277078) [nonpub. opn.] (Ferreira I).)
On or about August 19, 2021 Ferreira’s appointed attorney
submitted a second Proposition 47 petition on Ferreira’s behalf.
3
The second petition was on a County of Los Angeles Superior
Court form that was different from the court form Ferreira used
for his first petition. The form petition contained 10 boxes a
petitioner could check, nine of which listed eligible felony offenses
2
under Proposition 47. The last box provided a blank space where
a petitioner could insert the type of offense. Ferreira checked the
box for the blank space and wrote in “Vehicle Code § 1085(A).”
He checked additional boxes indicating he waived his right to
have his petition heard by the original sentencing judge; he was
not required to register as a sex offender; and he had completed
his sentence for the felony offense and requested the conviction
be designated as a misdemeanor conviction. He did not provide
any additional information on the form.
On September 17, 2021 the superior court summarily
denied Ferreira’s petition. The minute order states the superior
court denied Ferreira’s petition because the “same petition was
2
The form allowed the petitioner to check a box for one of
the following felony offenses: “Penal Code §459 2nd Degree
Burglary (Shoplifting)”; “Penal Code §470/473 Forgery.
Cumulative value is <$951”; “Penal Code §476a Writing Bad
Checks. Cumulative value is <$951”; Penal Code §487 Grand
Theft. Value <$951”; “Penal Code §666 Petty Theft With a Prior”;
“Health & Safety Code §11350 Unlawful Drug Possession”;
“Health & Safety Code §11357(a) Unlawful Drug Possession”;
“Health & Safety Code §11377(a) Unlawful Drug Possession”; and
“Penal Code §496(a) Receiving Stolen Property. Value <$951.”
4
previously litigated and denied on 05/13/16.”3 Ferreira timely
appealed.
DISCUSSION
A. Governing Law and Standard of Review
Approved by voters in 2014, Proposition 47 provides, “A
person who, on November 5, 2014, was serving a sentence for a
conviction . . . of a felony or felonies who would have been guilty
of a misdemeanor . . . 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.” (Pen. Code, § 1170.18, subd. (a); see Page,
supra, 3 Cal.5th at p. 1181.) Codified in Penal Code
section 1170.18, Proposition 47 “reduces many common theft- and
drug-related offenses from felonies to misdemeanors for offenders
who do not have prior convictions for specified violent or serious
offenses.” (People v. DeHoyos (2018) 4 Cal.5th 594, 597; see Page,
at p. 1179.) “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.” (Page, at p. 1179.)
As relevant here, “[a] person convicted before Proposition 47’s
passage for vehicle theft under Vehicle Code section 10851
3
The minute order states the prosecutor was present but not
Ferreira. There was no court reporter, and the only record of the
proceeding in the appellate record is the September 17, 2021
minute order. Although the prosecutor was present, it does not
appear a hearing was held.
5
may . . . be resentenced under section 1170.18 if the person can
show the vehicle was worth $950 or less.” (Page, at pp. 1180,
1183 [“By its terms, Proposition 47’s new petty theft provision,
[Penal Code] section 490.2, covers the theft form of the Vehicle
Code section 10851 offense.”].)
Penal Code section 1170.18 also provides a procedure for a
defendant to petition for recall and resentencing if the defendant
is currently serving a felony sentence or for reclassification of the
offense as a misdemeanor if the defendant has completed the
sentence. (Pen. Code, § 1170.18, subds. (a) & (f)); In re C.B.
(2018) 6 Cal.5th 118, 124; People v. DeHoyos, supra, 4 Cal.5th at
p. 599.) “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;
see People v. Romanowski (2017) 2 Cal.5th 903, 916 [“The
ultimate burden of proving section 1170.18 eligibility lies with
the petitioner.”].)
As the Supreme Court has explained with respect to
convictions under section 10851, “[e]xcept where a conviction is
based on posttheft driving (i.e., driving separated from the
vehicle’s taking by a substantial break), a violation of section
10851 must be punished as a misdemeanor theft offense if the
vehicle is worth $950 or less.” (People v. Bullard (2020) 9 Cal.5th
94, 110.) Accordingly, a defendant convicted under section 10851
has the burden of showing in a Proposition 47 petition (1) the
conviction was based on vehicle theft, not post-theft driving, and
6
(2) the value of the vehicle was less than $950. (Ibid; Page,
supra, 3 Cal.5th at p. 1188.)
“In some cases, the uncontested information in the petition
and record of conviction may be enough for the petitioner to
establish this eligibility. . . . But in other cases, eligibility for
resentencing may turn on facts that are not established by either
the uncontested petition or the record of conviction. In these
cases, an evidentiary hearing may be ‘required if, after
considering the verified petition, the return, any denial, any
affidavits or declarations under penalty of perjury, and matters of
which judicial notice may be taken, the court finds there is a
reasonable likelihood that the petitioner may be entitled to relief
and the petitioner’s entitlement to relief depends on the
resolution of an issue of fact.’” (People v. Romanowski, supra,
2 Cal.5th at p. 916.)
In People v. Perkins (2016) 244 Cal.App.4th 129, 137
(Perkins), Division Two of the Fourth Appellate District
concluded a “defendant must provide some evidence of
eligibility” in the petition to establish a prima facie case for
eligibility. The court reasoned that because Penal Code
section 1170.18, subdivision (b), does not specifically provide for a
hearing to consider whether the defendant has met the eligibility
requirements,4 “in the normal case the superior court will rule on
the basis of the petition and any supporting documentation.”
4
Penal Code section 1170.18, subdivision (b), provides,
“Upon receiving a petition under subdivision (a), the court shall
determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in
subdivision (a), the petitioner’s felony sentence shall be recalled
and the petitioner resentenced to a misdemeanor . . . .”
7
(Perkins, at p. 137.) The court affirmed the summary denial of a
petition that alleged the defendant was convicted of receipt of
stolen property and the value of the property did not exceed $950,
but the defendant did not describe the stolen credit card or
address trial evidence that he stole other items, which would
have enabled the court to determine whether he met the criteria
5
for eligibility. (Id. at p. 137; see 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. [¶] Applying
the burden to [the petitioner] would not be unfair or
unreasonable. He knows what kind of items he took from the
stores in counts 1 and 2. [¶] . . . [¶] 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.”].)
Ferreira relies on People v. Washington (2018)
23 Cal.App.5th 948 (Washington), in which Division Eight of this
district disagreed with the holding in Perkins and reversed the
denial of a defendant’s handwritten petition for reclassification of
his second degree burglary conviction where the defendant
alleged the value of the stolen property was $450 but did not
provide any additional detail. (Washington, at pp. 955, 957.)
5
The Perkins court’s affirmance was without prejudice to the
defendant filing a subsequent petition “that supplies evidence of
[defendant’s] eligibility.” (Perkins, supra, 244 Cal.App.4th at
p. 142.)
8
Citing to Couzens, et al., Sentencing California Crimes (The
Rutter Group 2018) § 25.14, the Court of Appeal explained that
the superior court’s role is to perform an “‘initial screening’” of
the Proposition 47 petition to determine based on the petition
and the record of conviction whether the defendant has alleged a
prima facie basis for relief, and if the defendant meets this
burden, the court must hold an evidentiary hearing.
(Washington, at p. 955.) The court observed that the Los Angeles
Superior Court Proposition 47 form (similar to the one used by
Ferreira) required a defendant to specify on the form the felony
conviction and date of conviction, and allowed the defendant to
check a box stating “‘[t]he amount in question is not more than
$950’”; however, the form did not have space for a defendant to
provide additional information or evidence to support the
6
petition. (Ibid.) The court noted that requiring a defendant to
provide more information than the court form required “would
effectively nullify the Los Angeles Superior Court’s efforts to
process Proposition 47 petitions.” (Ibid.) The court concluded, “A
petitioner’s statement that the value of the stolen property did
not exceed $950 is sufficient to meet his prima facie burden under
Proposition 47 with respect to the value of the stolen goods.” (Id.
at p. 957.)
We agree with Perkins to the extent it requires, at a
minimum, a petition to state a factual basis for eligibility,
consistent with the Supreme Court’s direction in Page, supra,
6
The defendant in Washington did not use the court form,
but the court considered the form in reversing the order denying
the petition. (Washington, supra, 23 Cal.App.5th at p. 955.)
9
3 Cal.5th at page 1188, that a defendant seeking resentencing (or
reclassification) under Proposition 47 must “provid[e] in the
petition a statement of personally known facts necessary to
eligibility.” (See People v. Simms (2018) 23 Cal.App.5th 987, 993
[“At the screening stage, the petitioner bears the burden of
7
proving the eligibility criteria set forth in subdivision (a).”].)
We do not reach whether a defendant should be excused
from this initial burden, as the Washington court concluded,
where the defendant relied on a superior court form in simply
alleging in a conclusory manner the requirements for eligibility
for reduction to a misdemeanor. Because we advised Ferreira he
needed to provide evidence of his Proposition 47 eligibility with
any later petition, and further, he failed even to allege that his
conviction was based on theft of a vehicle valued at $950 or less.
7
To the extent the holding in Perkins would require a
defendant to present evidence of eligibility with the initial
petition, we do not read Proposition 47 to impose this
requirement at the prima facie stage. As the Supreme Court held
in Page, supra, 3 Cal.5th at page 1189, “a petition should allege
and, where possible, provide evidence of the facts necessary to
eligibility for resentencing under [Penal Code] section 1170.18.”
10
B. The Superior Court’s Error in Denying Ferreira’s Petition
Was Harmless
Ferreira contends, the People concede, and we agree the
superior court erred in denying Ferreira’s second petition as
repetitive because we affirmed the first denial without prejudice
to Ferreira submitting a second petition. (Ferreira I, supra,
B277078.) However, the superior court’s error was harmless
because Ferreira failed to meet his prima facie burden to show
Proposition 47 eligibility, and thus it is not reasonably probable
he would have obtained a more favorable result had the superior
court properly considered his petition. (See People v. Watson
(1956) 46 Cal.2d 818, 836 [error is prejudicial if “it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error”]; People v.
Johnson (2016) 1 Cal.App.5th 953, 968 [applying Watson
harmless error standard to trial court’s error in determining
eligibility for resentencing under Proposition 47].)
Ferreira failed to present a factual basis supporting his
eligibility for relief under Proposition 47, instead simply stating
he suffered a felony conviction for violation of section 10851,
subdivision (a). (See Page, supra, 3 Cal.5th at p. 1188.) We
recognize the Los Angeles Superior Court form petition used by
Ferreira’s attorney, like the one in Washington, supra, 23
Cal.App.5th at page 955, did not provide a space in which
Ferreira could have alleged or provided additional facts to show
he was convicted of section 10851 based on vehicle theft and the
value of the vehicle was $950 or less. We urge the Los Angeles
Superior Court to modify its Proposition 47 form petition to
provide space on the form for a defendant to supply a factual
basis for a petition seeking resentencing or reclassification of a
11
theft-related conviction and to attach supporting documentation
as appropriate. But unlike the petitioner in Washington, who
potentially was misled by the form petition, we specifically
instructed Ferreira in Ferreira I, supra, B277078 that he could
file “a new petition providing evidence of eligibility for
resentencing consistent with the court’s holding in Page.” He did
not. And unlike the defendant in Washington, Ferreira was
represented by counsel when he submitted his second petition.
(See Washington, supra, 23 Cal.App.5th at p. 957 [disagreeing
with Perkins because it is “unrealistic to expect Proposition 47
petitioners, who are often self-represented either from prison or
upon release, to marshal evidence at the initial stage to
8
establish” Proposition 47 eligibility].)
We therefore affirm the order denying Ferreira’s
Proposition 47 petition. However, our affirmance is without
prejudice to Ferreira filing a third petition that makes a prima
facie showing of eligibility for relief. At a minimum, the petition
must state a factual basis for a finding the vehicle was worth
$950 or less and the sentence was imposed for theft of the vehicle,
not post-theft driving. Further, the superior court must fulfill its
responsibility to review the petition to determine whether
Ferreira has made a prima facie showing.
8
Ferreira asserts in his reply brief that the insufficiency of
his petition “appears to be an oversight by his counsel.”
However, Ferreira does not argue ineffective assistance of
counsel.
12
DISPOSITION
The order denying Ferreira’s petition to reclassify his
conviction as a misdemeanor is affirmed without prejudice to
Ferreira filing a third petition that makes a prima facie showing
of eligibility for relief.
FEUER, J.
We concur:
SEGAL, Acting P. J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13