P. v. Kirkland

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Filed 7/20/16 P. v. Kirkland CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CRAIG WAYNE KIRKLAND,
Defendant and Appellant.
A145179, A145793
(Sonoma County
Super. Ct. No. SCR655341)
I.
INTRODUCTION
These consolidated appeals raise two issues: (1) the denial of appellant Craig
Wayne Kirkland’s petition to recall his sentence pursuant to Penal Code section 1170.18,1
a provision of Proposition 47, to reduce his conviction for unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)) from a felony to a misdemeanor, and; (2) the
court’s termination of his probation and imposition of a two-year state prison sentence.
We conclude that Proposition 47 does not apply to a conviction for unlawfully driving or
taking a vehicle under Vehicle Code section 10851, and therefore, Kirkland was
ineligible for resentencing. After suspending imposition of its sentence to allow
Kirkland to participate in residential drug treatment, the court could properly impose a
two-year sentence upon terminating his probation. The judgment is affirmed.
1 All further undesignated statutory references are to the Penal Code unless
otherwise stated.

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II.
FACTUAL AND PROCEDURAL BACKGROUND
The Sonoma County District Attorney filed a complaint charging Kirkland with
two counts: unlawfully driving and taking a vehicle in violation of Vehicle Code section
10851, subdivision (a) (count one), and unlawfully buying and receiving a stolen vehicle
in violation of section 496d (count two). The complaint alleges that Kirkland took a 1993
Saturn SL with the intent to either permanently or temporarily deprive the owner of its
possession. With regard to count two, the complaint alleges the 1993 Saturn had been
“stolen” in a “manner constituting theft and extortion” and was found in possession of
Kirkland and his codefendants from August 8 through September 2, 2014.
At the plea hearing, the prosecutor informed the court that count two was now a
misdemeanor by operation of Proposition 47. The prosecutor stated the value of the 1993
Saturn was “approximately $700.”
Kirkland pled no contest to a violation of Vehicle Code section 10851,
subdivision (a), and the second count was dismissed. On his “Advisement of Rights,
Waiver and Plea Form for Felonies,” the charge was listed as Vehicle Code section
10851, subdivision (a) and “auto theft.” The factual basis for the plea was derived from
the police reports concerning the crime. The plea was conditioned on Kirkland receiving
a stipulated term of custody at the low end of the sentencing range of 16 months, or
probation if Kirkland was accepted into a residential treatment program for six months or
more. The plea agreement specified that if Kirkland committed another crime pending
sentence or violated any of the terms of release, the agreement was “canceled.”
At sentencing, Kirkland presented evidence of his acceptance into a residential
treatment program. The court commented in response as follows: “[F]or the next 36
months, you’ll be on formal probation. Imposition of judgment is suspended.”
On March 27, 2015, the court accepted Kirkland’s guilty plea to two new charges:
count one, identity theft in violation of section 530.5, subdivision (c)(1), and count two,
false identification to a police officer in violation of section 148.9, subdivision (a). The
court stated that Kirkland had been given the option of residential treatment and had

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failed to take advantage of it. The court advised Kirkland of his rights. The court
identified count one and asked Kirkland: “How do you plead to that count?” The record
reflects: “There was a sotto voce discussion between [Kirkland] and counsel.” Kirkland
then stated: “Yes.” The court set forth count two and asked Kirkland how he pleaded to
that count, and he responded: “No contest.” The court found him guilty of both counts.
Kirkland waived his right to a probation hearing and the court found him in violation of
probation.
The court held a sentencing hearing on April 30, 2015. Respondent argued that
Kirkland had failed to avail himself of treatment and committed additional crimes so the
court should impose a prison term. Kirkland admitted that he “blew it” and failed to
show up for treatment, but he requested a further opportunity to seek treatment. The
court denied probation and sentenced him to six months county jail on the charges of
identity theft and false identification. On the earlier charge of taking or driving a vehicle,
the court imposed a two-year state prison term.
Kirkland filed a propria persona petition for resentencing under Proposition 47.
On July 5, 2015, the court held a hearing and found Proposition 47 did not apply to
Vehicle Code section 10851.

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III.
DISCUSSION
A. Proposition 47 Does Not Apply to Vehicle Code Section 10851
Kirkland argues the trial court acted illegally in rejecting his petition to reduce his
conviction to a misdemeanor pursuant to Proposition 47.2 He further argues that denying
relief to a person convicted of auto theft under Vehicle Code section 10851 while
granting relief to similarly situated individuals convicted of auto theft under section 487
violates his equal protection rights.
The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh
v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) “ ‘In
interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles
that govern statutory construction.’. . .” (People v. Perkins (2016) 244 Cal.App.4th 129,
136, quoting People v. Rizo (2000) 22 Cal.4th 681, 685.)
In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act (the Act), which reduced certain drug- and theft-related offenses to
misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091 (Rivera).)
“These offenses had previously been designated as either felonies or wobblers (crimes
that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)
Proposition 47 created a new resentencing scheme for persons serving felony
sentences for offenses which were made misdemeanors by the Act. (§ 1170.18,
subd. (a).) A person currently serving a sentence for a felony conviction may petition for
2 At oral argument Kirkland’s counsel argued for the first time that the trial court
acted illegally in accepting the plea as a felony to Vehicle Code section 10851.
Proposition 47 was passed on November 4, 2014 and became effective the following day
on November 5, 2014. (Cal. Const., art. II, § 10, subd. (a).) Kirkland’s plea hearing was
held on November 13, 2014. At the hearing, the prosecutor informed the court that count
two, buying and receiving a stolen vehicle pursuant to section 496d, was now a
misdemeanor by operation of Proposition 47. Neither the prosecution nor defense
counsel mentioned the application of Proposition 47 to count one. Even if defense
counsel should have raised this issue, as discussed here, the court properly accepted the
plea as a felony.

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recall of that sentence if the person would have been guilty of a misdemeanor had
Proposition 47 been in effect at the time of the offense. A person may petition for
resentencing in accordance with section 490.2, among other sections. (Rivera, supra, 233
Cal.App.4th at p. 1092.)
Proposition 47 added section 490.2, 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 . . . .” (§ 490.2, subd. (a).) Section 490.2 is explicitly
listed in section 1170.18 as one of “those sections [that] have been amended or added” by
Proposition 47. (§ 1170.18, subd. (a).) Section 1170.18 does not specifically include
Vehicle Code section 10851 as one of the code sections amended or added by
Proposition 47. (§ 1170.18.)
There is no consensus among the Courts of Appeal about whether a conviction for
theft under Vehicle Code section 10851 is eligible for resentencing under sections 490.2
and 1170.18, and the issue is currently on review before our Supreme Court.3
We hold that Proposition 47 does not apply to Vehicle Code section 10851.
Section 1170.18 does not identify Vehicle Code section 10851 as one of the code sections
amended by Proposition 47. (§ 1170.18.) Section 1170.18 provides a defendant can
petition for resentencing under Proposition 47 if he would have been guilty of a
3 The Supreme Court has granted review of several cases raising this issue. In
People v. Page, the Fourth District Court of Appeal held a defendant convicted under
Vehicle Code section 10851 was not eligible for relief under section 1170.18. (People v.
Page, review granted Jan. 27, 2016, S230793, 2016 Cal. LEXIS 784 (Page).) The Third
District followed the reasoning of Page in People v. Haywood, review granted March 9,
2016, S232250, 2016 Cal. LEXIS 1329.) Similarly, the Second District held that
Proposition 47 does not apply to Vehicle Code section 10851. (People v. Solis, review
granted June 8, 2016, S234150, 2016 Cal. LEXIS 3761.)
The Sixth District disagreed with Page in People v. Ortiz, review granted
March 16, 2016, S232344, 2016 Cal. LEXIS 1821, and People v. Lopez (Jan. 25, 2016,
H042129, 2016 Cal.App. Unpub. LEXIS 527 [remanding to allow appellant to
demonstrate value of vehicle].)

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misdemeanor if Proposition 47 had been in effect at the time of the crime. Vehicle Code
section 10851 is punishable as either a felony or a misdemeanor and that was not altered
by Proposition 47. (Veh. Code, § 10851, subd. (a).)
Kirkland argues that the purpose of Proposition 47 was to “[r]equire
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft.”
(Prop. 47, Sec. 3, subds. (1), (3).) Kirkland contends that Vehicle Code section 10851 is
a provision of law defining a theft offense. He cites to section 666, subdivision (a),
which describes a violation of Vehicle Code section 10851 as “auto theft.”
Our analysis does not compel this result. Section 1170.18, subdivision (a)
includes section 490.2, and states that a defendant may petition for a recall of sentence
“in accordance with” section 490.2. Section 490.2 provides that “obtaining any property
by theft” shall be considered petty theft where the property’s value does not exceed $950.
(§ 490.2, subd. (a).) Section 490.2 does not reference Vehicle Code section 10851, as it
does section 487 (the grand theft statute), nor does the text of Vehicle Code section
10851 purport to define the taking of a vehicle as grand theft within the language of
section 490.2. We find this omission significant because, unlike statutes that simply
prohibit theft, Vehicle Code section 10851 is not a theft statute. It prohibits both theft
and non-theft conduct: the taking or driving of a vehicle “with or without the intent to
steal.” (Veh. Code, § 10851, subd. (a); People v. Garza (2005) 35 Cal.4th 866, 876
(Garza).) Vehicle Code section 10851 may be violated 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.]” (Garza, at p. 876.) If a defendant takes or
drives a vehicle with the intent to deprive the owner of possession temporarily, he has not
committed theft (See id. at p. 871; People v. Barrick (1982) 33 Cal.3d 115, 135
(Barrick), overruled on other grounds in People v. Collins (1986) 42 Cal.3d 378.) If,
however, a defendant takes or drives a vehicle with the intent to deprive the owner of
possession permanently, he has committed a theft offense. (Garza, at pp. 879, 881.)

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Thus, section 490.2 cannot apply to all violations of Vehicle Code section 10851.
As the more specific statute, Vehicle Code section 10851 prevails over section 490.2.
(See People v. Ahmed (2011) 53 Cal.4th 156, 163.)
Kirkland next argues that any ambiguity in the statute must be read in favor of its
application to him. Section 1170.18 expressly includes certain theft offenses (§§ 459.5,
473, 476a, 490.2, 496, & 666), but does not include Vehicle Code section 10851. There
is nothing ambiguous about the offenses that are included or about excluding Vehicle
Code section 10851 from the list. “The expression of some things in a statute necessarily
means the exclusion of other things not expressed. [Citation.]” (Gikas v. Zolin (1993) 6
Cal.4th 841, 852.) Where the Legislature expressly includes certain criminal offenses in
a statute, the legislative intent was to exclude offenses that were not mentioned. (People
v. Sanchez (1997) 52 Cal.App.4th 997, 1001-1002.)
Similarly, contrary to Kirkland’s contention, the rule of lenity does not apply here.
“ ‘The rule [of lenity] applies only if the court can do no more than guess what the
legislative body intended; there must be an egregious ambiguity and uncertainty to justify
invoking the rule.’ [Citation.]” (People v. Avery (2002) 27 Cal.4th 49, 58.) “Thus,
although true ambiguities are resolved in a defendant’s favor, an appellate court should
not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary
legislative intent.” (Ibid.) We find no ambiguity in section 1170.18 with regard to the
theft offenses that are eligible for reclassification and resentencing; therefore, the rule of
lenity does not apply.
Kirkland’s final argument is that equal protection principles require that a
conviction for vehicle theft under Vehicle Code section 10851 be treated the same as a
conviction for grand theft under section 487, subdivision (d). Vehicle Code section
10851 is a lesser included offense of section 487, subdivision (d)(1), grand theft auto.
(Barrick, supra, 33 Cal.3d at p. 128.)
Our Supreme Court has held that “neither the existence of two identical criminal
statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s
discretion in charging under one such statute and not the other, violates equal protection

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principles. . . .” (People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson), citing
United States v. Batchelder (1979) 442 U.S. 114, 124–125.) A defendant “ ‘does not
have a fundamental interest in a specific term of imprisonment or in the designation a
particular crime receives.’ [Citation.]” (Wilkinson, at p. 838.)
The fact that the prosecution elects to prosecute the accused for a more serious
penalty is not a denial of equal protection. (People v. Romo (1975) 14 Cal.3d 189, 197
(Romo).) A “car thief may not complain because he may have been subjected to
imprisonment for more than 10 years for grand theft of an automobile (§§ 487, subd. 3,
. . . 489) when, under the same facts, he might have been subjected to no more than 5
years under the provisions of section 10851 of the Vehicle Code.” (Romo, at p. 197.)
Similarly, it does not violate equal protection for Proposition 47 to provide for a reduced
sentence for a subset of grand theft cases under section 487 but not include those
convicted of unlawfully driving or taking vehicle under Vehicle Code section 10851.
Absent a showing that a particular defendant “ ‘has been singled out deliberately for
prosecution on the basis of some invidious criterion,’ . . . the defendant cannot make out
an equal protection violation. [Citation.]” (Wilkinson, supra, 33 Cal.4th at p. 839.)
Kirkland has failed to make the necessary showing.4
B. Kirkland’s Two-Year Sentence Was Lawful After His Probation Was Revoked
Kirkland argues that after he committed new offenses in violation of his probation,
the court improperly considered these new convictions in sentencing him. Kirkland also
argues the court should not have considered his two additional crimes because his pleas
to identity theft and false identification to a police officer were invalid. He contends that
at the time of the second plea hearing, the court did not obtain an express waiver of
rights, and it failed to secure an unequivocal plea of guilty or no contest to the first count.
“Upon any revocation and termination of probation the court may, if the sentence
has been suspended, pronounce judgment for any time within the longest period for
4 We do not address the sufficiency of the evidence demonstrating the value of the
stolen Saturn or which party bears the burden of proof on the issue because we conclude
Kirkland’s offense is not eligible for resentencing under Proposition 47.

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which the person might have been sentenced. However, if the judgment has been
pronounced and the execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and effect.” (§ 1203.2,
subd. (c), italics added.) At the time of sentencing, when the trial court grants probation,
it may either suspend imposition of the sentence or actually impose sentence and suspend
its execution. If it imposes sentence and suspends execution, then the court lacks the
power to reduce or increase the sentence when it revokes probation. (People v. Howard
(1997) 16 Cal.4th 1081, 1084 (Howard); Cal. Rules of Court, rule 4.435(b)(1).)
However, if “the court has suspended imposition of sentence and later revokes the
defendant’s probation, then the court has undisputed authority to choose from all the
initially available sentencing options. (§ 1203.2, subd. (c).)” (Howard, at p. 1084, italics
added.) “When the trial court suspends imposition of sentence, no judgment is then
pending against the probationer, who is subject only to the terms and conditions of the
probation. [Citations.]” (Id. at p. 1087.)
Here the court placed Kirkland on 36 months formal probation with the
requirement that he participate in a residential drug treatment program. The court then
suspended imposition of the sentence. Kirkland failed to participate in a residential
treatment program as a required condition of his probation and committed two new
crimes. Under these circumstances, when the court revoked Kirkland’s probation, it
could choose to sentence him based on all available options. (Howard, supra, 16 Cal.4th
at p. 1084.)
Kirkland next argues that when his probation was revoked, the court could only
sentence him to the 16-month term specified in the plea agreement. However, that term
was agreed to as an alternative to a grant of probation. Moreover, it was understood that
if Kirkland violated his probation and committed another crime during the period of
probation, the court would no longer be limited by the terms of the original plea
agreement. In this regard, the written plea agreement expressly provided: “I understand
that if pending sentencing I commit another crime, violate any condition of a Supervised
O.R. release, or willfully fail to appear for my sentencing hearing, this agreement will be

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canceled, I will be sentenced unconditionally, and I will not be allowed to withdraw my
guilty/no contest plea(s).”
“[I]t is well established that when ‘a defendant granted probation as part of a plea
bargain violates that probation, subsequent sentencing is not limited by the terms of the
original plea.’ [Citations.]” (People v. Segura (2008) 44 Cal.4th 921, 934, quoting
People v. Martin (1992) 3 Cal.App.4th 482, 487, original italics.) “ ‘ “A consummated
plea bargain is not a perpetual license for a defendant to violate his probation. The plea
bargain does not insulate a defendant from the consequences of his future misconduct.
‘A defendant gets the benefit of his bargain only once. Like time, a plea bargain once
spent is gone forever.’ ” ’ [Citation.]” (Segura, at p. 921.)
Here, Kirkland was given 36 months probation and the opportunity to participate
in treatment, he failed to take advantage of that opportunity, and then committed new
crimes. The court could, therefore, sentence him to the middle-term for his crime of two
years in prison.
Finally, Kirkland argues that the court improperly relied on his pleas to the two
new crimes in increasing his sentence because his pleas were invalid.
On March 27, 2015, the court accepted Kirkland’s guilty plea to two new charges:
count one, identity theft in violation of section 530.5, subdivision (c)(1), and count two,
false identification to a police officer in violation of section 148.9, subdivision (a). While
the colloquy at the plea hearing is not a model of clarity, Kirkland did, in fact, plead to
the two crimes. Kirkland’s counsel stated at the start of the hearing that Kirkland
admitted his fault and he was “ready to throw himself on the mercy of the Court.” The
court advised Kirkland of his right to a jury trial, the right to subpoena, confront, and
cross-examine witnesses, the right to testify in his own defense, and the right to remain
silent. The court asked Kirkland if he understood the rights he was giving up and he
responded “Yes.”
The court stated that Kirkland would be pleading to counts one and two with the
dismissal of count three and asked if Kirkland had any questions before the plea.
Kirkland said “No, I do not.” The court identified count one and asked Kirkland: “How

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do you plead to that count?” The hearing transcript states: “There was a sotto voce
discussion between [Kirkland] and counsel.” Kirkland then stated: “Yes.” The court
then set forth count two and asked Kirkland how he pleaded to that count and he
responded: “No contest.” Kirkland never suggested that he was not, in fact, pleading to
both counts and he expressly acknowledged he understood his rights.
“When a criminal defendant enters a guilty plea, the trial court is required to
ensure that the plea is knowing and voluntary. [Citation.]” (People v. Cross (2015) 61
Cal.4th 164, 170.) The court must inform the defendant of three constitutional rights:
(1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and
(3) the right to confront one’s accusers. The court must obtain a waiver of each of these
rights. (Ibid.)
Kirkland argues on appeal that the court failed to obtain an express waiver or
advise him of the consequences of his plea, but this is not supported by the reporter’s
transcript. The court expressly advised Kirkland of each of his rights and he stated, on
the record, that he understood them. Therefore, we conclude Kirkland’s pleas were
knowingly and voluntarily entered. The court could properly consider them in revoking
Kirkland’s probation. Further, contrary to Kirkland’s contention, the two new crimes
were not the “sole basis” for revoking probation as Kirkland had failed to participate in
residential treatment as required by the plea agreement.
IV.
DISPOSITION
The judgment is affirmed.

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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
RIVERA, J.
A145179 & A145793, People v. Kirkland

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