People v. Evans CA3

Filed 4/6/16 P. v. Evans CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C078674

Plaintiff and Respondent, (Super. Ct. No. TF14000399A) v.

SHAWN CHARLES EVANS,

Defendant and Appellant.

Defendant Shawn Charles Evans pleaded no contest to unlawful driving or taking a vehicle (Veh. Code, § 10851)1 on June 23, 2014. On November 4, 2014, before defendant was sentenced, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). Pursuant to the Act, defendant moved to reclassify his conviction as misdemeanor petty theft. (Pen. Code, § 490.2.) On January 15, 2015, the trial court

1 Further undesignated statutory references are to the Vehicle Code.

1

denied the motion and on February 24, 2015, sentenced defendant to an eight-month state prison term to be served consecutively to a two-year term in an unrelated case. Defendant timely appealed, but did not secure a certificate of probable cause. On appeal, defendant contends the trial court erred in denying him relief under the Act. Because we agree with the trial court that defendant specifically admitted to driving the vehicle as part of his plea and did not admit to stealing it, we affirm. BACKGROUND Defendant was charged with unlawful driving or taking of a vehicle (§ 10851, subd. (a) -- count I) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a) -- count II). On June 23, 2014, he entered an “open” no contest plea to count I in exchange for dismissal of count II.2 There is no transcript of the plea colloquy in the record; however, defendant completed, initialed, and signed a six-page felony plea form. The plea form stated, as a factual basis for the plea, that “[defendant] was driving a stolen vehicle.” The corresponding averment, initialed by defendant, reads: “I offer to the court the following as the basis for my plea of guilty or no contest and any admissions: [¶] (1) I understand that the court may consider the following as proof of the factual basis for my plea.” Defendant’s signed statement read in relevant part: “By putting my initials next to the items in this form, I am indicating that I understand and agree with what is stated in each item that I have initialed.” Defense counsel’s signed statement referred to “#9” when representing the factual basis for the plea to the court; “#9” is the section of the plea form containing the statement “[defendant] was driving a stolen vehicle.”