provides a mechanism for an offender to request to be resentenced “in accordance with”
certain enumerated sections that were amended or added by Proposition 47, and which
provide for different, lesser punishment than applied before the enactment of Proposition
47. (Pen. Code, § 1170.18, subd. (a).) As noted, the statutory 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
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added by Proposition 47. (Veh. Code, § 10851, subd. (a); see Pen. Code, § 1170.18,
subd. (a).) Defendant therefore could not be resentenced in accordance with any of the
sections added or explicitly amended by Proposition 47. Put another way: Exactly the
same sentencing considerations apply to defendant’s conviction offense before and after
Proposition 47, so there is no basis for reconsidering or reducing the sentence that was
initially imposed.
Defendant contends that Vehicle Code section 10851 was “indirectly amended” by
virtue of Penal Code section 490.2’s reference to Penal Code section 487, and the
circumstance that Vehicle Code section 10851 is a lesser included offense of Penal Code
section 487, subdivision (d)(1). On its face, however, Penal Code section 490.2 does no
more than amend the definition of grand theft, as articulated in Penal Code section 487 or
any other provision of law, redefining a limited subset of offenses that would formerly
have been grand theft to be petty theft. (Pen. Code, § 490.2.) Vehicle Code section
10851 does not proscribe theft of either the grand or petty variety, but rather the taking or
driving of a vehicle “with or without intent to steal.” (Veh. Code, § 10851, subd. (a); see
also People v. Garza (2005) 35 Cal.4th 866, 876 [Veh. Code, § 10851, subd. (a)
“‘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
6
owner of possession (i.e., joyriding)’”].) Penal Code section 490.2 is simply inapplicable
to defendant’s conviction offense.2
Defendant contends that equal protection principles require that his conviction for
unlawfully taking a vehicle in violation of Vehicle Code section 10851 be treated in the
same manner as a conviction for grand theft auto in violation of Penal Code section 487,
subdivision (d)(1). Not so. Applying rational basis scrutiny, the California 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 principles.” (People v.
Wilkinson (2004) 33 Cal.4th 821, 838) Similarly, it has long been the case that “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 [citations] 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.” (People v. Romo (1975) 14 Cal.3d 189, 197.) The same reasoning
applies to Proposition 47’s provision for the possibility of sentence reduction for a
2 Even if we were to assume that Penal Code section 490.2 applied as defendant would have it—to reduce some Vehicle Code section 10851 convictions that would otherwise be felonies to misdemeanors, at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less. The burden of proof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition, providing no information at all regarding his eligibility for resentencing in his petition.
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limited subset of those previously convicted of grand theft (those who stole an
automobile or other personal property valued $950 or less), but not those convicted of
unlawfully taking or driving a vehicle in violation of 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.” (Wilkinson, supra, 33 Cal.4th at p. 839.) Defendant here
has made no such showing.
To be sure, “Vehicle Code section 10851 is not classified as a ‘serious felony,’ and
it is not as serious as crimes in which violence is inflicted or threatened against a person.”
(People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonable to argue, as
defendant has, that the same policy reasons motivating Proposition 47’s reduction in
punishment for certain felony or wobbler offenses would also apply equally well to
Vehicle Code section 10851.3 Nevertheless, if Proposition 47 were intended to apply not
only to reduce the punishment for certain specified offenses, but also any lesser included
offenses, we would expect some indication of that intent in the statutory language. We
find nothing of the sort. It is simply not our role to interpose additional changes to the
3 That said, we find nothing absurd or irrational about the legislative determination that theft of certain automobiles of very low value should be treated as petty theft, and thus potentially a misdemeanor, while retaining the statutory option of punishing the unlawful taking or driving of an automobile, regardless of intent to steal, as a felony violation of Vehicle Code section 10851. (See Wilkinson, supra, 33 Cal.4th at pp. 838-839 [finding rational basis for statutory scheme allowing the “‘lesser’” offense of battery without injury to be punished more severely than the “‘greater’” offense of battery with injury].)
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Penal Code or Vehicle Code beyond those expressed in the plain language of the
additions or amendments resulting from the adoption of Proposition 47.
III. DISPOSITION
The order appealed from is affirmed.
CERTIFIED FOR PUBLICATION
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. A conviction for violating Vehicle Code section 10851 is not eligible for resentencing under Proposition 47 because that statute was not amended or added by the initiative and does not constitute a theft offense subject to the new petty theft threshold.
Issues
Whether a conviction under Vehicle Code section 10851 is eligible for resentencing under Proposition 47.
Whether equal protection principles require treating Vehicle Code section 10851 convictions the same as grand theft auto convictions under Proposition 47.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Penal Code section 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47.”
“Penal Code section 490.2 is simply inapplicable to defendant’s conviction offense.”