People v. Urbina CA4/3

Filed 12/9/15 P. v. Urbina CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, G051369 Plaintiff and Respondent, (Super. Ct. No. 13HF3278) v. OPINION EDWARD URBINA,

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Jeffrey S. Kross, 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, Arlene A. Sevidal and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Edward Urbina appeals from the trial court’s denial of his petition under Proposition 47 (see Pen. Code, § 1170.18; all further undesignated statutory references are to the Penal Code) to have his felony conviction for attempting to unlawfully take a vehicle (§ 664, subd. (a); Veh. Code, § 10851, subd. (a)) designated as a misdemeanor. He contends Proposition 47 implicitly renders the unlawful taking or attempted taking of a vehicle valued at no more than $950 a misdemeanor, or in the alternative that denying misdemeanor designation for such an offense violates equal protection. His challenge fails at the outset, however, because he made no effort to establish the vehicle he attempted to take was worth less than $950. We therefore affirm the order. I FACTUAL AND PROCEDURAL BACKGROUND In April 2014, Urbina pleaded guilty to attempted unlawful taking of a vehicle, with a gang enhancement. (§ 664, subd. (a); Veh. Code, § 10851, subd. (a); § 186.22, subd. (b)(1).) As the factual basis for his plea, he admitted that in October 2013 he, along with two accomplices, “unlawfully attempt[ed] to drive and take a 1995 Honda Civic . . . with the intent to temporarily and permanently deprive the owner of his title and possession of the vehicle.” He also admitted he committed the offense for a gang-related purpose. Under the plea agreement, the trial court dismissed other counts against Urbina and placed him on three years’ probation under a suspended sentence, on condition he serve 365 days in jail, with 314 days of presentence credit. In December 2014, probation authorities sought to revoke his probation, and Urbina responded with a petition to reduce his felony conviction to a misdemeanor under Proposition 47. His petition did not suggest the value of the vehicle he attempted to take fell in the range of petty theft under Proposition 47. (See § 490.2 [defining petty theft with an upper limit of $950 in stolen value].) Instead, he simply invited the trial court to “examine the record of conviction and determine if the violation of § 10851 and/or 496d in a specific case was [] a permanent deprivation (a vehicle theft) or a