California Court of Appeal Dec 14, 2015 No. E062467Unpublished
Filed 12/14/15 P. v. Ceja CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E062467
v. (Super.Ct.No. FSB1404077)
JOSE CEJA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. Affirmed.
John L. Staley, 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, and Melissa Mandel and
Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Jose Ceja pleaded guilty to one count of unlawfully taking a vehicle in
violation of Vehicle Code section 10851, subdivision (a). Subsequently, California
voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among
other things established a procedure for specified classes of offenders to have their felony
explicitly listed in Penal Code section 1170.18 as one of “those sections [that] have been
amended or added” by Proposition 47. (Pen. Code, § 1170.18, subd. (a).)
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B. Analysis.
As defendant acknowledges, Penal Code section 1170.18, subdivision (a), does not
identify Vehicle Code section 10851, the offense to which he pleaded guilty, as one of
the Penal Code sections amended or added by Proposition 47. Vehicle Code section
10851 is, however, a lesser included offense to Penal Code section 487, subdivision
(d)(1), grand theft, auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Defendant
argues that Penal Code section 1170.18 explicitly applies to violations of Penal Code
section 487, through the introductory clause of Penal Code section 490.2, so it “logically
applies” to lesser included offenses of Penal Code section 487, including Vehicle Code
section 10851. We disagree.2
As noted, Penal Code section 1170.18 provides a mechanism for a person “who
would have been guilty of a misdemeanor,” if Proposition 47 had been in effect at the
time of the offense, to petition for resentencing in accordance with certain enumerated
sections that were amended or added by Proposition 47. (Pen. Code, § 1170.18, subd.
(a).) We cannot say that defendant would have been guilty of a misdemeanor had
Proposition 47 been in effect at the time of his offense. Vehicle Code section 10851 is a
“wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851,
subd. (a); see (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4
[listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or
2 Our analysis here is substantively identical to this court’s opinion in People v. Page (2015) 241 Cal.App.4th 714, which was filed after the circulation of the tentative opinion in this matter but prior to oral argument.
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misdemeanor punishment”].) As defendant concedes, Proposition 47 left intact the
language in Vehicle Code section 10851, subdivision (a), which makes a violation of that
statute punishable as either a felony or a misdemeanor. Based on the statutory language
alone, therefore, whether before or after Proposition 47, defendant could be convicted for
a felony violation of Vehicle Code section 10851.
In arguing otherwise, defendant focuses on the circumstance that, with Proposition
47’s addition of Penal Code section 490.2, the theft of an automobile valued $950 or less
is no longer grand theft, but instead petty theft, unless the offense was committed by
certain ineligible defendants. (Pen. Code, §§ 490.2, subd. (a), 487, subd. (d)(1).) Thus, a
defendant who could demonstrate that his or her conviction for a violation of Penal Code
section 487, subdivision (d)(1), was based on theft of an automobile valued $950 or less
may be eligible to apply for relief under Proposition 47 and Penal Code section 1170.18.
(Pen. Code, § 1170.18, subd. (a).) The gravamen of defendant’s arguments on appeal is
that a defendant convicted of a lesser included offense of Penal Code section 487 should
be entitled to similar relief.
The plain language of Penal Code section 1170.18, however, is incompatible with
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
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after Proposition 47, and is not included among the enumerated sections amended or
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
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owner of possession (i.e., joyriding)’”].) Penal Code section 490.2 is simply inapplicable
to defendant’s conviction offense.3
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 10851.4 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
3 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 and drove a 1996 Honda Accord; 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, giving virtually no information regarding his eligibility for resentencing, instead merely asserting the bald (and erroneous) conclusion that he was eligible.
4 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 a vehicle, regardless of intent to steal, as a felony violation of Vehicle Code section 10851. (See People v. Wilkinson (2004) 33 Cal.4th 821, 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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find nothing of the sort. It is simply not our role to interpose additional changes to the
Penal Code or the Vehicle Code beyond those expressed in the plain language of the
additions or amendments resulting from the adoption of Proposition 47.
In short: The offense to which defendant pleaded guilty is not among those
reduced to a misdemeanor by Proposition 47, so the trial court correctly determined him
to be ineligible for recall of sentence and resentencing pursuant to Penal Code section
1170.18.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 by the initiative and does not qualify as a theft offense under Penal Code section 490.2.
Issues
Whether a conviction under Vehicle Code section 10851 is eligible for resentencing under Penal Code section 1170.18.
Whether Vehicle Code section 10851 is implicitly amended by the enactment of Penal Code section 490.2.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The offense to which defendant pleaded guilty is not among those reduced to a misdemeanor by Proposition 47, so the trial court correctly determined him to be ineligible for recall of sentence and resentencing pursuant to Penal Code section 1170.18.”
“Penal Code section 490.2 is simply inapplicable to defendant’s conviction offense.”