by trial or plea, who would have been guilty only of a misdemeanor had Proposition 47
been in effect at the time the plea was entered, or at the time of trial, may petition for a
recall of the sentence before the trial court that entered the judgment of conviction in his
or her case to request resentencing.
Prior to the passage of Proposition 47, defendant entered a guilty plea to a felony
violation of Vehicle Code section 10851 for unlawfully driving and taking a 2002 Chevy
Suburban. Defendant filed a petition to recall his sentence (Petition) arguing that his
conviction for violating Vehicle Code section 10851 should be reduced to a misdemeanor
violation of petty theft under Penal Code section 490.2. The trial court denied the
petition on the ground that all Vehicle Code section 10851 convictions are not eligible for
resentencing under Proposition 47.
Defendant now claims on appeal as follows: (1) Penal Code section 1170.18
should be broadly interpreted to include violations of Vehicle Code section 10851; (2) the
trial court should have provided the parties an opportunity to litigate the value of the loss
to the victim prior to ruling on his Petition to determine if the offense committed was
petty theft (loss to the victim was less than $950) within the meaning of Penal Code
section 490.2; (3) the People had the burden of proving at the hearing on the Petition that
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the value of the vehicle taken exceeded $950; (4) the valuation of the loss for a temporary
taking of an automobile should be that amount of compensation to make the victim
whole, not the market value of the automobile; and (5) equal protection requires that
offenses under Vehicle Code section 10851 be treated like violations of Penal Code
section 487, subdivision (d)(1), and be reduced to misdemeanors. We affirm the denial
of the Petition.
FACTUAL AND PROCEDURAL HISTORY
On July 8, 2014, a felony complaint was filed against defendant in San Bernardino
County case No. FSB1402290, charging him with the unlawful driving or taking of a
vehicle in violation of Vehicle Code section 10851, subdivision (a). Specifically, he was
charged with taking a 2002 Chevy Suburban from Rotolo Chevrolet without the consent
of and with the intent, either permanently or temporarily, to deprive the said owner of
title to and possession of said vehicle. It was also alleged that he had served three prior
prison terms within the meaning of Penal Code section 667.5, subdivision (b).
On July 9, 2014, defendant entered a plea of guilty to one count of violating
Vehicle Code section 10851.1 He agreed to a midterm sentence of two years. The
sentence was to run concurrent to the sentence in another case, No. FSB1205624, in
1 As part of defendant’s plea agreement, he agreed to waive his right to appeal as follows: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain.” While normally this court would conclude defendant has no right to appeal to this court contesting his sentence, since Proposition 47 was passed after he entered into the plea agreement, we cannot conclude he knowingly and intelligently waived his right to file the Petition. (People v Saunders (1993) 5 Cal.4th 580, 590, fn. 6 [waiver is the “ ‘ “intentional relinquishment or abandonment of a known right” ’ ”].)
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which defendant also entered a guilty plea to a violation of Health and Safety Code
section 11370.1, possession of a controlled substance while armed with a firearm.
On July 9, 2014, defendant was sentenced pursuant to the plea agreement to two
years, and the trial court recommended that his sentence be served at a fire camp. The
prior prison term allegations were struck by the People. This sentence was ordered to run
concurrent to the four-year sentence in case No. FSB1205624.
On November 19, 2014, defendant filed his Petition. His Petition sought to have
both his conviction of violating Health and Safety Code section 11370.1, subdivision (a),
and his conviction of violating Vehicle Code section 10851, reduced to misdemeanors
pursuant to Proposition 47. He stated that both offenses qualified as misdemeanors, but
provided none of the facts pertaining to the underlying offenses. Defendant claimed,
“Gabriel Gomez Jr. was charged with theft of property under $950. Gabriel Gomez Jr.’s
grand theft charge became a felony because of defendant’s criminal history (specifically
the strike prior). As such, Gabriel Gomez Jr.’s VC § 10851 (a) qualifies for the new
provisions created by Prop. 47 for the reduction of his felony charges to a misdemeanor.”
He also alleged that he had exhibited exemplary behavior while in custody.
On December 12, 2014, defendant’s Petition was called for a hearing along with
several other cases involving petitions filed pursuant to Penal Code section 1170.18.
Defendant was represented by a deputy public defender. The trial court noted it had read
all of the petitions. The trial court ruled as to several cases, including defendant’s case,
without hearing any argument, as follows: “Then in the following cases, the defendant’s
convicted charge does not qualify for relief under Prop. 47 or Penal Code Section
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1170.18, so the petition to reduce the conviction to a misdemeanor and petition for
resentencing is denied as to each of the following cases—the previously imposed
sentences remain in effect. [¶] . . . [¶] . . . Numbers 86 and 87, Gabriel Gomez.”
DISCUSSION
A. RESENTENCING PURSUANT TO PENAL CODE SECTION 1170.18
Defendant claims that Penal Code section 1170.18 should be interpreted to include
Vehicle Code section 10851 as a felony that can be reduced to a misdemeanor violation
of Penal Code section 490.2. He also insists that the trial court should have held a
hearing on the value of the vehicle he stole, and at that hearing, it was the People’s
burden to prove that the value of the vehicle he stole was greater than $950. Specifically,
defendant claims that although Vehicle Code section 108512 is not mentioned in Penal
Code section 1170.18, Penal Code section 490.2 redefines all thefts as being
misdemeanors if the value of the item taken is less than $950 regardless of the type of
property. We affirm the denial of defendant’s Petition because he failed to meet his
2 Vehicle Code section 10851 provides, “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or pursuant to subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.” This section “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 owner of possession (i.e. joyriding).’ ” (People v. Garza (2005) 35 Cal.4th 866, 876.)
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burden of alleging facts that he was eligible for resentencing under Penal Code section
490.2.
“The voters approved Proposition 47 at the November 4, 2014 general election,
and it became effective the next day.” (People v. Diaz. (2105) 238 Cal.App.4th 1323,
1328.) “Proposition 47 ‘was intended to reduce penalties “for certain nonserious and
nonviolent property and drug offenses from wobblers or felonies to misdemeanors.” ’ ”
(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) “ ‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory construction. [Citation.]
Thus, “we turn first to the language of the statute, giving the words their ordinary
meaning.” [Citation.] The statutory language must also be construed in the context of
the statute as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] When the language is ambiguous, “we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot pamphlet.”
[Citation.]’ [Citation.] In other words, ‘our primary purpose is to ascertain and
effectuate the intent of the voters who passed the initiative measure.’ ” (People v.
Briceno (2004) 34 Cal.4th 451, 459.)
Proposition 47 added Penal Code section 1170.18 to the Penal Code. Subdivision
(a) of Penal Code section 1170.18, provides in pertinent part, “A person currently serving
a sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
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resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.” Under Penal Code section 1170.18,
subdivision (b), the trial court first determines whether the petition has presented a prima
facie case for relief under Penal Code section 1170.18, subdivision (a). If the petitioner
satisfies the criteria in subdivision (a), then he will be resentenced to a misdemeanor,
unless the court, within its discretion, determines the petitioner would pose an
unreasonable risk to public safety. (Pen. Code, § 1170.18, subd. (b).)
Penal Code section 490.2 was added to the Penal Code. (People v. Rivera (2015)
suspect classifications or the alleged infringement of a fundamental interest,” the
classification is upheld unless it bears no rational relationship to a legitimate state
purpose.’ ” (People v. Singh (2011) 198 Cal.App.4th 364, 369; see also People v.
Hofsheier (2006) 37 Cal.4th 1185, 1199.)
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We have not concluded in this case that a person who is convicted pursuant to
Vehicle Code section 10851 is not eligible for resentencing under Penal Code section
1170.18, but a person who is convicted of violating Penal Code section 487, subdivision
(d)(1), would be eligible for resentencing. Rather, we have concluded that defendant was
required to show that he would have been eligible to be convicted of the misdemeanor
violation of Penal Code section 490.2 had it been effect at the time he committed his
offense. It is conceivable that a person who has been convicted of a violation of Vehicle
Code section 10851, and files an adequate petition alleging the value of the vehicle taken
was less than $950, and therefore would have been guilty only of a violation of Penal
Code section 490.2 at the time of the offense, could be eligible for resentencing both
based on the language in the statute and the Legal Analyst’s comments to Proposition 47.
However, we need not decide this issue because we have found that he failed to meet his
initial burden that he was eligible for resentencing, and we have not held that persons
convicted pursuant to Vehicle Code section 10851 are not eligible for resentencing
pursuant to Penal Code section 1170.18. As such, we need not reach his equal protection
claim as it is not properly before this court.
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DISPOSITION
The trial court’s order denying defendant’s petition to recall his sentence is
affirmed. Nothing in this decision or in Penal Code section 1170.18 forecloses
defendant’s ability to file a new petition alleging sufficient facts to support his claim that
his conviction was a violation of Penal Code section 490.2.
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. A defendant seeking resentencing under Proposition 47 for a Vehicle Code section 10851 conviction bears the initial burden of alleging and proving that the value of the vehicle taken was $950 or less to qualify for relief under Penal Code section 490.2. Because the defendant failed to allege these facts in his petition, the trial court properly denied his request for resentencing.
Issues
Whether a defendant has the burden of alleging facts showing the value of the stolen vehicle was $950 or less to qualify for resentencing under Proposition 47.
Whether the trial court erred in denying the petition without holding a hearing on the value of the vehicle.
Whether the denial of the petition violated the defendant's equal protection rights.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court here erred by finding that all violations of Vehicle Code section 10851 are not entitled to resentencing under Penal Code section 1170.18.”
“Defendant had the initial burden of proving that he would have been charged and found guilty of only a violation of Penal Code section 490.2 because the value of the vehicle he took was less than $950.”
“The Petition was properly denied because defendant failed to establish that he was eligible for resentencing pursuant to Penal Code section 1170.18, subdivision (a).”