People v. Lopez CA6

Filed 1/25/16 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042129 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1485792)

v.

JACOB JEDEMIAH LOPEZ,

Defendant and Appellant.

Defendant Jacob Jedemiah Lopez appeals from an order denying his petition for resentencing under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal, Lopez contends the trial court erred in ruling he was ineligible for resentencing. As set forth below, we conclude that the trial court erred in ignoring the plain language of Penal Code section 490.2,1 which was added by Proposition 47, and we will reverse. I. FACTUAL AND PROCEDURAL BACKGROUND On June 9, 2014, the Santa Clara County District Attorney filed a complaint charging Lopez with vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a), § 666.5; count 1), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 2), and possession of a motor vehicle master key (§ 466.5, subd. (a), count 3). The complaint further alleged Lopez had two prison priors. (§ 667.5, subd. (b).)

1 Unspecified statutory references are to the Penal Code.

On September 18, 2014, Lopez pleaded no contest to vehicle theft with a prior conviction (count 1) and being under the influence of a controlled substance (count 2). In exchange, the prosecutor agreed to dismiss the charge of possession of a master key (count 3) and the two prison prior allegations. On November 3, 2014, the trial court sentenced Lopez to three years in county jail on count 1 under section 1170, subdivision (h)(1). On count 2, Lopez was sentenced to 90 days in county jail which the trial court deemed served at sentencing. On February 2, 2015, Lopez petitioned for resentencing under Proposition 47. The petition requested recall of the felony sentence for the vehicle theft and resentencing as a misdemeanor. In support of his petition, Lopez filed a brief regarding the applicability of Proposition 47 to violations of Vehicle Code section 10851. In that brief, Lopez alleged that the vehicle he stole, a 1987 Acura Legend, was worth less than $950, and that he should thus be resentenced as a misdemeanant. The trial court denied the resentencing petition on March 10, 2015. At the hearing on the petition, the trial court explained that Lopez was ineligible for resentencing because “Proposition 47 and Penal Code Section 1170.18 specifically make no reference whatever [sic] to Vehicle Code Section 10851, and notably not to Penal Code Section 496d.” Lopez appeals the denial of his petition.2 II. DISCUSSION Lopez argues the trial court erred in finding him ineligible for resentencing under Proposition 47, because the voters intended all thefts involving property valued under $950 to be treated as misdemeanors. He also asserts it is a violation of equal protection principles to deny misdemeanor sentencing for a conviction for stealing a vehicle worth