California Court of Appeal Feb 23, 2016 No. E063655Unpublished
Filed 2/23/16 P. v. Owen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063655
v. (Super.Ct.No. FVI1000343)
LANCE CHRISTIAN OWEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Patricia Ihara, 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, Barry Carlton, Seth Friedman and
Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
1
FACTUAL AND PROCEDURAL HISTORY
On November 4, 2014, the voters approved Proposition 47, The Safe
Neighborhoods and Schools Act (Proposition 47); it went into effect the following day.
Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It
added and amended sections of the Penal Code. Penal Code section 1170.18 was added
and provides that a person currently serving a sentence for a felony conviction, whether
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.
On June 25, 2010, prior to the passage of Proposition 47, defendant and appellant
Lance Christian Owen pled guilty to the unlawful taking or driving of a 2005 Chevrolet
Malibu under Vehicle Code section 10851, subdivision (a). The court sentenced
defendant under the terms of the plea agreement to three years in state prison.
On April 22, 2015, defendant filed a Petition for Resentencing (Petition) under
Penal Code section 1170.18. On May 15, 2015, the trial court denied the Petition. The
court found defendant did “not satisfy the criteria in Penal Code section 1170.18 and is
not eligible for resentencing.”
On appeal, defendant contends that Penal Code section 1170.18 should be broadly
interpreted to include violations of Vehicle Code section 10851, and that 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.
2
We affirm the denial of defendant’s Petition.
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 108511 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 stole, and at that hearing, it was the People’s burden to
prove that the value of the vehicle defendant stole was valued greater than $950.
Specifically, defendant claims that although Vehicle Code section 10851 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 burden of alleging facts that he was eligible for resentencing under Penal Code
section 490.2.
1 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.)
3
“The voters approved Proposition 47 at the November 4, 2014 general election,
and it became effective the next day.” (People v. Diaz (2015) 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 section 1170.18 to the Penal Code; subdivision (a) 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 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.”
4
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, overruled on other grounds in Johnson v. Dept.
of Justice (2015) 60 Cal.4th 871.)
Here, we did not rule on this issue—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. We did not decide on this issue because, even
if defendant were eligible for resentencing under the statutes, defendant failed to meet his
initial burden that he was eligible for resentencing. Since we did not hold that persons
convicted pursuant to Vehicle Code section 10851 are not eligible for resentencing
pursuant to Penal Code section 1170.18, we need not reach defendant’s 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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
HOLLENHORST Acting P. J.
CODRINGTON J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant seeking resentencing under Proposition 47 bears the initial burden of alleging and proving facts establishing eligibility, including that the value of the property taken was $950 or less. Because the defendant failed to allege that the vehicle he took was valued under $950, the trial court properly denied his petition.
Issues
Whether a defendant has the initial burden of proving eligibility for resentencing under Penal Code section 1170.18, including the value of the property taken.
Whether a defendant is entitled to a hearing on the value of the stolen property when the petition fails to allege facts establishing eligibility.
Whether the denial of the petition violated the defendant's equal protection rights.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We affirm the denial of defendant’s Petition because he failed to meet his burden of alleging facts that he was eligible for resentencing under Penal Code section 490.2.”
“The petitioner will have the initial burden of establishing eligibility for resentencing under [Penal Code] section 1170.18[, subdivision ](a)”
“defendant made no attempt in the Petition to allege that the value of the 2005 Chevrolet Malibu was less than $950.”