People v. Mendoza CA6

Filed 2/29/16 P. v. Mendoza CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042293 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. EE014970)

v.

MANUEL ANTONIO MENDOZA,

Defendant and Appellant.

On November 4, 2014, the electorate passed Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, § 1, approved by voters, Gen Elec. (Nov. 4, 2014), eff. Nov. 5, 2014). Proposition 47 reclassified certain offenses as misdemeanors. Under Penal Code section 1170.18,1 a section added by Proposition 47, eligible persons currently serving felony sentences may petition the court for recall of sentence and be resentenced in accordance with the newly enacted law unless the court finds “an unreasonable risk of danger to public safety.” (§ 1170.18, subds. (a)-(c).) Manuel Antonio Mendoza (appellant) was convicted of several offenses in 2001, including a felony violation of Vehicle Code section 10851, subdivision (a).2 Under that

1 All further references are to the Penal Code unless otherwise stated. 2 Appellant was convicted of violating section 215 (carjacking), Vehicle Code section 10851, subdivision (a), (unlawful driving or taking of a vehicle), and sections 242-243 subdivision (a), (battery), and he was sentenced to a total term of 23 years. The four-year prison term imposed for the violation of Vehicle Code section 10851 was stayed pursuant to section 654. According to appellant’s petition, his release date is May 9, 2022.

section, “[a]ny 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” is guilty of a crime. (See Veh. Code, § 670 [broadly defining “vehicle”].) On March 26, 2015, appellant filed a petition for resentencing, which the trial court denied. Appellant now argues that the trial court erred when it denied the petition because his conviction under Vehicle Code section 10851 was eligible for resentencing under the Proposition 47’s reforms. He directs our attention to section 490.2, which now generally makes theft of property that is valued at $950 or less a petty theft and punishable as a misdemeanor. He also points to section 666, which currently makes only a limited category of petty thefts with priors punishable as either a misdemeanor or felony. (§ 666, subds. (a), (b); see People v. Diaz (2015) 238 Cal.App.4th 1323, 1330; § 490 [punishment for petty theft].) Appellant further asserts that, if Proposition 47’s ameliorative resentencing provisions do not apply to Vehicle Code section 10851, he was denied equal protection of the law under the United States Constitution (U.S. Const., 14th Amend.) and the California Constitution (Cal. Const., art. I, § 7, subd. (a)). He asks this court to reverse the trial court’s order denying his petition and to remand the matter for further proceedings to determine the value of the car and to consider whether there is evidence of his current dangerousness. We conclude that appellant’s petition for resentencing was properly denied. Even assuming arguendo that a person convicted under Vehicle Code section 10851 is eligible to petition for a recall of sentence upon a showing that the circumstances underlying the conviction constituted theft of a vehicle valued at $950 or less (§§ 490.2, 1170.18), appellant failed to make a threshold prima facie showing of such eligibility in his petition and supporting declaration. Neither has he shown that he is similarly situated to a person