California Court of Appeal Apr 11, 2016 No. E063803Unpublished
Filed 4/11/16 P. v. Zenteno 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063803
v. (Super.Ct.No. FSB049665)
RICARDO ARVIZO ZENTENO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed.
Charles R. Khoury, Jr., 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, Charles C. Ragland and Brendon
W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Ricardo Arvizo Zenteno appeals from the denial of his
motion for reconsideration of the earlier denial of his petition under Penal Code section
1170.18 for resentencing of his convictions of two counts of receiving stolen motor
vehicles. (Pen. Code, § 496d, subd. (a).) Defendant contends that his offenses qualified
for resentencing, and the record of conviction showed that the value of the automobiles
could have been less than $950. We affirm.
FACTS AND PROCEDURAL BACKGROUND
On September 6, 2005, defendant was charged in an information with operating a
chop shop (Veh. Code, §§ 250, 10801—count 1); receiving stolen motor vehicles with a
prior conviction of a violation of Vehicle Code section 10851 (Pen. Code, §§ 496d,
subd. (a), 666.5—counts 2 & 3); and receiving stolen property, a license plate (Pen.
Code, § 496, subd. (a)—count 4) with allegations of a prior prison term conviction (Pen.
Code, § 667.5, subd. (b)) and a prior strike conviction (Pen. Code, §§ 1170.12, subds. (a)-
(d), 667, subds. (b)-(i)). The motor vehicle was identified in count 2 as a 2005 Scion and
in count 3 as a 1995 Chevy Camaro.
On December 16, 2005, defendant entered a plea of guilty to all the charges and
admitted the prior allegations. The parties stipulated that the preliminary hearing
transcript provided the factual basis for the plea; however, that transcript has not been
included in the record on appeal. Defendant was sentenced to state prison for a term of
14 years four months.
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As part of his plea agreement, defendant agreed to pay restitution to all victims.
On October 22, 2008, a postdisposition hearing was held to impose a restitution fine in
the amount of $3,678.43, payable to one of the victims. Defendant’s counsel conceded
that the amount of restitution was appropriate.
On March 19, 2015, defendant filed a petition under Penal Code section 1170.18
for resentencing on his conviction of receiving stolen property (Pen. Code, § 496,
subd. (a)). The trial court conducted a hearing at which it denied resentencing on
counts 1 through 3, but granted the petition as to count 4. The trial court amended
defendant’s sentence to a term of 13 years.
On April 22, 2015, defendant filed a petition for reconsideration of the denial of
his petition as to counts 2 and 3.1 The People opposed the petition on the grounds that
Proposition 47 did not authorize resentencing for violations of Penal Code section 496d
and, even if it did, the stolen vehicle in each count had a value of more than $950. The
trial court denied the motion for reconsideration.
DISCUSSION
Proposition 47 and Statutory Amendments
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
1 Although defendant’s petition referred only to his conviction of receiving stolen property (Pen. Code, § 496, subd. (a)) in count 4, the trial court ruled as to all counts, and the People addressed the merits of resentencing as to all counts. Thus, despite any procedural irregularities, we will address the ruling on the merits as to counts 2 and 3.
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from felonies or wobblers to misdemeanors for qualified defendants and added, among
Code section 496 as an offense eligible for reclassification rather than including it under
the new umbrella definition of theft in Penal Code section 490.2. Applying the statutory
construction principle of expressio unius est exclusio alterius, we consider that strong
evidence that the voters did not consider receiving stolen property as a form of theft, and
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we therefore reject the argument that Penal Code section 490.2 should apply to Penal
Code section 496d.
We conclude the trial court properly denied defendant’s motion for
reconsideration.
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1170.18 does not authorize resentencing for convictions under Penal Code section 496d, as that statute was not included in the list of eligible offenses under Proposition 47.
Issues
Whether Penal Code section 1170.18 authorizes resentencing for convictions under Penal Code section 496d.
Whether Penal Code section 490.2 applies to the receipt of a stolen vehicle under Penal Code section 496d.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Penal Code section 496d (buying or receiving a stolen motor vehicle) was not listed as an offense that qualifies for resentencing.”