People v. Preciado CA2/3

Filed 5/12/16 P. v. Preciado CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B265313

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA106424) v.

ANTHONY AGUILAR PRECIADO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Wade D. Olson, Judge. Affirmed. Lise M. Breakey, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Defendant Anthony Aguilar Preciado pled no contest to felony driving or taking a vehicle under Vehicle Code section 10851, subdivision (a), and admitted the allegation that he suffered a prior conviction for a serious or violent felony. The court sentenced Preciado to 32 months in state prison. After California voters passed Proposition 47, the Safe Neighborhoods and Schools Act, Preciado petitioned the court for reduction of his felony conviction for driving or taking a stolen vehicle to a misdemeanor. The court denied Preciado’s petition, finding that a violation of Vehicle Code section 10851, subdivision (a), is not a theft offense qualifying for reduction of sentence under Proposition 47. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Preciado was arrested after police caught him driving a forklift while trying to leave a construction site. Preciado had removed the forklift’s ignition switch, which the police found in his pocket. Preciado was charged with one count of felony driving or taking a vehicle under Vehicle Code section 10851, subdivision (a). It was alleged that, in 1995, Preciado had suffered a prior felony conviction for robbery (Pen. Code, § 211), a serious or violent felony under Penal Code sections 667.5, subdivisions (b)-(j) and 1170.12, subdivision (b). On July 15, 2014, Preciado pled no contest to the felony driving or taking a vehicle charge and admitted the prior serious or violent felony conviction allegation. The court sentenced Preciado to 32 months in state prison and ordered him to pay, among other fines and fees, a $300 restitution fine under Penal Code section 1202.4, subdivision (b). On April 20, 2015, Preciado filed a petition to reduce his felony conviction to a misdemeanor. (Pen. Code, § 1170.18, subd. (a)). Although Preciado did not check the box alleging that the property at issue in his conviction was worth less than $951, he handwrote on his petition, “The owner got the car back, rest’n order was for $300.” On May 20, 2015, the court held a hearing on Preciado’s petition. The court denied the petition, stating, “This charge does not apply to the Prop. 47. This is