People v. Oropeza CA6

Filed 6/21/16 P. v. Oropeza CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042442 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC897730)

v.

FELIPE OROPEZA JR.,

Defendant and Appellant.

Defendant Felipe Oropeza, Jr. appeals from the denial of his petition for resentencing under Proposition 47. Defendant contends Penal Code section 490.2 (Section 490.2) makes him eligible for resentencing on his conviction for theft of a car under Vehicle Code section 10851 (Section 10851).1 The trial court denied the petition on the ground that a conviction under Section 10851 does not meet Proposition 47’s eligibility criteria as a matter of law. We conclude a defendant convicted under Section 10851 may be eligible for Proposition 47 resentencing if he or she can show the offense qualifies as a petty theft under Section 490.2. Here, however, defendant failed to show he committed theft of a vehicle valued at $950 or less. Furthermore, the record shows defendant did not intend to

1 This issue is currently before the California Supreme Court. (People v. Page (2015), formerly at 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)

permanently deprive the owner of possession of the vehicle. Accordingly, we will affirm the denial of his petition. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offenses On March 1, 2008, around 1:45 p.m., Victoria Anderson reported the theft of her 2002 Ford Explorer. Anderson had driven the vehicle to the bank to use the ATM. While at the ATM, she left her keys inside the vehicle with the doors unlocked. When she returned to the vehicle, she discovered it had been stolen. On March 2, 2008, around 12:30 a.m., defendant entered the Spartan Market convenience store and bought a pack of gum. When the clerk rang up the sale, defendant attempted to grab the cash drawer out of the register. The clerk and another employee physically resisted, and defendant fled in the stolen 2002 Ford Explorer. Around 2:00 a.m. that same day, defendant approached a car parked in front of a 7-Eleven store while the driver and two passengers were seated in the car. Defendant got into the back seat of the car and demanded to be taken to his mother’s house. Defendant held a screwdriver against the back of the driver’s neck. The driver drove to a nightclub in downtown San José because he believed police would be there. When they arrived at the nightclub, the driver stopped the car and the passengers fled to find a police officer. After the driver exited the car, defendant got in the driver’s seat and drove away. Police soon spotted the vehicle, and a high speed chase ensued wherein defendant drove recklessly and violated numerous traffic laws. Police eventually forced defendant to stop and took him into custody. Defendant admitted taking the 2002 Ford Explorer. He told police he intended to drive it to San Francisco to help his friend, “Sophia.” But the vehicle was low on gas, so he stopped at the Spartan Market intending to steal money for gas. After he failed to grab cash from the register, he abandoned the Explorer. At that point, he went to the 7-Eleven,