People v. Nodal CA4/3

Filed 7/19/16 P. v. Nodal CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G051360

v. (Super. Ct. No. 08NF3321)

ELISEO NODAL, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Eliseo Nodal appeals from the postjudgment order denying his petition to redesignate two felony convictions as misdemeanors pursuant to Penal Code section 1170.18, enacted as part of Proposition 47, an initiative passed by the voters in November 2014.1 In 2008, Nodal pleaded guilty to a felony violation of Vehicle Code section 10851, subdivision (a) [vehicle theft], a felony violation of section 496d, subdivision (a) [receiving a stolen vehicle], and a violation of Health and Safety Code section 11350, subdivision (a) [possessing a controlled substance]. The trial court sentenced him to three years in prison. In December 2014, Nodal filed a petition pursuant to section 1170.18, subdivision (f), to redesignate these felonies as misdemeanors. The court granted the motion as to the drug possession conviction but denied the motion as to the other two counts. Nodal appealed, contending the broad sweeping language of Proposition 47 applies to the theft or receipt of any kind of stolen property, including vehicles, where the value is less than $950 and where the defendant has no disqualifying prior convictions. This issue has generated conflicting opinions in the Court of Appeal, and it is currently before the California Supreme Court. We need not address it, however, because even assuming automobile theft can be treated as petty theft pursuant to section 490.2, subdivision (a), if the value of the vehicle is $950 or less, Nodal failed to produce evidence of the value of the vehicle, and thus failed to demonstrate his eligibility for relief under section 1170.18, subdivision (f). Consequently, we affirm the postjudgment order without prejudice to subsequent consideration of a properly filed petition. I Section 490.2 was enacted pursuant to Proposition 47. Subdivision (a) of section 490.2 states, “Notwithstanding [s]ection 487 or any other provision of law