People v. Moreno CA6

Filed 9/27/16 P. v. Moreno CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042620 (Monterey County Plaintiff and Respondent, Super. Ct. No. SC019321A)

v.

JESUS MORENO,

Defendant and Appellant.

Defendant Jesus Moreno appeals from an order denying his petition to designate his felony conviction for vehicle theft as a misdemeanor pursuant to Proposition 47. (Pen. Code § 1170.18, subd. (f)). On appeal, defendant asserts that the trial court erred in denying his petition based on its finding that he was ineligible for Proposition 47 relief. STATEMENT OF THE FACTS AND CASE In December of 1993, defendant took a 1984 Ford Escort without the owner’s permission. As a result, defendant was charged with two counts of carjacking (Veh. Code § 215, subd. (a)), two counts of second degree robbery (Pen. Code, § 211) and one count of taking a vehicle without the owner’s consent. (Veh. Code § 10851, subd. (a).) In February 1994, defendant pleaded guilty to the violation of Vehicle Code section 10851; all the remaining counts were dismissed. Defendant was sentenced to 16 months in prison.

In February 2015, defendant filed a petition to designate his felony vehicle theft conviction a misdemeanor pursuant to Proposition 47 (Pen. Code § 1170.18, subd. (f)). The trial court denied the petition on the ground that vehicle theft is not listed among the crimes affected by Proposition 47. DISCUSSION Defendant argues that the trial court erred in denying his petition to designate his vehicle theft conviction a misdemeanor pursuant to Proposition 47. He argues that voters intended that the crime of theft of a vehicle valued at $950 or less be included in the sentencing reforms of Proposition 47. In addition, defendant asserts that the court’s denial of his Proposition 47 petition violated his right to equal protection under both the California Constitution and the Fourteenth Amendment. On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 “reduced the penalties for a number of offenses.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow)). Penal Code section 1170.18, which was also added by Proposition 47, “creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing [or designation of the crimes as misdemeanors].” (Sherow, supra, 239 Cal.App.4th at p. 879.) The question of whether defendant is eligible for relief under Proposition 47 is dependent upon whether defendant would have been guilty of a misdemeanor if the proposition had been in effect in March of 1991 when defendant committed his offense. Penal Code section 490.2 provides, in part: “Notwithstanding [Penal Code] Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a