People v. Lugo CA6

Filed 9/27/16 P. v. Lugo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H042388 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 147427)

v.

JOE LOUIS LUGO,

Defendant and Appellant.

Defendant Joe Louis Lugo appeals from an order denying his petition to designate his felony conviction for vehicle theft 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 March of 1991, defendant took a 1975 Dodge van belonging to Ricardo Argundes without Mr. Argundes’s permission. When police tried to stop defendant, he accelerated in an attempt to evade them. Defendant was finally stopped by police, and was under the influence of cocaine and alcohol. On July 25, 1991, defendant was changed by information with vehicle theft (Veh. Code, § 10851, subd. (a)) being under the influence of a controlled substance (Health & Saf. Code, § 11550), and evading a police officer (Veh. Code, § 2800.1). The

information also alleged that defendant had served four prior terms in state proson (Pen. Code, § 667.5, subd. (b)). Defendant was found guilty of all charges following a jury trial. The prison priors were dismissed by the prosecutor, and the court sentenced defendant to four years in state prison. In March 2015, defendant filed a petition to have his vehicle theft conviction designated to a misdemeanor pursuant to Proposition 47. 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.)