People v. Juarez CA2/6

Filed 12/15/21 P. v. Juarez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B309938 (Super. Ct. No. 2003012255) Plaintiff and Respondent, (Ventura County)

v.

RICARDO DIAZ JUAREZ,

Defendant and Appellant.

Ricardo Diaz Juarez appeals the denial of his application under Penal Code section 1170.181 to reduce a 2003 felony conviction of unlawful driving or taking of a vehicle to a misdemeanor. The trial court denied the application because it found appellant had a prior conviction of a “super strike” that made him ineligible for relief. (§ 667, subd. (e)(2)(C)(iv).) As respondent correctly concedes, this finding was in error. Appellant does not have a disqualifying prior conviction.

All statutory references are to the Penal Code unless 1

otherwise stated.

Consequently, we reverse the order denying appellant’s application and remand the matter to permit the trial court to determine whether appellant is eligible for relief. FACTS Appellant pleaded guilty in 2003 to unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) Evidence at his preliminary hearing showed the vehicle was a 1989 Jeep Cherokee. Appellant later violated the terms of his probation. In 2004, the trial court sentenced him to two years in state prison. In 2015, appellant was convicted of assault with a semiautomatic firearm (§ 245, subd. (b)), assault with a deadly weapon (§ 245, subd. (a)(1)), street terrorism (§ 186.22, subd. (a)) and resisting a peace officer. (§ 148, subd. (a)(1).) He was sentenced to a term in state prison of 30 years. We affirmed his conviction in an unpublished opinion. (People v. Juarez (Oct. 19, 2016, B263348).) Appellant then filed an application to reduce his 2003 conviction to a misdemeanor on the ground that the vehicle he took was worth less than $950. (§ 1170.18, subd. (f); People v. Page (2017) 3 Cal.5th 1175, 1183.) The district attorney responded that appellant was not eligible for relief because he had “at least one prior conviction of an offense under Penal Code, § 667 (e)(2)(C)(iv).” The trial court accepted that representation and denied the petition. The trial court made no findings regarding the value of the vehicle appellant took. DISCUSSION Proposition 47, adopted in November 2014, added section 490.2 to the Penal Code. This statute provides that theft of property not exceeding $950 in value, “shall be considered petty theft and shall be punished as a misdemeanor . . . .” (§