Filed 6/30/16 P. v. Vindiola CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,
                                                                         E063203
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. FVI1401279)
v.
                                                                         ORDER MODIFYING OPINION
DINO GERARD VINDIOLA,
                                                                         [NO CHANGE IN JUDGMENT]
         Defendant and Appellant.




THE COURT

         The opinion filed in this matter on June 17, 2016 is modified as follows:

         On page 8, delete the Disposition and replace it with the following:

                            We affirm the order denying defendant’s petition for

                   resentencing on his conviction for driving or taking a vehicle,

                   Vehicle Code section 10851, pursuant to Penal Code section

                   1170.18, without prejudice to consideration of a subsequent

                   petition that supplies evidence of his eligibility.




                                                             1
      Except for this modification, the opinion remains unchanged. This modification

does not effect a change in judgment.

      NOT FOR PUBLICATION IN OFFICIAL REPORTS


                                                           RAMIREZ
                                                                                  P. J.

I concur:


HOLLENHORST
                         J.




                                          2
Filed 6/17/16 P. v. Vindiola CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063203

v.                                                                       (Super.Ct.No. FVI1401279)

DINO GERARD VINDIOLA,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Brian S.

McCarville, Judge. Affirmed.

         Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       Defendant Dino Vindiola is serving a 12-year prison sentence after pleading no

contest to charges stemming from a car theft and admitting six prior prison term

enhancements. Defendant appeals from the trial court’s denial of his request for

resentencing on the conviction for driving or taking a vehicle, Vehicle Code section

10851, pursuant to Penal Code section 1170.18.1 For the reasons discussed below, we

affirm the court’s ruling.

                          STATEMENT OF FACTS AND PROCEDURE

       Few facts of the crime are available in this record. On or about April 7, 2014,

defendant unlawfully drove or took a 1999 Ford Taurus.

       On April 15, 2014, the People filed a second amended complaint charging

defendant with the following six counts: (1) carjacking (§ 215, subd. (a)); (2) assault

with a firearm (§ 245, subd. (a)(2)); (3) unlawful driving or taking of a vehicle (Veh.

Code, § 10851, subd. (a)); (4) receiving stolen property (§ 496, subd. (a)); (5) evading an

officer (Veh. Code, § 2800.1, subd. (a); and (6) grand theft (§ 487, subd. (a)). The People

also alleged defendant had seven prison term priors (§ 667.5, subd. (b)).

       On July 14, 2014, defendant pled no contest to counts two, three, four and six and

admitted six of the prison term priors. Also on that date the court sentenced defendant to

12 years in prison as follows: the upper term of four years for count two, plus eight

months consecutive for counts three, four, and six, plus one year consecutive for each of

the prison term priors.

       1   All section references, are to the Penal Code unless otherwise indicated.


                                               2
       On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next

day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47

classifies as misdemeanors certain drug- and theft-related offenses that previously were

felonies or “wobblers,” unless they were committed by certain ineligible defendants.

(§ 1170.18, subd. (a).)

       On January 20, 2015, appellant filed three petitions for resentencing pursuant to

section 1170.18, in which he asked to be resentenced on counts three, four, and six.

       At a hearing held on February 20, 2015, the trial court reduced count four to a

misdemeanor but found counts three and six ineligible under the statute. The court

reduced defendant’s sentence to 11 years and 4 months.

       This appeal followed. Defendant does not challenge the court’s denial of his

motion regarding count six.

                                        DISCUSSION

       Defendant argues that, although Proposition 47 does not specifically list Vehicle

Code section 10851 as a felony offense eligible for reduction to a misdemeanor, the

inclusion of Penal Code section 490.2 (petty theft of money, labor or property valued at

$950 or less) as an eligible felony necessarily includes theft of a vehicle valued at $950 or

less. Defendant further argues that persons convicted of Vehicle Code section 10851 are

similarly situated to those convicted under Penal Code section 490.2 and therefore the




                                               3
exclusion from Proposition 47 relief for persons convicted of Vehicle Code section 10851

violates his constitutional right to equal protection under the law.

       In response, the People contend (among other things) that, even assuming Penal

Code section 1170.18 does apply to a conviction under Vehicle Code section 10851,

subdivision (a), defendant did not show that the value of the vehicle was $950 or less so

as to make him eligible for resentencing. We find this contention dispositive.

       As stated above, Proposition 47 reduced certain theft-related offenses — provided

they involve property worth $950 or less — as well as certain possessory drug offenses

from felonies (or wobblers) to misdemeanors, unless the defendant has a disqualifying

prior conviction. (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and

Schools Act” (Feb. 2016 rev. ed.) pp. 24-28 (Couzens & Bigelow), available at

<http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of June 10, 2016.)

       Proposition 47 allows persons previously convicted of one of the specified

offenses as a felony to petition to reduce the conviction to a misdemeanor. Specifically,

it enacted section 1170.18, which, as relevant here, provides:

       “(a) A person currently serving a sentence for a conviction, whether by trial or

plea, of a felony or felonies who would have been guilty of a misdemeanor under the act

that added this section (‘this act’) had this act been in effect at the time of the offense

may petition for a recall of sentence before the trial court that entered the judgment of

conviction in his or her case to request resentencing in accordance with Sections 11350,




                                               4
11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,

or 666 of the Penal Code, as those sections have been amended or added by this act.

       “(b) Upon receiving a petition under subdivision (a), the court shall determine

whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the

criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the

petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of

the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal

Code, those sections have been amended or added by this act, unless the court, in its

discretion, determines that resentencing the petitioner would pose an unreasonable risk of

danger to public safety.

       “The statute itself is silent as to who has the burden of establishing whether a

petitioner is eligible for resentencing. However, Evidence Code section 500 provides,

‘[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the

existence or nonexistence of which is essential to the claim for relief or defense that he is

asserting.’ Because defendant is the petitioner seeking relief, and because Proposition 47

does not provide otherwise, ‘a petitioner for resentencing under Proposition 47 must

establish his or her eligibility for such resentencing.’ [Citations.] In a successful

petition, the offender must set out a case for eligibility, stating and in some cases showing

the offense of conviction has been reclassified as a misdemeanor and, where the offense

of conviction is a theft crime reclassified based on the value of stolen property, showing

the value of the property did not exceed $950. [Citations.] The defendant must attach



                                               5
information or evidence necessary to enable the court to determine eligibility.

[Citation.]” (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)

       Defendant did not meet his burden in this case. He did not allege or provide any

information about the value of the car in his petition for resentencing. As a result, the

superior court could not “determine whether the petitioner satisfies the criteria in

subdivision (a).” (§ 1170.18, subd. (b).) Defendant did not meet his burden of alleging a

prima facie case of eligibility for resentencing.

       “Our conclusion that defendant must provide some evidence of eligibility when he

files the petition is supported by the language and structure of the statute. Section

1170.18, subdivision (a) permits offenders currently serving sentences for reclassified

offenses to ‘petition for a recall of sentence’ and ‘request resentencing.’ ‘The statute

does not expressly require the trial court to hold a hearing before considering the

eligibility criteria, nor is there a reference to the taking of “evidence” or other proceeding

that would compel involvement by the parties. The statute simply states: “Upon

receiving a petition for recall of sentence under this section, the court shall determine

whether the petitioner satisfies the [eligibility] criteria.” [Citation.]’ [Citation.] Thus,

the statute appears to assume most petitions can be resolved based on the filings. We

read the statute to fairly imply that in the normal case the superior court will rule on the

basis of the petition and any supporting documentation.” (People v. Perkins, supra, 244

Cal.App.4th at p. 137.)




                                               6
       Thus, “[t]he superior court ‘will be able to summarily deny relief based on any

petition that is facially deficient. Resentencing may be denied based solely on the fact of

a prior conviction of a designated “super strike” or any offense requiring registration as a

sex offender under section 290(c).’ [Citation.] In many cases, a petition will be deficient

because the offender seeks resentencing for a crime that has not been reclassified as a

misdemeanor. [Citation.] In other cases, the superior court may be able to determine

whether a petitioner is eligible for resentencing simply by consulting the record of

conviction or evidence submitted by the parties.” (People v. Perkins, supra, 244

Cal.App.4th at p. 138.)

       It appears probable from the record2 that that the trial court denied the petition, not

because the petition failed to establish the value of the vehicle, but because the court

deemed Proposition 47 inapplicable to a conviction under Vehicle Code section 10851,

subdivision (a). Nevertheless, we may affirm its ruling on the former ground. “[T]he

task of an appellate court is to ‘review the correctness of the challenged ruling, not of the

analysis used to reach it.’ [Citation.] ‘“‘If right upon any theory of the law applicable to

the case, it must be sustained regardless of the considerations which may have moved the

trial court to its conclusion.’ [Citation.]”’ [Citation.]” (People v. Hughes (2012) 202

Cal.App.4th 1473, 1481.)




       2 The relevant portion of the court’s ruling is as follows: “50, People versus
Vindiola, case FVI-1401279. It would be Counts 2 and 3, not eligible, denied.”


                                              7
                                      DISPOSITION

     The order appealed from is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                    RAMIREZ
                                                              P. J.


We concur:

HOLLENHORST
                       J.

McKINSTER
                       J.




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