Filed 12/14/15 P. v. Ceja 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062467

v.                                                                       (Super.Ct.No. FSB1404077)

JOSE CEJA,                                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. Affirmed.

         John L. Staley, 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, and Melissa Mandel and

Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Jose Ceja pleaded guilty to one count of unlawfully taking a vehicle in

violation of Vehicle Code section 10851, subdivision (a). Subsequently, California

voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among

other things established a procedure for specified classes of offenders to have their felony

convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code,

§ 1170.18.) In this appeal, defendant challenges the denial of his petition for

resentencing pursuant to Proposition 47. He contends that the trial court erred by

determining that he was not eligible for relief. We affirm.

                   I. FACTS AND PROCEDURAL BACKGROUND

       On September 8, 2014, defendant pleaded guilty to a felony violation of

unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a).1

The vehicle in question was a 1996 Honda Accord, which had been stolen, and which

defendant was observed to have been driving shortly before being detained by police.

       On November 10, 2014, defendant filed in propria persona a petition for

resentencing pursuant to Penal Code section 1170.18. On November 21, 2014, the trial

court denied the petition, finding that defendant “does not satisfy the criteria in Penal

Code [section] 1170.18 and is not eligible for resentencing.”




       1 Defendant also admitted that he had violated the terms of his probation in a prior
felony case.

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                                     II. DISCUSSION

A. Background Regarding Proposition 47

         On November 4, 2014, voters enacted Proposition 47, and it went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: [Penal Code] section 1170.18. Under section 1170.18, a person

‘currently serving’ a felony sentence for an offense that is now a misdemeanor under

Proposition 47, may petition for a recall of that sentence and request resentencing in

accordance with the statutes that were added or amended by Proposition 47.” (Id. at p.

1092.)

         As relevant to the present case, Proposition 47 added Penal Code section 490.2,

which provides as follows: “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

misdemeanor . . . . (Pen. Code, § 490.2, subd. (a).) Penal Code section 490.2 is

explicitly listed in Penal Code section 1170.18 as one of “those sections [that] have been

amended or added” by Proposition 47. (Pen. Code, § 1170.18, subd. (a).)



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B. Analysis.

       As defendant acknowledges, Penal Code section 1170.18, subdivision (a), does not

identify Vehicle Code section 10851, the offense to which he pleaded guilty, as one of

the Penal Code sections amended or added by Proposition 47. Vehicle Code section

10851 is, however, a lesser included offense to Penal Code section 487, subdivision

(d)(1), grand theft, auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Defendant

argues that Penal Code section 1170.18 explicitly applies to violations of Penal Code

section 487, through the introductory clause of Penal Code section 490.2, so it “logically

applies” to lesser included offenses of Penal Code section 487, including Vehicle Code

section 10851. We disagree.2

       As noted, Penal Code section 1170.18 provides a mechanism for a person “who

would have been guilty of a misdemeanor,” if Proposition 47 had been in effect at the

time of the offense, to petition for resentencing in accordance with certain enumerated

sections that were amended or added by Proposition 47. (Pen. Code, § 1170.18, subd.

(a).) We cannot say that defendant would have been guilty of a misdemeanor had

Proposition 47 been in effect at the time of his offense. Vehicle Code section 10851 is a

“wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851,

subd. (a); see (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4

[listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or


       2 Our analysis here is substantively identical to this court’s opinion in People v.
Page (2015) 241 Cal.App.4th 714, which was filed after the circulation of the tentative
opinion in this matter but prior to oral argument.

                                             4
misdemeanor punishment”].) As defendant concedes, Proposition 47 left intact the

language in Vehicle Code section 10851, subdivision (a), which makes a violation of that

statute punishable as either a felony or a misdemeanor. Based on the statutory language

alone, therefore, whether before or after Proposition 47, defendant could be convicted for

a felony violation of Vehicle Code section 10851.

       In arguing otherwise, defendant focuses on the circumstance that, with Proposition

47’s addition of Penal Code section 490.2, the theft of an automobile valued $950 or less

is no longer grand theft, but instead petty theft, unless the offense was committed by

certain ineligible defendants. (Pen. Code, §§ 490.2, subd. (a), 487, subd. (d)(1).) Thus, a

defendant who could demonstrate that his or her conviction for a violation of Penal Code

section 487, subdivision (d)(1), was based on theft of an automobile valued $950 or less

may be eligible to apply for relief under Proposition 47 and Penal Code section 1170.18.

(Pen. Code, § 1170.18, subd. (a).) The gravamen of defendant’s arguments on appeal is

that a defendant convicted of a lesser included offense of Penal Code section 487 should

be entitled to similar relief.

       The plain language of Penal Code section 1170.18, however, is incompatible with

defendant’s proposed interpretation. Penal Code section 1170.18, subdivision (a)

provides a mechanism for an offender to request to be resentenced “in accordance with”

certain enumerated sections that were amended or added by Proposition 47, and which

provide for different, lesser punishment than applied before the enactment of Proposition

47. (Pen. Code, § 1170.18, subd. (a).) As noted, the statutory language setting the

punishment for violations of Vehicle Code section 10851 remains the same, before and

                                             5
after Proposition 47, and is not included among the enumerated sections amended or

added by Proposition 47. (Veh. Code, § 10851, subd. (a); see Pen. Code, § 1170.18,

subd. (a).) Defendant therefore could not be resentenced in accordance with any of the

sections added or explicitly amended by Proposition 47. Put another way: Exactly the

same sentencing considerations apply to defendant’s conviction offense before and after

Proposition 47, so there is no basis for reconsidering or reducing the sentence that was

initially imposed.

       Defendant contends that Vehicle Code section 10851 was “indirectly amended” by

virtue of Penal Code section 490.2’s reference to Penal Code section 487, and the

circumstance that Vehicle Code section 10851 is a lesser included offense of Penal Code

section 487, subdivision (d)(1). On its face, however, Penal Code section 490.2 does no

more than amend the definition of grand theft, as articulated in Penal Code section 487 or

any other provision of law, redefining a limited subset of offenses that would formerly

have been grand theft to be petty theft. (Pen. Code, § 490.2.) Vehicle Code section

10851 does not proscribe theft of either the grand or petty variety, but rather the taking or

driving of a vehicle “with or without intent to steal.” (Veh. Code, § 10851, subd. (a); see

also People v. Garza (2005) 35 Cal.4th 866, 876 [Veh. Code, § 10851, subd. (a)

“‘proscribes a wide range of conduct,’” and may be violated “‘either by taking a vehicle

with the intent to steal it or by driving it with the intent only to temporarily deprive its




                                               6
owner of possession (i.e., joyriding)’”].) Penal Code section 490.2 is simply inapplicable

to defendant’s conviction offense.3

       To be sure, “Vehicle Code section 10851 is not classified as a ‘serious felony,’ and

it is not as serious as crimes in which violence is inflicted or threatened against a person.”

(People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonable to argue, as

defendant has, that the same policy reasons motivating Proposition 47’s reduction in

punishment for certain felony or wobbler offenses would also apply equally well to

Vehicle Code section 10851.4 Nevertheless, if Proposition 47 were intended to apply not

only to reduce the punishment for certain specified offenses, but also any lesser included

offenses, we would expect some indication of that intent in the statutory language. We


       3  Even if we were to assume that Penal Code section 490.2 applied as defendant
would have it—to reduce some Vehicle Code section 10851 convictions that would
otherwise be felonies to misdemeanors, at least where the facts underlying the conviction
involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does
not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only
that he unlawfully took and drove a 1996 Honda Accord; nothing in the record
establishes the value of the vehicle to be $950 or less. The burden of proof lies with
defendant to show the facts demonstrating his eligibility for relief, including that the
value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239
Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition,
giving virtually no information regarding his eligibility for resentencing, instead merely
asserting the bald (and erroneous) conclusion that he was eligible.

       4  That said, we find nothing absurd or irrational about the legislative
determination that theft of certain automobiles of very low value should be treated as
petty theft, and thus potentially a misdemeanor, while retaining the statutory option of
punishing the unlawful taking or driving of a vehicle, regardless of intent to steal, as a
felony violation of Vehicle Code section 10851. (See People v. Wilkinson (2004) 33
Cal.4th 821, 838-839 [finding rational basis for statutory scheme allowing the “‘lesser’”
offense of battery without injury to be punished more severely than the “‘greater’”
offense of battery with injury].)

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find nothing of the sort. It is simply not our role to interpose additional changes to the

Penal Code or the Vehicle Code beyond those expressed in the plain language of the

additions or amendments resulting from the adoption of Proposition 47.

       In short: The offense to which defendant pleaded guilty is not among those

reduced to a misdemeanor by Proposition 47, so the trial court correctly determined him

to be ineligible for recall of sentence and resentencing pursuant to Penal Code section

1170.18.

                                       III. DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                         Acting P. J.
We concur:

       MCKINSTER
                                  J.

       KING
                                  J.




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