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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



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       “[A] petitioner for resentencing under Proposition 47 must establish his or her
eligibility for such resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The
petitioner for resentencing has the “initial burden of proof” to “establish the facts[] upon
which his or her eligibility is based.” (Id. at p. 880.) If the crime under consideration is a
theft offense, “ ‘the petitioner will have the burden of proving the value of the property
did not exceed $950.’ [Citation.]” (Id. at p. 879.) In making such a showing, “[a] proper
petition could certainly contain at least [the petitioner’s] testimony about the nature of the
items taken.” (Id. at p. 880.) If the petition makes a sufficient showing, the trial court
“can take such action as appropriate to grant the petition or permit further factual
determination.” (Ibid.)
       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, subdivision (a) provides, in part: “Notwithstanding 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 . . . .” Nothing in the plain language of the statute—which covers “any
property by theft”—excludes the theft of a vehicle. Thus, if defendant stole a vehicle with
a value of $950 or less, that offense would have been a misdemeanor under section 490.2.
       While Proposition 47 does not list Vehicle Code section 10851 by name or
number, the plain language of section 490.2 unambiguously includes conduct prohibited
under Vehicle Code section 10851. Vehicle Code section 10851, subdivision (a)
punishes “[a]ny person who drives or takes a vehicle not his or her own, without the
consent of the owner thereof, and with intent either to permanently or temporarily deprive
the owner thereof of his or her title to or possession of the vehicle, whether with or

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without intent to steal the vehicle . . . .” Nothing in this statute addresses the value of
vehicles that are taken or driven. Thus, Vehicle Code section 10851 includes the taking
of a vehicle worth $950 or less by a person who intends to permanently deprive the
owner of his or her title to or possession of the vehicle. But, “[n]otwithstanding . . . any
other law defining grand theft,” Penal Code section 490.2 now punishes the theft of a
vehicle worth $950 or less as a misdemeanor.
       Vehicle Code section 10851 prohibits the driving or taking of a vehicle “with
intent either to permanently or temporarily deprive the owner” of possession. Our
California Supreme has held, “[Vehicle Code section 10851] defines the crime of
unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession is a form of theft, and the taking may be
accomplished by driving the vehicle away. For this reason, a defendant convicted under
[Vehicle Code] section 10851[, subdivision] (a) of unlawfully taking a vehicle with the
intent to permanently deprive the owner of possession has suffered a theft
conviction . . . .” (People v. Garza (2005) 35 Cal.4th 866, 871, original italics.) It
follows that if a person took a vehicle worth $950 or less with the intent to permanently
deprive the owner of its possession, such conduct is now petty theft, and the conviction is
eligible for designation as a misdemeanor under Proposition 47.
       Our appellate courts are in disagreement over the issue of whether theft
convictions under Vehicle Code section 10851 can be eligible for Proposition 47
sentencing reforms, and we have not yet received guidance from the California Supreme
Court. (See People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016,
S230793; People v. Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016,
S232250; People v. Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016,
S234150; People v. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016,
S232344; People v. Gomez (Aug. 20, 2009, E062867) rehg. granted Jan. 11, 2016,

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subsequent opn. not certified for pub. Mar. 15, 2016, review granted May 25, 2016 [2009
WL2581321]; see also, People v. Orozco (Aug. 8, 2008, D067313) rehg. granted Feb. 8,
2016, subsequent opn. not certified for pub. May 25, 2016, petn. for review filed Jul. 1,
2016 [2008 WL 3198770].) Until we receive guidance from the Supreme Court, we will
follow our reasoning in previous cases, and hold that a conviction of theft of a vehicle
valued at under $950 under Vehicle Code section 10851 is eligible for designation as a
misdemeanor under Proposition 47.
       Here, defendant’s argument that his conviction should be designated as a
misdemeanor is premised on the assumption that the 1975 Dodge van that he stole in
1991vehicle was valued at $950 or less. He argues in his opening brief that “the nature of
the stolen vehicle (1975 Dodge [v]an) and the year in which the crime occurred (1991)
provide a reasonable inference of fact.” However, nothing in the record shows that the
van was worth $950 or less.
       A bare assertion regarding the vehicle’s value, without any evidence supporting it,
is insufficient to establish the vehicle’s value. (See Sherow, supra, 239 Cal.App.4th at
p. 880 [a proper resentencing petition could contain “at least” the petitioner’s testimony
regarding the stolen item].) The value of a stolen item is measured by the fair market
value of the item at the time and place of its theft. (People v. Pena (1977) 68 Cal.App.3d
100, 102-104; Pen. Code § 484, subd. (a); CALCRIM No. 1801.) There is nothing in the
record to show that at the time of the theft, the van was worth $950 or less.
       Because the record does not show that the stolen 1975 Dodge van was worth $950
or less, defendant has failed to demonstrate error, and we must affirm.1 We will affirm
without prejudice. We note that a petition containing a declaration regarding the fair
market value of the vehicle could be sufficient to set the matter for hearing. (See Sherow,
       1
         Given this result, we need not address defendant's argument that it would violate
equal protection principles to treat his conduct differently under Vehicle Code
section 10851 as compared with Penal Code section 490.2.
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supra, 239 Cal.App.4th at p. 880 [a proper Proposition 47 petition “could certainly
contain at least” the petitioner’s testimony about the stolen item, and on a sufficient
showing the trial court “can take such action as appropriate to grant the petition or permit
further factual determination”].)
                                       DISPOSITION
       The order denying defendant’s Proposition 47 petition is affirmed without
prejudice to subsequent consideration of a petition that demonstrates that the stolen
vehicle was valued at $950 or less.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           GROVER, J.




People v. Lugo
H042388




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