Filed 7/22/16 P. v. Weddell CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051586

         v.                                                            (Super. Ct. No. 05WF0750)

CHRISTOPHER WILLIAM WEDDELL,                                           OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Thomas A. Glazier, Judge. Affirmed.
                   James R. Bostwick, Jr., 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, Andrew Mestman and
Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                       INTRODUCTION
              Defendant Christopher William Weddell appeals from the trial court’s
denial of his petition under Proposition 47, the Safe Neighborhoods and Schools Act
(Pen. Code, § 1170.18), to have his felony conviction for unlawful taking of a vehicle
redesignated as a misdemeanor. He contends that Proposition 47 requires that felony be
redesignated as a misdemeanor because the vehicle involved had a value of $950 or less.
Alternatively, he argues that denying misdemeanor designation for that offense violates
equal protection. Defendant’s challenges fail because he has not established the value of
the vehicle involved was $950 or less. Therefore, we affirm the trial court’s order.
                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              On April 12, 2005, defendant pleaded guilty to felony taking and driving a
motor vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)), and being
under the influence of a controlled substance, a misdemeanor (Health & Saf. Code,
§ 11550, subd. (a)). The felony complaint specified the vehicle that defendant took and
drove was a 1992 Chevrolet Tahoe. Defendant’s factual statement in support of his
guilty plea reads: “I offer to the court the following facts as the basis for my plea of
guilty to a felony: [¶] On or about 5/6/05 I unlawfully took a vehicle w/o owners consent
& was under influence of controlled substance.” The trial court placed defendant on
formal probation for three years.
              In November 2005, defendant admitted a probation violation, and the trial
court revoked and reinstated his probation, and ordered him to serve 90 days in county
jail. In February 2006, the court summarily revoked defendant’s probation for another
probation violation. In March 2006, the court reinstated and terminated defendant’s
probation, at which time the case was closed.
              In November 2014, defendant filed a petition to have his conviction for
violating Vehicle Code section 10851, subdivision (a), redesignated as a misdemeanor.



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The district attorney objected, and the matter was set for a hearing. The trial court denied
defendant’s petition, and defendant filed a timely notice of appeal.
                                        DISCUSSION
              Defendant argues that he is entitled to relief under Proposition 47 because
violations of Vehicle Code section 10851 are theft offenses.
              “Proposition 47 reclassifies as misdemeanors certain non-serious,
nonviolent crimes that previously were felonies, and authorizes trial courts to consider
resentencing anyone who is currently serving a sentence for any of the listed offenses.”
(People v. Awad (2015) 238 Cal.App.4th 215, 218.) As is relevant to this case,
Proposition 47 added Penal Code section 490.2, subdivision (a), which provides that all
thefts where the value of the property taken is $950 or less are petty thefts, and shall be
punished as misdemeanors.
              A violation of Vehicle Code section 10851, subdivision (a) is a “wobbler,”
which may be punished as a misdemeanor or as a felony. That statute was not amended
by Proposition 47, or mentioned in the statutes added by Proposition 47.
              However, Proposition 47 addressed the issue of theft-related offenses by
adding Penal Code section 490.2, subdivision (a), which provides, in relevant part:
“Notwithstanding [Penal Code s]ection 487 [defining grand theft] 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.”
Therefore, if the offense to which defendant pleaded guilty is a theft offense within the
terms of Penal Code section 490.2, he would be entitled to seek relief under
Proposition 47.
              Defendant bears the burden of proof of his eligibility for resentencing under
Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) There is nothing
in the appellate record that shows the value of the vehicle defendant took was $950 or

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less. We affirm the denial of defendant’s petition without prejudice to later consideration
of a petition supported by evidence.
              Defendant also argues that the equal protection clause requires that his
conviction for unlawfully taking a vehicle (Veh. Code, § 10851) be treated the same as
would convictions for theft of a vehicle (Pen. Code, § 487). “The concept of equal
protection recognizes that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally.” (People v. Brown (2012) 54 Cal.4th 314,
328.) The parties disagree about whether those persons violating Vehicle Code
section 10851 are similarly situated with those violating Penal Code section 487.
              Even assuming the correctness of defendant’s argument, he has failed to
prove that he falls within the class of persons who are similarly situated. The felony
complaint, defendant’s guilty plea, and the evidence offered in support of the
Proposition 47 petition fail to establish that the value of the vehicle at issue was $950 or
less. Because defendant has not shown the value of the vehicle was $950 or less, he has
not established he is within the class of persons otherwise entitled to relief under
Proposition 47. Therefore, his equal protection claim fails on that ground alone.

                                        DISPOSITION
              The postjudgment order is affirmed.


                                                  FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.


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