Filed 4/12/16 P. v. Lauer 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                      E063650

v.                                                                      (Super.Ct.Nos. FVI015913 &
                                                                        FVI019883)
JONATHAN LAUER,
                                                                        OPINION
         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Miriam Ivy

Morton, Judge. Affirmed.

         Gerald J. Miller, 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, Charles C. Ragland, and Marvin

E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.




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         In two separate cases, defendant and appellant Jonathan Lauer pled guilty to one

count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) pursuant

to a plea agreement. 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,1 § 1170.18.) Defendant filed a petition for

resentencing, pursuant to Penal Code section 1170.18, in both cases. A trial court found

him ineligible for relief and denied both petitions. Defendant now appeals, arguing that

the court erred in finding him ineligible. We affirm.

                                   PROCEDURAL BACKGROUND

         On October 8, 2002, defendant was charged by felony complaint with unlawful

driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a), count 1) and receiving

stolen property (Pen. Code, § 496d, subd. (a), count 2), in case No. FVI015913. On

November 20, 2002, defendant entered a plea agreement and pled guilty to count 1. In

accordance with the agreement, the court sentenced him to 16 months in state prison and

dismissed count 2.

         On September 10, 2004, defendant was charged by another felony complaint with

unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a), count 1), in case

No. FVI019883. The complaint also alleged that defendant had served one prior prison


         1   All further statutory references will be to the Penal Code, unless otherwise
noted.


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term. (Pen. Code, § 667.5, subd. (b).) On February 16, 2005, defendant entered a plea

agreement and pled guilty to count 1. In accordance with the agreement, the court

sentenced him to two years in state prison and dismissed the prison prior allegation.

       On April 22, 2015, defendant filed Proposition 47 petitions for resentencing in

case Nos. FVI015913 and FVI019883. In both petitions, he alleged that he had

completed his sentences and was requesting to have his felonies redesignated as

misdemeanors. (§ 1170.18.) On May 15, 2015, the court found that defendant’s offenses

did not qualify for resentencing under Proposition 47 and denied the petitions.

                                       ANALYSIS

                    The Court Properly Denied Defendant’s Petitions

       Defendant argues that the court erred in not designating his Vehicle Code section

108512 convictions as misdemeanors under Proposition 47. We disagree.

       A. Relevant Law

       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

       2  Vehicle Code section 10851, subdivision (a), provides: “Any 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 without intent to steal the vehicle, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be
punished . . . .”


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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: section 1170.18.” (Id. at p. 1092.) Section 1170.18, subdivision

(a), provides: “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,

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.”

Thus, “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.” (Rivera, at p. 1091.)

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

provides as follows: “(a) 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 . . . .”




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       B. Defendant Was Ineligible for Relief

       Proposition 47 lists a specific series of crimes that qualify for reduction to a

misdemeanor, separated with the conjunction “or” and ending with the phrase “as those

sections have been amended or added by this act.” (Pen. Code, § 1170.18, subd. (a).)

“The legislative inclusion of . . . crimes . . . necessarily excludes any other[s].” (People

v. Gray (1979) 91 Cal.App.3d 545, 551, superseded by statute on other grounds as stated

in People v. Singleton (1980) 112 Cal.App.3d 418, 424.) Penal Code section 1170.18

does not identify Vehicle Code section 10851 as one of the code sections amended or

added by Proposition 47. (Pen. Code, § 1170.18, subd. (a).) To construe Proposition 47

to include the taking or driving of a vehicle under Vehicle Code section 10851 would

violate the cardinal rule of statutory construction. “‘“When statutory language is clear

and unambiguous, there is no need for construction and courts should not indulge in it.”

[Citation.]’” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) Furthermore, 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. Therefore, based

on the statutory language alone, the court properly found defendant ineligible for relief

under Proposition 47.

       Defendant argues that he was eligible for relief because Penal Code section

1170.18, subdivision (a), lists Penal Code section 490.2 (petty theft). He contends that

under Penal Code section 490.2, the theft of an automobile valued at $950 or less is no

longer grand theft, but petty theft, unless the offense was committed by certain ineligible



                                              5
defendants. (Pen. Code, §§ 490.2, 487, subd. (d)(1).) Penal Code section 490.2 does

bring a host of unspecified statutes defining grand theft within its ambit. (Pen. Code,

§ 490.2, subd. (a).) However, Vehicle Code section 10851 does not appear explicitly in

Penal Code section 490.2 (as does Pen. Code, § 487). Moreover, Vehicle Code section

10851 does not purport to define the taking of a vehicle as grand theft; rather, it simply

proscribes actions, whether or not there was an intent to steal. (Veh. Code, § 10851,

subd (a); see People v. Garza (2005) 35 Cal.4th 866, 876 [“A person can violate [Vehicle

Code] section 10851[, subdivision] (a) ‘either by taking a vehicle with the intent to steal

it or by driving it with the intent only to temporarily deprive its owner of possession (i.e.,

joyriding).’”].) Thus, Penal Code section 490.2 is simply inapplicable to defendant’s

offense.

       Defendant also contends that, in light of the intent of the drafters of Proposition 47

and the rule of lenity, Proposition 47 should be interpreted “in a manner consistent with

the wording of the statute, that results in the lenient treatment of minor theft offenses.”

However, “If the language of a statute is clear and unambiguous, we do not have

anything to construe and consequently do not need to resort to the various forms of

indicia of legislative intent.” (People v. Meyer (2010) 186 Cal.App.4th 1279, 1283.) As

noted, the plain language of Penal Code section 1170.18 is clear and does not include

Vehicle Code section 10851 among the enumerated sections amended or added by

Proposition 47. (Pen. Code, § 1170.18, subd. (a).) Moreover, the statutory language

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



                                              6
before and after Proposition 47. (Veh. Code, § 10851, subd. (a).) Since the language of

the statutes is clear, there is no need to examine the legislative intent. (Meyer, at

p. 1283.) In any event, defendant does not identify any evidence of the drafters’ intent to

include statutes in Proposition 47, other than the ones enumerated. He merely asserts that

the purpose of Proposition 47 was “to reduce the prison population, and thereby prison

spending and government waste, by focusing scarce resources on serious and violent

crime, rather than minor theft and drug possession offenses.” As for defendant’s reliance

on the rule of lenity, such rule is in applicable here. The rule of lenity “is limited to

situations in which intrinsic or extrinsic evidence of the Legislature’s intent results in

reasonable interpretations that stand in equipoise.” (People v. Elder (2014) 227

Cal.App.4th 1308, 1315.) Such circumstance does not exist here.

       Furthermore, even assuming that defendant’s statutory interpretation of

Proposition 47 is correct, he failed to establish that he was eligible for relief. “[A]

petitioner for resentencing under Proposition 47 must establish his or her eligibility for

such resentencing.” (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) To establish

eligibility for resentencing under Penal Code section 1170.18, defendant had the initial

burden of showing that the value of the vehicles was less than $950. The record of

conviction does not establish this fact, as he entered a guilty plea in both cases.

Furthermore, defendant never stated in the petitions that the vehicles were valued at less

than $950, nor did he provide any supporting documentation. Defendant simply failed to

meet his burden of proof. He claims that he “was precluded from presenting any



                                               7
evidence regarding the value of the stolen vehicle by the trial court, which held that

Vehicle Code section 10851 was not subject to Proposition 47, and that any evidence of

valuation was, therefore, irrelevant.” However, as explained in Sherow, “‘“[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 he is asserting.”’” (Sherow, at p. 879.) Sherow concluded

that the lower court properly denied the defendant’s Proposition 47 petition because it

contained no facts or explanation how the value of the items taken were less than $950.

(Sherow, at pp. 877, 880-881.) Like the defendant in Sherow, defendant’s petitions here

contained no facts establishing or even alleging that the value of the items taken were less

than $950. Thus, the trial court properly denied his petitions.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                  HOLLENHORST
                                                                                             J.


We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.




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