Filed 1/8/16
                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H042062
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. C1245313)

        v.

MANUEL IGNACIO ORTIZ,

        Defendant and Appellant.



        Defendant Manuel Ignacio Ortiz appeals from the denial of his petition for
resentencing under Proposition 47. Defendant contends Penal Code section 490.2
(Section 490.2) makes him eligible for resentencing on his conviction for theft of a car
under Vehicle Code section 10851 (Section 10851). The trial court denied the petition on
the ground that a conviction under Section 10851 does not meet Proposition 47’s
eligibility criteria as a matter of law.
        We hold that a defendant convicted under Section 10851 may be eligible for
Proposition 47 resentencing if he or she can show the offense qualifies as a petty theft
under Section 490.2. Here, defendant must show he committed theft of a vehicle valued
at $950 or less. Because defendant did not satisfy his burden to make such a showing, we
affirm the denial of his petition without prejudice to subsequent consideration of a
properly filed petition.
                       I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense
       On November 6, 2012, Claudia Uchicua and Gumaro Madera told police their
1990 Honda Civic had been stolen. On November 20, 2012, police stopped the car in
San José while defendant was driving it. The front license plate was missing, and the rear
license plate number did not match the registered number. The car key was sitting
loosely in the ignition and the stereo was missing. Police found a pair of pliers on the
floor of the car, and defendant had a shaved key in his sweater. When police asked
defendant for his driver’s license, he told them it had been suspended. Defendant told
police his friend Carlos had loaned him the car, but defendant could not supply a last
name, phone number, or address for Carlos.
       Uchicua told police she did not know defendant and had never given him
permission to drive the car. She said the loss of the car had caused Madera to lose a
week’s wages because he could not drive to work. The car had suffered damage to the
fender, hood, and radiator. The victims had initially bought the car for $1,000 and sold it
for $300 after recovering it.
   B. Procedural Background
       In February 2013, the prosecution charged defendant by information with: Count
One—Vehicle theft (Veh. Code, § 10851, subd. (a)); Count Two—Possession of burglary
tools (Pen. Code, § 466); and Count Three—Driving with a suspended license (Veh.
Code, § 14601, subd. (a)). As to Count One, the information alleged defendant had
suffered a prior felony conviction for violating Section 10851. (Pen. Code, § 666.5.) The
information further alleged defendant had suffered a prior “strike” conviction and served
two prior prison terms. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b).) Defendant
pleaded guilty to all three counts and admitted all allegations. The trial court sentenced
defendant to four years in state prison.

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       In January 2015, defendant petitioned for resentencing under Proposition 47.
(Pen. Code, § 1170.18.) The trial court denied the petition on the ground that Section
10851 “is not one of the offenses that is affected by the provisions of Proposition 47 or
1170.18 of the Penal Code.”
                                        II. DISCUSSION
       Defendant contends the trial court erred by denying his petition because he is
eligible for resentencing under Section 490.2, which defines petty theft and makes it a
misdemeanor. The Attorney General contends the trial court properly denied the petition
because Proposition 47 does not apply to Section 10851 or Penal Code section 666.5.
       We agree with defendant that a conviction under Section 10851 may be eligible
for resentencing under Section 490.2, provided the offense satisfies the elements of petty
theft as defined by that section. However, we conclude defendant failed to make such a
showing in the petition he filed in January 2015.
   A. Background
       In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act, which reduced certain drug- and theft-related offenses to
misdemeanors. As relevant here, the act added Section 490.2, which defined certain
petty thefts as misdemeanors. Proposition 47 also created a new resentencing scheme for
persons serving felony sentences for offenses which were made misdemeanors by the act.
(Pen. Code, § 1170.18, subd. (a).) A person currently serving a sentence for a felony
conviction may petition for recall if the person would have been guilty of a misdemeanor
had Proposition 47 been in effect at the time of the offense. Such a person may request
resentencing in accordance with Section 490.2, among other sections.
       Here, the issue of defendant’s eligibility for resentencing is a question of statutory
construction. “Statutory construction is a question of law which we decide
independently. [Citation.] Our role in construing any statute is to ascertain the
Legislature’s intent and effectuate the purpose of the law. Generally, we accomplish this

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task by giving the statutory words their usual, ordinary meanings. [Citation.] ‘ “If the
words of the statute are clear, the court should not add to or alter them to accomplish a
purpose that does not appear on [its] face . . . or from its legislative history.” ’
[Citation.]” (People v. Love (2005) 132 Cal.App.4th 276, 284.)
       To determine defendant’s eligibility for resentencing, we must determine whether
defendant would have been guilty of a misdemeanor if Proposition 47 had been in effect
in November 2012 when defendant committed his offense. This analysis assumes
Section 490.2 was also in effect at that time. Section 490.2 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 . . . .” (Pen. Code, § 490.2, subd. (a).)
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.
   B. Eligibility for Resentencing under Section 490.2
       The Attorney General contends Proposition 47 did not modify Section 10851.
While Proposition 47 did not list Section 10851 by name or number, the plain language
of Section 490.2 unambiguously includes conduct prohibited under Section 10851.
Section 10851 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 without intent to steal the vehicle . . . .” (Veh Code, § 10851, subd. (a).)
Nothing in this statute addresses the value of vehicles that are taken or driven. Thus,
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



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vehicle. But, “[n]otwithstanding . . . any other law defining grand theft,” Section 490.2
now punishes the theft of a vehicle worth $950 or less as a misdemeanor.
       The Attorney General argues that a violation of Section 10851 is not a form of
theft. But the taking of any property may be a theft if the offender takes the property
with the intent to permanently deprive the owner of possession, or “for so extended a
period as to deprive the owner of a major portion of its value or enjoyment.” (People v.
Avery (2002) 27 Cal.4th 49, 55.) Section 10851 prohibits the driving or taking of a
vehicle “with intent either to permanently or temporarily deprive the owner” of
possession. (Veh. Code, § 10851.) Thus, Section 10851 covers both theft and non-theft
conduct. As the California Supreme has held, “[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
section 10851(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.) We conclude that if a person convicted of violating
Section 10851 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 prior conviction is
eligible for resentencing as a misdemeanor under Proposition 47.
       The Fourth District Court of Appeal recently reached a different result in People v.
Page (2015) 241 Cal.App.4th 714 (Page). The Page court concluded that Section 10851
does not proscribe theft. (Id. at p. 719.) But a separate panel of that court disagreed with
the reasoning of Page. (People v. Gomez (Dec. 23, 2015, E062867) __ Cal.App.4th __
[2015 WL 9435512] (Gomez).) Gomez held that if a defendant takes a vehicle with the
intent to permanently deprive the owner of the vehicle, and if the value of the vehicle is
$950 or less, the offense constitutes a violation of Section 490.2. The Third District
Court of Appeal recently agreed with Page in People v. Haywood (Dec. 30, 2015,

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C078609) __ Cal.App.4th __ [2015 WL 9589809] (Haywood). We disagree with Page
and Haywood, and we agree with the reasoning of Gomez.
       The Attorney General acknowledges that vehicle theft may be covered under
Section 10851, but she nonetheless argues that this defendant was not convicted of theft.
The record shows otherwise. The prosecution explicitly charged defendant in Count One
of the information with vehicle theft. The prosecution’s pleadings repeatedly referred to
the violation as a “theft.” The abstract of judgment lists the offense as vehicle theft. And
more significantly, the facts of the case support a finding of theft. Police found defendant
in possession of the vehicle two weeks after it was stolen, and the vehicle’s rear license
plate had been replaced. If defendant did not intend to permanently deprive the owner of
its possession, he certainly intended to do so “for so extended a period as to deprive the
owner of a major portion of its value or enjoyment.” (People v. Avery, supra, 27 Cal.4th
at p. 55.)
       The Attorney General also argues that Proposition 47 does not apply to Penal
Code section 666.5, under which defendant was punished as a repeat offender. Under
that section, a defendant previously convicted of a felony violation of Section 10851 is
subject to an enhanced penalty if the current offense is also a felony violation of Section
10851. Proposition 47 says nothing about Penal Code section 666.5. But Penal Code
section 666.5 creates a sentence enhancement only where the current offense is also a
felony violation. Section 490.2, by reducing petty theft of a vehicle to a misdemeanor,
removes such misdemeanants from the ambit of Penal Code section 666.5.
   C. Defendant Failed to Establish Eligibility
       In the trial court, defendant presented no facts or evidence apart from those
already in the record of conviction. The trial court did not order an evidentiary hearing,
apparently based upon its conclusion that section 10851 “is not one of the offenses that is
affected by the provisions of Proposition 47 or 1170.18 of the Penal Code.”



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       Defendant contends that, once he files his petition setting forth the grounds
supporting his eligibility, the court must presume him eligible and the prosecution bears
the burden of proving ineligibility beyond a reasonable doubt. Defendant further
contends he is entitled to a jury trial on the matter. The Attorney General, citing People
v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), contends defendant has failed to make
the showing required for eligibility. Defendant responds that the record of conviction is
sufficient to support the showing required under Sherow.
       We agree with the Attorney General that defendant has the burden to make the
initial showing of eligibility under Sherow, supra. As noted earlier, the record of
conviction supports a finding that defendant committed theft of a vehicle, but the record
does not show that the value of the vehicle was $950 or less. The victims bought the
vehicle for $1,000, but the record does not reveal how long ago they bought it or how far
they drove it before it was stolen. They sold it for $300 after recovering it, but they
claimed the vehicle was damaged while in defendant’s possession. From this record, we
cannot determine the value of the vehicle at the time defendant stole it. Accordingly,
defendant has not made the showing required to prove he committed petty theft under
Section 490.2. Because the trial court did not afford him an evidentiary hearing on the
issue, we will affirm the denial of his petition without prejudice to subsequent
consideration of a properly filed petition.1
       As to defendant’s claim that he is entitled to a jury trial on the factual findings
underlying eligibility for resentencing, we conclude he has no right to a jury trial. In
People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 (Kaulick), the Second
District Court of Appeal held that defendants under Penal Code section 1170.126
(Proposition 36) have no Sixth Amendment right to a jury trial on the issue of suitability

       1
        Given this result, we need not address defendant’s argument that it would violate
equal protection principles to treat his conduct differently under Section 10851 as
compared with Section 490.2.

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for resentencing. We agree with Kaulick, and we think its reasoning applies with equal
force in the context of determining eligibility for resentencing under Proposition 47. A
defendant’s Sixth Amendment right to have essential facts found by a jury beyond a
reasonable doubt does not apply to limits on downward sentence modifications. (Dillon
v. United States (2010) 560 U.S. 817, 828 [taking the original sentence as given, any facts
found by a judge at a modification proceeding do not serve to increase the prescribed
range of punishment].)
       For these reasons, we will affirm the denial of defendant’s petition without
prejudice to subsequent consideration of a properly filed petition.
                                     III.   DISPOSITION
              The order denying the petition for resentencing is affirmed without
prejudice to subsequent consideration of a properly filed petition.




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                      _______________________________
                      Márquez, J.




WE CONCUR:




_______________________________
 Rushing, P.J.




_______________________________
 Premo, J.




No. H042062
The People v. Ortiz
Trial Court:                                  Santa Clara County
                                              Superior Court No.: C1245313


Trial Judge:                                  The Honorable Linda R. Clark



Attorney for Defendant and Appellant          Blair Greenberg
Manuel Ignacio Ortiz:                         under appointment by the Court of
                                              Appeal for Appellant




Attorneys for Plaintiff and Respondent        Kamala D. Harris,
The People:                                   Attorney General

                                              Gerald A. Engler,
                                              Chief Assistant Attorney General

                                              Jeffrey M. Laurence,
                                              Acting Senior Assistant Attorney
                                              General

                                              Donna M. Provenzano,
                                              Supervising Deputy Attorney General

                                              Hanna Chung,
                                              Deputy Attorney General




People v. Ortiz
H042062




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