Filed 6/3/16 P. v. Smith CA4/2
Opinion following rehearing



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063504

v.                                                                       (Super.Ct.No. FVI800708)

CHARLES AUSTIN SMITH,                                                    OPINION

         Defendant and Appellant.



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

Morton, Judge. Affirmed.

         Coreen Ferrentino, 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, Barry Carlton and Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       On November 4, 2014, the voters approved Proposition 47, The Safe

Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain

nonserious, nonviolent felonies to misdemeanors. Proposition 47 allows a person

convicted of a felony prior to its passage, who would have been guilty of a misdemeanor

under Proposition 47, to petition the court to reduce his or her felony to a misdemeanor

and be resentenced.

       On September 19, 2008, prior to the passage of Proposition 47, defendant and

appellant Charles Austin Smith entered a guilty plea to a felony violation of attempted

unlawful driving or taking a vehicle, a 1999 Toyota Camry, within the meaning of Penal

Code section 664 and Vehicle Code section 10851. Defendant filed a one-page petition

to recall his sentence (Petition) stating that his conviction of “VC 664/10851(a)” should

be reduced to a misdemeanor. The trial court denied the Petition on the grounds that

defendant’s conviction was not eligible for resentencing under Proposition 47.

       Defendant now claims on appeal as follows: (1) his conviction for violating Penal

Code section 664/Vehicle Code section 10851 is properly considered a theft offense,

which is a misdemeanor under the newly enacted Proposition 47; (2) the omission of

Penal Code section 664/Vehicle Code section 10851 from Proposition 47 violates equal

protection; and (3) his constitutional rights were violated when the trial court denied his

Petition without holding a hearing and securing his presence at the hearing.

                      FACTUAL AND PROCEDURAL HISTORY

       On April 9, 2008, an Information was filed against defendant in San Bernardino

County case No. FVI800708, charging him with the unlawful driving or taking of a


                                              2
vehicle in violation of Vehicle Code section 10851, subdivision (a). Specifically, he was

charged with taking a 1999 Toyota Camry from Ernesto Guereque without the consent of

and with intent, either permanently or temporarily, to deprive the said owner of title to

and possession of said vehicle. He was further charged with the crime of receiving stolen

property, the same Toyota Camry, within the meaning of Penal Code section 496d,

subdivision (a). It was further alleged as to both counts pursuant to Penal Code section

666.5 that he had previously been convicted of a violation of Penal Code section 496d,

subdivision (a). It was also alleged that defendant had served three prior prison terms

within the meaning of Penal Code section 667.5, subdivision (b).

       On September 19, 2008, defendant signed a plea agreement in which he agreed to

enter a plea of guilty to one count of “attempt unlawful driving or taking a vehicle”

within the meaning of Penal Code section 664 and Vehicle Code section 10851,

subdivision (a). On September 19, 2008, defendant pled guilty in open court to one count

of attempted unlawful taking or driving of a motor vehicle, a felony violation of Penal

Code section 664/Vehicle Code section 10851, subdivision (a). Counsel stipulated to and

the trial court found the factual basis of the plea based on the preliminary hearing

transcript. Defendant was sentenced to eight months in state prison. He was given 272

days of custody credit. As a result, he was discharged on the case. The remaining

charges were dismissed. The abstract of judgment listed his conviction as “VC

664/10851(A) ATTEMPT: TAKE VE.”

       On April 9, 2015, defendant filed his Petition. It consisted of one page.

Defendant requested a hearing date of May 1, 2015. The sole information on his


                                             3
conviction provided in the Petition was as follows: “Defendant in the above-entitled case

requests that, pursuant to Penal Code § 1170.18, the following felony violation(s)

VC664/10851(a) be designated as misdemeanor(s).” He stated that he had completed his

sentence. Defendant provided no additional facts or argument to the trial court.

       On April 9, 2015, the People filed a one-page response to the Petition and stated,

“Defendant is not entitled to the relief requested. Reason: [¶] VC 10851 is not affected

by Prop 47.”

       On April 30, 2015, the trial court issued a one-page denial of the Petition. It did

not conduct a hearing. It found, “PC 664/VC 10851(A) does not qualify under Prop 47,

PC 1170.18. Petition denied.” Defendant filed an amended notice of appeal from the

denial of his Petition on May 14, 2015.

                                      DISCUSSION

       Defendant’s Petition filed in the trial court merely cited to his conviction of

violating Penal Code section 664/Vehicle Code section 10851, and that it should be

reduced to a misdemeanor. No further facts or argument regarding his eligibility for

resentencing were presented in the Petition. On appeal, defendant contends the trial court

erred by denying the Petition because the language of Proposition 47 is broadly inclusive

and covers all theft-related offenses where the value of the stolen property is $950 or less.

He insists that when a person violates Vehicle Code section 10851, subdivision (a) by

taking a car with the intent to permanently deprive the owner of possession, “he in

essence suffers a theft conviction.” He further argues that since he was only convicted of

an attempted violation of Vehicle Code section 10851, the value of the vehicle was


                                              4
essentially zero. He contends he qualified for reduction of his felony conviction to a

misdemeanor violation of Penal Code section 490.2.

       While defendant’s claims may in fact be true, I affirm the denial of defendant’s

Petition because he failed to meet his burden in the trial court of alleging facts that he

was eligible for resentencing under Proposition 47. I further reject he has properly raised

an equal protection claim. Finally, he was not entitled to a hearing on his eligibility to be

resentenced.

       A.      INADEQUACY OF PETITION

       “The voters approved Proposition 47 at the November 4, 2014 general election,

and it became effective the next day.” (People v. Diaz. (2105) 238 Cal.App.4th 1323,

1328.) “Proposition 47 ‘was intended to reduce penalties “for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”’”

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.)

       Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal Code

section 1170.18, provides in pertinent part, “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

Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have

been amended or added by this act.” Under Penal Code section 1170.18, subdivision (b)


                                              5
the trial court first determines whether the petition has presented a prima facie case for

relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the

criteria in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,

within its discretion, determines the petitioner would pose an unreasonable risk to public

safety. (Pen. Code, § 1170.18, subd. (b).)

       Penal Code section 1170.18, subdivision (f) provides: “A person who has

completed his or her sentence for a conviction, whether by trial or plea, of a felony or

felonies who would have been guilty of a misdemeanor under this act had this act been in

effect at the time of the offense, may file an application before the trial court that entered

the judgment of conviction in his or her case to have the felony conviction or convictions

designated as misdemeanors.” Penal Code section 1170.18, subdivision (h) provides:

“Unless requested by the applicant, no hearing is necessary to grant or deny an

application filed under subsection (f).”

       Vehicle Code section 10851 is not listed in Penal Code section 1170.18, and the

issue of whether a defendant is eligible for resentencing for a violation of that section is

currently under review in the California Supreme Court in People v. Page (2015) 241

Cal.App.4th 714, review granted, January 27, 2016, S230793. I only briefly address the

possibility that a violation of Vehicle Code section 10851 could be reduced to a

misdemeanor under Proposition 47.

       Section 490.2 was added to the Penal Code. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part,

“Notwithstanding [Penal Code s]ection 487 or any other provision of law defining grand


                                              6
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.” (Italics added.) Penal

Code section 487, subdivision (a), provides that if the value of the money, labor, real or

personal property taken exceeds $950, the offense is a felony. Penal Code section 487,

subdivision (d)(1) provides that grand theft occurs if the property is an automobile,

regardless of the value.

       Penal Code section 1170.18 clearly states that a defendant must show he was

convicted of a felony but would have been convicted of a misdemeanor if Proposition 47

had been in effect at the time of the offense. For an offense under Penal Code section

490.2, which was added to the Penal Code, defendant had to allege facts in the Petition

that he would have been guilty of a misdemeanor violation of Penal Code section 490.2

rather than the felony conviction. It is true that Vehicle Code section 10851 is not listed

in Penal Code section 1170.18. However, Vehicle Code section 10851 can be violated by

the taking of a vehicle with the intent to permanently deprive the owner of the vehicle.

Assuming that a defendant takes a vehicle valued under $950, such violation could

constitute a violation of Penal Code section 490.2.

       However, in this case, defendant failed to prove that the value of the vehicle in this

case was under $950, or to allege any facts to support that he was eligible for

resentencing. The petitioner has the burden of establishing eligibility for relief under

Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880

(Sherow).)


                                             7
        In Sherow, the defendant was ultimately convicted of five counts of second degree

burglary, and filed a petition to recall his sentence, which was denied. As set forth in the

opinion, “Sherow appeals challenging only the decision as to counts 1 and 2. He

contends the record does not show the loss as to each count exceeded $950 and thus the

two counts should be resentenced as misdemeanors. Sherow’s petition sought

resentencing as to all five counts without any separate discussion of the counts, no

reference to facts or evidence and no argument.” (Sherow, supra, 239 Cal.App.4th at p.

877.) The People responded that Sherow had failed to meet his burden under Penal Code

section 1170.18 to show the losses did not exceed $950. (Sherow, at p. 877.) The

defendant, in turn, argued that his “blanket request” to reduce his convictions to

misdemeanors, without any discussion or elaboration, placed the burden on the

prosecution to discern whether he was eligible for relief under Proposition 47. (Id. at p.

878.)

        The Sherow court observed that, “Proposition 47 does not explicitly allocate a

burden of proof.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The court stated that

“applying established principles of statutory construction I believe a petitioner for

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

resentencing. In such cases, it is important to keep in mind a person . . . was validly

convicted under the law applicable at the time of the trial of the felony offenses. It is a

rational allocation of burdens if the petitioner in such cases bear[s] the burden of showing

that he or she is eligible for resentencing of what was an otherwise valid sentence.” (Id.

at p. 878.)


                                              8
       The Sherow court also referred to background information prepared by “Judge J.

Richard Couzens and Presiding Justice Tricia A. Bigelow” on Proposition 47, which

provided, “‘The petitioner will have the initial burden of establishing eligibility for

resentencing under section 1170.18(a): i.e., whether the petitioner is currently serving a

felony sentence for a crime that would have been a misdemeanor had Proposition 47 been

in effect at the time the crime was committed. If the crime under consideration is a theft

offense under sections 459.5, 473, 476a, 490.2 or 496, the petitioner will have the initial

burden of proving the value of the property did not exceed $950.’” (Sherow, supra, 239

Cal.App.4th. at p. 879.)

       The Sherow court determined that the defendant’s petition, which gave “virtually

no information” regarding his eligibility for resentencing, was properly denied. It further

noted that “[a] proper petition could certainly contain at least [defendant’s] testimony

about the nature of the items taken. If he made the initial showing the court can take such

action as appropriate to grant the petition or permit further factual determination.”

(Sherow, supra, 239 Cal.App.4th at p. 880; accord People v. Rivas-Colon (2015) 241

Cal.App.4th 444, 449 [“Under Sherow [the defendant] had the burden to establish ‘the

facts, upon which his . . . eligibility [was] based[,]’ i.e. that the value of the property he

took from the store did not exceed $950”].)

       Here, defendant’s Petition only stated that he had been convicted of violating

Penal Code section 664/Vehicle Code section 10851. No further facts regarding his

eligibility for resentencing were provided. Defendant did not allege that although

Vehicle Code section 10851 is not listed in Proposition 47, he was otherwise eligible


                                               9
because his offense constituted a theft offense under Penal Code section 490.2. He did

not allege that since he was convicted of an attempt crime, the value of the items taken

was zero. Based on the foregoing, defendant was not entitled to resentencing under Penal

Code section 1170.18 because he did not meet his burden of showing he was eligible for

resentencing under Proposition 47.

       B.     EQUAL PROTECTION

       Defendant raises for the first time on appeal that the omission of Penal Code

section 664/Vehicle Code section 10851 from Proposition 47 violates equal protection.

Defendant argues that assuming the Proposition 47 voters intended to only reduce vehicle

thefts under Penal Code section 487, subdivision (d)(1) to misdemeanors under Penal

Code section 490.2, while leaving Vehicle Code section 10851 violations as felonies,

such discrimination is impermissible under the Equal Protection Clause of the United

States and California Constitutions.

       “‘The United States and California Constitutions entitle all persons to equal

protection of the laws. [Citations.] This guarantee means “that no person or class of

persons shall be denied the same protection of the laws which is enjoyed by other persons

or other classes in like circumstances.” [Citation.] A litigant challenging a statute on

equal protection grounds bears the threshold burden of showing “that the state has

adopted a classification that affects two or more similarly situated groups in an unequal

manner.” [Citation.] Even if the challenger can show that the classification differently

affects similarly situated groups, “[i]n ordinary equal protection cases not involving

suspect classifications or the alleged infringement of a fundamental interest,” the


                                             10
classification is upheld unless it bears no rational relationship to a legitimate state

purpose.’” (People v. Singh (2011) 198 Cal.App.4th 364, 369; see also People v.

Hofsheier (2006) 37 Cal.4th 1185, 1199.)

       I have not concluded in this case that a person who is convicted pursuant to

Vehicle Code section 10851 is ineligible for resentencing under Penal Code section

1170.18, but a person who is convicted of violating Penal Code section 487, subdivision

(d)(1) would be eligible for resentencing. Rather, I have concluded defendant was

required to show that he would have been eligible to be convicted of the misdemeanor

violation of Penal Code section 490.2 had it been in effect at the time he committed his

offense. It is conceivable that a person who has been convicted of a violation of Vehicle

Code section 10851, and files an adequate petition alleging the value of the vehicle taken

was less than $950, and had the intent to permanently deprive the owner of the vehicle,

could show he would have been guilty only of a violation of Penal Code section 490.2 at

the time of the offense, and could be eligible for resentencing based on the language in

the statute.

       However, I simply cannot reach a decision in this case as to whether defendant

was eligible for resentencing because defendant’s Petition filed in the trial court never

raised these issues and was woefully inadequate. Moreover, “As a general rule, only

‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People

v. Smith (2001) 24 Cal.4th 849, 852.) I will not address defendant’s equal protection

claim, raised for the first time on appeal; even if I were to consider the issue, defendant

failed to allege facts in the Petition to support his argument.


                                              11
       C.     RIGHT TO A HEARING

       Defendant further contends that his constitutional rights were violated by the

failure of the trial court to conduct a hearing and secure his presence at the hearing.

Here, the only information before the trial court was that defendant had been convicted of

an attempted unlawful taking or driving of a motor vehicle. It is clear, as set forth ante,

that Vehicle Code section 10851 is not listed in Penal Code section 1170.18. Based on

the face of the Petition, the trial court could determine that defendant was ineligible for

resentencing, and no hearing was required. Defendant had to allege additional facts, i.e.

that the value of the vehicle was under $950, or zero, as he now contends, and that his

crime constituted a theft offense. The trial court here could summarily deny the Petition

because it contained no facts or explanation how defendant was eligible for resentencing.

(See Sherow, supra, 239 Cal.App.4th at p. 877; see also People v. Oehmigen (2014) 232

Cal.App.4th 1, 6-7 [defendant not entitled to development of facts or hearing if trial court

determined he was ineligible on the face of a Penal Code section 1170.126 petition for

resentencing].)

       Here, defendant’s Petition gave the trial court no information as to the value of the

property, or that his violation of Vehicle Code section 10851 was a theft offense. As

alleged, the trial court did not err by concluding that since defendant had a conviction of

violating Penal Code section 664/Vehicle Code section 10851, without more, he was not

entitled to resentencing under Proposition 47.




                                             12
                                      DISPOSITION

       The trial court’s order denying defendant’s Petition to recall his sentence is

affirmed. Nothing in this decision or in Penal Code section 1170.18 forecloses

defendant’s ability to file a new petition alleging sufficient facts to support his claim that

his conviction should be reduced to a misdemeanor.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                          MILLER
                                                                                  Acting P. J.




                                              13
CODRINGTON, J., Concurring.

       I concur with the lead opinion’s disposition, affirming the trial court order denying

defendant’s petition for reclassification of his felony conviction as a misdemeanor, but

respectfully disagree with its rationale and with Justice Slough’s concurring opinion.

       Defendant pled guilty to attempted unlawful driving or taking a vehicle (Veh.

Code, § 10851, subd. (a)1; Pen. Code, § 664). At the plea hearing, counsel stipulated the

plea was based on the facts in the preliminary hearing transcript. After defendant

completed his sentence, defendant filed a petition to reduce his felony conviction to a

misdemeanor (petition). The trial court summarily denied defendant’s petition on the

ground defendant’s section 10851 conviction was not eligible. The lead opinion affirms

the trial court order denying defendant’s petition.

       I also respectfully disagree with the conclusion reached in the lead opinion and in

Justice Slough’s concurring opinion that a defendant convicted of a section 10851

conviction may qualify for resentencing or reclassification if the defendant establishes the

value of the vehicle at issue does not exceed $950 and the defendant intended to

permanently deprive the owner of the vehicle. It is my view that, as a matter of law, a

section 10851 conviction is not eligible for resentencing or reclassification as a

misdemeanor under Proposition 47, regardless of whether the defendant can show that

the theft would have qualified as a petty theft under Penal Code section 490.2.



       1   Unless otherwise noted, all statutory references are to the Vehicle Code.


                                              1
A. Ineligibility of a Section 10851 Conviction Under Proposition 47

       Although the lead opinion suggests a section 10851 conviction is eligible for

resentencing under Proposition 47, the lead opinion affirms denial of defendant’s petition

on the ground he did not meet his burden of proving the value of the stolen car did not

exceed $950 and defendant intended to permanently deprive the owner of the vehicle.

Justice Slough’s concurrence agrees defendant did not meet his burden of proof but

further discusses in depth the issue of eligibility of a section 10851 conviction for

resentencing under Proposition 47. In doing so, Justice Slough’s concurrence disagrees

with the reasoning and holding in People v. Solis (2016) 245 Cal.App.4th 1099 (Solis).

The Solis court holds that a defendant convicted of a section 10851 conviction is

ineligible for resentencing under Proposition 47 as a matter of law, regardless of the facts

of the crime. (Id. at p. 1109.)

       I believe the holding in Solis is correct and is supported by well-reasoned analysis.

The court in Solis concludes, “as a matter of statutory interpretation, that all convictions

under Section 10851—including those committed with the intent to deprive the owner of

permanent possession of a vehicle—are ineligible for reduction in accordance with

section 8 of Proposition 47. (See Voter Information Guide, Gen. Elec.[ (Nov. 4, 2014)]

text of Prop. 47, § 8, p. 72 [adding § 490.2].)” (Solis, supra, 245 Cal.App.4th at p. 1109.)

The concurrence in Solis also provides compelling reasons for concluding “that

convictions for violation of Vehicle Code section 10851 are not eligible for Proposition

47 resentencing pursuant to Penal Code section 1170.18.” (Solis, at p. 1118 (conc. Opn.

of Aldrich, J.).)


                                              2
       I recognize that the issue of eligibility of a section 10851 conviction is under

review by the California Supreme Court in People v. Page (2016) 364 P.3d 410, and that

reasonable minds can differ on this matter (Solis, supra, 245 Cal.App.4th at p. 1109

[“[N]either the grammatical structure of Section 490.2 nor the statutory definition of theft

resolves the question of whether defendants convicted of Section 10851 under a theft

theory are eligible for resentencing.”].)

       I anticipate our high court will grant review of the Solis case, as it has done with

the majority of the Proposition 47 decisions. If this occurs, Solis will no longer constitute

binding authority. Nevertheless, the majority opinion in Solis provides the better

reasoned and more persuasive analysis. Therefore its rationale and holding should be

followed. This is because Penal Code section 1170.18 does not include section 10851 as

one of the enumerated offenses eligible for resentencing. The new petty theft provision,

Penal Code section 490.2, added by Proposition 47, also does not mention that section

10851 is eligible to the limited extent a section 10851 offense might qualify as a petty

theft under Penal Code section 490.2. Furthermore, section 10851 is not strictly a theft

statute. It applies not only to thefts but also to non-theft offenses, such as driving

someone’s car without consent and without intent to permanently deprive the owner of

the car.

       In construing the intent of the electorate in passing Proposition 47, we must look

to the language of Proposition 47 as a whole. (Pineda v. Williams-Sonoma Stores, Inc.

(2011) 51 Cal.4th 524, 529-330.) In doing so, the Solis concurrence notes that, “when the

Legislature—or here, the voters—‘intend[] for a statute to prevail over all contrary law, it


                                              3
typically signals this intent by using phrases like “notwithstanding any other law” or

“notwithstanding other provisions of law.” [Citations.]’ [Citation.] Here, the electorate

included such ‘notwithstanding’ language in regard to Penal Code section 487 and

statutes defining grand theft, but not in regard to Vehicle Code section 10851. This

omission suggests the electorate did not intend Penal Code section 490.2 to apply to

Vehicle Code section 10851.” (Solis, supra, 245 Cal.App.4th at p. 1118 (conc. Opn. of

Aldrich, J.).)

       In addition, applying the legal maxim that “a general provision is controlled by

one that is special” (Solis, supra, 245 Cal.App.4th at p. 1111; San Francisco Taxpayers

Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577), section 10851 should be

construed as not falling within the purview of the more general petty theft statute, Penal

Code section 490.2. “‘A specific provision relating to a particular subject will govern in

respect to that subject, as against a general provision, although the latter, standing alone,

would be broad enough to include the subject to which the more particular provision

relates.’” (Solis, at p. 1111; San Francisco Taxpayers Assn., at p. 577.) Therefore, “to

the extent Section 10851 may be violated in a way that brings it within Penal Code

sections 484 and 490.2, we conclude the specific rule of Section 10851 is an exception to

the general rule announced in Section 490.2, subdivision (a). (See Bradwell[ v. Superior

Court (2007) 156 Cal.App.4th 265,] 272 [“‘Although welfare fraud is like other

fraudulent theft in terms of conduct, it differs in terms of context,’ in part because of the

‘“unique statutory scheme”’ that blends noncriminal and criminal resolutions.].)” (Solis,

at p. 1112.)


                                              4
       Furthermore, as noted in Solis, “The inclusion of ‘auto theft under Section 10851

of the Vehicle Code[]’ alongside ‘grand theft’ and ‘petty theft’ in section 666 is therefore

a significant indication that the voters did not consider Section 10851 a variety of petty

theft. If the initiative drafters considered ‘auto theft under Section 10851’ a species of

petty theft—a term they defined in section eight (adding § 490.2)—there would have

been no need to designate it as a separate predicate in section 10 (amending § 666). (See

Bradwell v. Superior Court (2007) 156 Cal.App.4th 265, 272 . . . [statute’s inclusion of

both ‘“[g]rand theft of any type”’ and ‘“[f]elony welfare fraud”’ indicates welfare fraud

is not a form of grand theft].)” (Solis, supra, 245 Cal.App.4th at p. 1110.)

       I also agree with Solis that “felony prosecutions under Section 10851 serve

important public safety and deterrence functions that differ from those served by

prosecutions for theft. It is thus reasonable for the Legislature to afford prosecutors the

discretion to prosecute joyriders as felons rather than misdemeanants.” (Solis, supra, 245

Cal.App.4th at p. 1114.) Although Proposition 47 amended other statutes to change

specific offenses from wobblers to misdemeanors, a section 10851 offense remains a

wobbler, 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

misdemeanor punishment”].)

       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


                                              5
were amended or added by Proposition 47. (Pen. Code, § 1170.18, subd. (a).) Because

section 10851 remains a wobbler, it cannot be said that defendant would have been guilty

of a misdemeanor had Proposition 47 been in effect at the time of his offense.

Proposition 47 left intact the language in section 10851, subdivision (a), which makes a

violation of that statute punishable as either a felony or a misdemeanor. Proposition 47

therefore does not apply to section 10851 conviction, because a defendant convicted of

section 10851 would not necessarily have been guilty of a misdemeanor if Proposition 47

had been in effect at the time of the offense.

       Although I recognize reasonable minds can differ on the issue of whether a section

10851 conviction is eligible for resentencing/reclassification under Proposition 47,

compelling reasons support the conclusion that a section 10851 conviction is ineligible

under Proposition 47 as a matter of law.

B. Forfeiture

       Defendant contends that equal protection principles require that his section 10851

conviction be treated in the same manner as a conviction for grand theft auto in violation

of Penal Code section 487, subdivision (d)(1). The lead opinion dismisses this challenge

on the ground defendant forfeited the objection by not raising it in the trial court, but also

because defendant did not meet his burden of proof that the crime would have qualified

as a section 490.2 petty theft at the time of defendant’s offense.

       I disagree with the conclusion in the lead opinion that defendant forfeited his equal

protection challenge. Generally, an appellant forfeits claims of error through inaction

that prevents the trial court from avoiding or curing the error. (Steven W. v. Matthew S.


                                                 6
(1995) 33 Cal.App.4th 1108, 1117.) There are, however, exceptions to the general

forfeiture rule whereby certain issues may be raised on appeal despite the appellant’s

failure to raise them in the trial court. Even though defendant may not have raised the

equal protection objection in the trial court, this court has discretion to consider

constitutional issues raised for the first time on appeal, “especially when the enforcement

of a penal statute is involved [citation], the asserted error fundamentally affects the

validity of the judgment [citation], or important issues of public policy are at issue

[citation].” (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) Defendant’s equal protection

challenge is such an issue, which should be addressed on the merits by this court.

C. Equal Protection

       I agree with the lead opinion’s rejection of defendant’s equal protection challenge,

but not for the reasons stated in the lead opinion. Applying rational basis scrutiny, the

California Supreme Court has held that “neither the existence of two identical criminal

statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s

discretion in charging under one such statute and not the other, violates equal protection

principles.” (People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) Similarly, it

has long been the case that “a car thief may not complain because he may have been

subjected to imprisonment for more than 10 years for grand theft of an automobile

[citations] when, under the same facts, he might have been subjected to no more than 5

years under the provisions of section 10851 of the Vehicle Code.” (People v. Romo

(1975) 14 Cal.3d 189, 197.)




                                              7
       The same reasoning applies to Proposition 47’s provision for

resentencing/reclassification of a limited subset of those previously convicted of grand

theft (those who stole an automobile or other personal property valued $950 or less), but

not for those convicted of unlawfully taking or driving a vehicle in violation of section

10851. Absent a showing that a particular defendant “‘has been singled out deliberately

for prosecution on the basis of some invidious criterion,’ . . . the defendant cannot make

out an equal protection violation.” (Wilkinson, supra, 33 Cal.4th at p. 839.) Defendant

here has made no such showing.

D. Conclusion

       Although I agree with the lead opinion outcome, which affirms the trial court

order denying defendant’s petition seeking reclassification of his section 10851 felony

conviction as a misdemeanor, I respectfully disagree that defendant’s conviction may

qualify for reclassification as a misdemeanor if he refiles his petition and provides

sufficient evidence his offense would have qualified as a Penal Code section 490.2 petty

theft at the time of the offense. A section 10851 felony conviction is not one of the

crimes falling within the purview of Proposition 47. Therefore a section 10851

conviction is ineligible for resentencing or reclassification as a matter of law.


                                                                 CODRINGTON
                                                                                             J.




                                              8
       Slough, J., Concurring.

       I concur with the lead disposition to affirm the order denying Smith’s petition

because his petition failed to make out a prima facie case for resentencing. (People v.

Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow); People v. Perkins (2016) 244

Cal.App.4th 129, 135 (Perkins).) I also concur with the lead’s conclusion that a

defendant convicted of violating Vehicle Code section 10851, subdivision (a) (Section

10851) who does establish a prima facie case that he took a vehicle valued at $950 or less

with the intent to permanently deprive the owner of possession may be able to establish

he is eligible for sentencing under Penal Code section 490.2 (Section 490.2). As a result,

I agree with the disposition holding Smith may file a new petition if he can set out

sufficient facts to show his offense was a theft of a vehicle valued at $950 or less.

       Our appellate courts are in disagreement over the issue of whether theft

convictions under Section 10851 can be eligible for Proposition 47 sentencing, 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 (Solis), pet’n for review pending, petn. filed Apr. 25, 2016;

People v. Orozco (2016) 244 Cal.App.4th 65, 73, rehg. granted Feb. 8, 2016; People v.

Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, S232344; see also

People v. Gomez (E062867, rehg. granted Jan. 11, 2016, subsequent opn. not certified for

pub, petn. for review pending, petn. filed Apr. 18, 2016.).) Until we receive such


                                              1
guidance, I believe it is our responsibility to decide each case before us to the best of our

abilities. (See Dillon v. Legg (1968) 68 Cal.2d 728, 736 [recognizing the courts’ “basic

responsibility [is] to decide the merits of each case individually”].)

       I write separately to more fully develop the lead’s answer to the most important

question raised by defendant’s appeal: Can an offender convicted of a felony under

Section 10851 for stealing a vehicle worth $950 or less be resentenced for misdemeanor

petty theft under section 1170.18? The answer is yes. Under a plain reading of

Proposition 47, a Section 10851 conviction constitutes a petty theft under Section 490.2

and therefore qualifies for misdemeanor resentencing provided the conviction was for

theft (as opposed to joyriding) and the stolen vehicle was worth $950 or less.

       I also write separately because I disagree with Justice Miller’s conclusion that

Smith forfeited his equal protection claim. On that point I agree with Justice Codrington.

However, I conclude we need not reach the merits of the equal protection claim because

Proposition 47 affects both theft offenses under section 487, subdivision (d) and theft

offenses under Section 10851.

       A.     Petty Theft Under Section 490.2

       When interpreting the meaning of an initiative like Proposition 47, our goal is to

ascertain the voters’ intent and effectuate the purpose of the initiative. (People v. Canty

(2004) 32 Cal.4th 1266, 1276.) To determine intent, we first examine the statutory

language and give the words their ordinary meaning. (People v. Park (2013) 56 Cal.4th

782, 796.) If the statutory language is unambiguous, its plain meaning controls; if the

language is ambiguous, we may refer to “ ‘other indicia of the voters’ intent, particularly


                                              2
the analyses and arguments contained in the official ballot pamphlet.’ ” (People v. Rizo

(2000) 22 Cal.4th 681, 685.)

       Proposition 47 changed portions of the Penal and Health and Safety Codes to

reduce various nonserious, nonviolent drug possession and theft-related offenses from

felonies or wobblers to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085,

1091.) Penal Code section 1170.18 provides a procedure for individuals who were

previously convicted of felonies now considered misdemeanors under Proposition 47 to

petition to have those convictions reduced to misdemeanors. (Pen. Code, § 1170.18,

subds. (a), (f).)

       As relevant here, Proposition 47 redefined the offense of “petty theft.” Under new

Section 490.2, a person commits petty theft by “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).” (§ 490.2, subd. (a), italics added.) Section 490.2 mandates this

offense “shall be considered petty theft and shall be punished as a misdemeanor,” except

in the case of certain violent or serious recidivists. (Ibid., italics added.)

       Before Proposition 47, petty theft was defined in the negative, by what it was not.

Penal Code section 486 provides that all theft “is divided into two degrees, the first of

which is termed grand theft; the second, petty theft.” Grand theft was generally defined

as theft of property worth more than $950 (dollar-amount grand theft). (Pen. Code,

§ 487, subd. (a).) However, the Penal Code made exceptions to this dollar-amount

threshold for certain types of property (property-type grand theft). For example, theft of

$250 worth of avocados was grand theft (Pen. Code, § 487, subd. (b)(1)(A)), as was theft


                                               3
of any automobile or firearm (Pen. Code, § 487, subd. (d)(1) [grand theft auto], (d)(2)

[firearm]). (See generally Pen. Code, §§ 487-487j [provisions defining grand theft].)

Penal Code section 488 defines petty theft as “theft in other cases.”

       Section 490.2 expanded the offense of petty theft by defining it as any theft

involving property worth $950 or less. (§ 490.2, subd. (a) [“obtaining any property by

theft . . .”].) One effect of this expansion was to eliminate the preexisting property-type

grand theft offenses. Under the new definition of petty theft, the dollar-amount threshold

($950) is the deciding factor for whether a theft is grand or petty. (§ 490.2, subd. (a)

[$950 threshold applies “[n]otwithstanding” Penal Code section 487 or any other

provision of law defining grand theft].) In other words, the nature of the property no

longer matters for determining the degree of the theft, only the value of the property

matters. However, the new definition of petty theft in Section 490.2 impacts more than

just grand theft. Under Section 490.2, all thefts of any property worth $950 or less must

be considered petty thefts and must be punished as misdemeanors.

       B.     Section 490.2’s Application to Section 10851

       Because Section 490.2 redefines and expands petty theft to encompass the act of

obtaining any low-value property ($950 or less) “by theft,” the question of whether

Section 10851 convictions are affected by Proposition 47 comes down to whether such

convictions are “theft” convictions. According to the California Supreme Court, they are

when the conviction is based on the unlawful taking of a vehicle, as opposed to the

unlawful driving of a vehicle (commonly referred to as joyriding): “[A] defendant

convicted under section 10851(a) of unlawfully taking a vehicle with the intent to


                                              4
permanently deprive the owner of possession has suffered a theft conviction.” (People v.

Garza (2005) 35 Cal.4th 866, 871, italics added.)

       Recognizing that some violations of Section 10851 are thefts, the analysis is

straightforward. If all thefts are either grand or petty (Pen. Code, § 486) and, post-

Proposition 47, a vehicle theft is petty if it involves property worth $950 or less (§ 490.2),

then a theft violation of Section 10851 involving a vehicle worth $950 or less is now, by

definition, petty. After Proposition 47, when the People charge a felony theft violation of

Section 10851, Section 490.2 requires the prosecution to prove the vehicle was worth

more than $950 in order to obtain a felony conviction. Because a low-value vehicle theft

is now a misdemeanor (§ 490.2), Penal Code section 1170.18, which gives a petitioning

defendant the benefit of placing his felony conviction in the post-Proposition 47 world,1

allows defendants convicted of vehicle theft under Section 10851 to petition for

resentencing.

       The language of Section 490.2 as both broad and clear. It broadly covers all thefts

and clearly mandates that thefts be considered petty if the property stolen is worth $950

or less. Accordingly, if a petitioner can demonstrate his violation of Section 10851 was

based on the theft of a vehicle worth $950 or less, he is eligible for resentencing under

Penal Code section 1170.18 in accordance with the misdemeanor punishment provided in

Section 490.2.

       1  Penal Code section 1170.18, subdivision (a), allows a defendant currently
serving a sentence for a felony conviction to petition to have that felony reduced to a
misdemeanor if he “would have been guilty of a misdemeanor under [Proposition 47] . . .
had [it] been in effect at the time of the offense.” (Italics added.)



                                              5
       To conclude otherwise would create absurd results by eliminating Proposition 47’s

intended effect on low-value vehicle thefts. By explicitly referencing Penal Code section

487 in Section 490.2,2 the initiative’s drafters demonstrated they intended to reduce

vehicle theft to a misdemeanor if the vehicle is worth $950 or less. (See Pen. Code,

§ 487, subd. (d)(1) [offense commonly known as grand theft auto was a wobbler].) The

information on Proposition 47 in the official voter information guide underscores the

intent to reduce punishment for low-value vehicle theft. The Legislative Analyst

explained that theft of “certain property (such as cars)” could no longer be charged as

grand theft after the passage of Proposition 47, if the property was worth $950 or less.

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) p. 35, at

<http://www.vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of April 27,

2016].) The intent to eliminate prosecutorial discretion regarding low-value vehicle

thefts will be nullified if the prosecution can ignore the mandate in Section 490.2 and

charge such thefts as felonies under Section 10851.

       C.      Opposing Arguments

       The remainder of my concurrence addresses the arguments of the opposing view,

that Section 10851 convictions are categorically ineligible for resentencing under

Proposition 47. There are five main arguments supporting this view.




       2   Section 490.2 begins: “Notwithstanding [Penal Code s]ection 487. . . .”



                                             6
              1.     Section 490.2’s opening clause

       The first argument is that vehicle thefts under Section 10851 are not affected by

the new definition of petty theft because Section 10851 is not explicitly mentioned in

Section 490.2’s opening clause. This clause provides that the new definition of petty

theft applies “[n]otwithstanding” any provision defining grand theft. (§ 490.2, subd. (a).)

       This clause as a limiting provision. (Accord, Solis, supra, 245 Cal.App.4th at p.

1108 [the opening clause of § 490.2 is a “nonrestrictive phrase [that] does not limit the

rest of the sentence, the plain language of section 490.2 stands on its own”].) In my

view, the purpose of the opening clause is to clarify that the new definition of petty theft

abolishes the former property-type grand theft and replaces it with dollar-amount grand

theft. Section 490.2 eliminates any previous categorization of thefts, such that all theft

offenses—regardless of whether the statute setting out the offense identified it as grand,

petty, or neither—must be considered petty if the offense involves property worth $950

or less. This interpretation is supported by the plain language of Section 490.2,

subdivision (a), which clearly states that it applies to the act of “obtaining any property

by theft.” As Judge J. Richard Couzens and Presiding Justice Tricia A. Bigelow observe

in their treatise on Proposition 47, “[n]o effort was made to include [in Section 490.2]

every conceivable offense which may be classified as theft.” (Couzens & Bigelow,

Proposition 47: “The Safe Neighborhoods and Schools Act” (May 2016) p. 119, at

<http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of June 2, 2016].)

       Furthermore, if the opening clause functioned as a limiting provision, Section

490.2 would redefine only grand theft (as opposed to redefining petty theft) and


                                              7
subdivision (b) of Section 490.2 would not make sense. Section 490.2, subdivision (b),

states: “This section shall not be applicable to any theft that may be charged as an

infraction pursuant to any other provision of law.” This subdivision indicates Section

490.2 is intended to apply to more than just grand theft. Otherwise, there would be no

reason to clarify that Section 490.2 does not apply to thefts that can be charged as

infractions, as grand thefts never can be charged as infractions. (Pen. Code, § 489.)

              2.     Offenses listed in Penal Code section 1170.18

       The second argument is that Section 10851 is not affected by Proposition 47

because the offense is not listed in Penal Code section 1170.18, the resentencing

provision. Penal Code section 1170.18, subdivision (a), allows defendants to petition for

misdemeanor resentencing under Proposition 47 “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.” The sections listed in this subdivision are all those that

contain Proposition 47’s new sentencing provisions. Not included in this list are the

myriad offenses affected by these new sentencing provisions, such as grand theft (Pen.

Code, § 487), second degree robbery (Pen. Code, § 459), forgery (Pen. Code, § 476), as

well as vehicle theft (§ 10851). The list is not intended to contain every offense affected

by Proposition 47, it contains only the provisions that set forth punishment. Thus, the

fact that Section 10851 (or Pen. Code, §§ 459 or 476 for that matter) is not listed in Penal

Code section 1170.18 does not indicate Proposition 47 did not reclassify the offense as

misdemeanor (when the value of the vehicle is $950 or less).




                                             8
              3.     No direct amendment to Section 10851

       The third argument is that Proposition 47 did not directly amend Section 10851.

This argument posits that because Proposition 47 left the wobbler punishment language

in Section 10851 intact, the voters intended to allow the prosecution to retain its

discretion to charge those offenses as felonies. (§ 10851, subd. (a) [violations of this

subdivision are punishable as either a misdemeanor or felony].)

       While it is generally true our penal provisions afford the prosecution discretion to

charge a defendant under the offense carrying the highest punishment, Proposition 47

was enacted for the specific purpose of removing prosecutorial discretion with regard to

punishing certain nonserious offenses. (Voter Information Guide, Gen. Elec., supra, text

of Prop. 47, §§ 2-3, p. 70 [overall purpose of the initiative was to “ensure that prison

spending is focused on violent and serious offenses” by “[r]equir[ing] misdemeanors

instead of felonies for nonserious, nonviolent crimes like petty theft and drug

possession”], italics added.) To achieve this purpose, Section 490.2 removed

prosecutorial charging discretion for low-value property thefts. (See § 490.2, subd. (a)

[all thefts of property worth $950 or less “shall be considered petty theft”].)

       This prosecutorial discretion argument underscores the importance of my point

about creating absurd results. As noted above, it is clear the voters intended to remove

prosecutorial discretion to charge low-value vehicle thefts as felonies under Penal Code

section 487. (See § 490.2, subd. (a) [explicitly referencing Pen. Code, § 487].) The

voters would not go through the trouble of enacting Section 490.2 for that purpose if the

prosecution could simply charge the same offenses (low-value vehicle thefts) as felonies


                                              9
under a different penal provision. (§ 10851.) In order to effectuate the clear intent of

Section 490.2 as well as Proposition 47’s goal of reducing prison spending for low-value

vehicle thefts, we must apply it to both Penal Code section 487 and Section 10851.

              4.      Maxim against surplusage

       The recent case of Solis, supra, 245 Cal.App.4th 1099 raised two more arguments

in support of Section 10851’s ineligibility. The majority in Solis interpreted the plain

language of Section 490.2 (correctly) as broad enough to encompass thefts under Section

10851. (Solis, supra, at pp. 1108, 1110-1111 [conceding that, grammatically and

conceptually, § 490.2 could apply to thefts under § 10851].) However, the majority

ultimately concluded such violations are categorically ineligible for resentencing based

on the maxim of statutory construction advising against “a construction that renders a

word surplusage.” (Solis, supra, at pp. 1110-1111, citing Delaney v. Superior Court

(1990) 50 Cal.3d 785, 798.) Applying this maxim, the majority reasoned that the

inclusion of Section 10851 alongside “grand theft” and “petty theft” in Penal Code

section 666 (the provision increasing the punishment for petty theft with a prior for

certain offenders) is “a significant indication that the voters did not consider Section

10851 a variety of petty theft.” (Solis, supra, at p. 1110.) The majority explained that if

the initiative drafters considered violations of Section 10851 a “species of petty theft—a

term they defined in section eight (adding § 490.2)—there would have been no need to

designate it as a separate predicate in section 10 (amending Pen. Code, § 666).” (Solis,

supra, at p. 1110.)




                                             10
       Like the author of the concurring opinion in Solis, I disagree with this argument.

(Solis, supra, 245 Cal.App.4th at p. 1114 (conc. opn. of Aldrich, J.).) The reference to

“auto theft under Section 10851” in Penal Code section 666 is not rendered surplus to

“petty theft” simply because some auto thefts under Section 10851, subdivision (a)

constitute petty thefts under Proposition 47. The offense remains listed in Penal Code

section 666 to cover the thefts under Section 10851 that do not constitute petty thefts

under Section 490.2, such as thefts of vehicles worth more than $950 in violation of

Section 10851, subdivision (a), and thefts of the specialized vehicles described in Section

10851, subdivision (b).3

       Furthermore, the maxim against surplusage is simply a discretionary guideline to

aid in ascertaining the meaning of the statute. Interpretive maxims should not be rigidly

employed if doing so would contravene the plain meaning of an unambiguous statute like

Section 490.2. (See, e.g., Mejia v. Reed (2003) 31 Cal.4th 657, 663 [“When the plain

meaning of the statutory text is insufficient to resolve the question of its interpretation,

the courts may turn to rules or maxims of construction ‘which serve as aids in the sense

that they express familiar insights about conventional language usage’ ”], italics added.)




       3  Under Section 10851, subdivision (b), it is a felony to steal ambulances,
distinctively marked law enforcement or fire department vehicles on emergency calls,
and vehicles that have been modified for the use of a disabled veteran or any other
disabled person and display a distinguishing placard or plate.



                                              11
              5.     Maxim of general versus specific

       The majority in Solis also relies on the general/specific interpretive maxim to

explain why the broad language of Section 490.2 does not apply to Section 10851. The

majority concludes the latter section is a more specific offense than the former and “in

the event a broader law conflicts with a specific one, the specific controls.” (Solis, supra,

245 Cal.App.4th at p. 1111.)

       The application of this maxim is not appropriate in this context because vehicle

thefts under Section 10851, subdivision (a) are not more specific offenses than the

vehicle theft offenses Section 490.2 covers. Section 490.2 applies to the specific offense

of vehicle theft. (§ 490.2, subd. (a) [“[n]otwithstanding [Penal Code s]ection 487”].)

Section 10851, subdivision (a), “proscribes a wide range of conduct” (People v.

Jaramillo (1976) 16 Cal.3d 752, 759), including vehicle theft (People v. Garza, supra, 35

Cal.4th at p. 871). To the extent a violation of Section 10851, subdivision (a) is based on

a vehicle theft (as opposed to joyriding), Section 490.2 applies to that specific conduct by

mandating misdemeanor punishment if the stolen vehicle is worth $950 or less. Because

Section 490.2 and Section 10851, subdivision (a) cover the same conduct, the

specific/general interpretive canon is unhelpful in the context of those two provisions.

(See Mejia v. Reed, supra, 31 Cal.4th at p. 666 [concluding the specific/general canon

“offer[ed] no assistance” where each statute was “at least as specific” as the other].)

       The concurring opinion in Solis points to subdivisions (b) and (e) of Section 10851

to demonstrate that it is a more specific provision than Section 490.2. The concurring

opinion concludes that because these subdivisions conflict with Section 490.2, the new


                                             12
definition of petty theft is not intended to apply to Section 10851. (Solis, supra, 245

Cal.App.4th at pp. 1116-1118 (conc. opn. of Aldrich, J.).) Though Section 10851,

subdivisions (b) and (e) are more specific provisions, that is not a reason for concluding

Section 490.2 does not apply to Section 10851, subdivision (a). Under the interpretation

advanced here, Section 490.2 works in harmony with the other subdivisions of Section

10851. The new definition of petty theft simply carves out a distinct offense from

subdivision (a) of Section 10851, and leaves the remainder of the provision intact.

       As noted above, subdivision (b) of Section 10851 prescribes felony punishment

for the offense of taking or unlawfully driving specialized vehicles under certain

circumstances. The Solis concurring opinion finds potential for conflict where a

defendant steals a specialized vehicle described in Section 10851, subdivision (b), worth

$950 or less because that defendant would be “sentenced only as a misdemeanant, rather

than to the two-, three-, or four-year term specified by subdivision (b).” (Solis, supra,

245 Cal.App.4th at p. 1118 (conc. opn. of Aldrich, J.).) It is a mistake to conclude the

defendant in that circumstance would be punished as a misdemeanant. Proposition 47’s

new definition of petty theft does not apply to violations of Section 10851, subdivision

(b) because those offenses are more specific (by virtue of the special nature of the

vehicles) and more serious (by virtue of the felony punishment). If the drafters intended

Proposition 47 to apply to those offenses, they would have made that intention clear. In

the hypothetical the Solis concurrence poses, the defendant would still receive felony

punishment. Moreover, even if Section 490.2 did apply to other subdivisions of Section




                                             13
10851 (there is no reason to think it does), it is difficult to imagine any of the specialized

vehicles described in Section 10851, subdivision (b) having a value of $950 or less.

       Section 10851, subdivision (e), provides that recidivists are punishable as set forth

in Penal Code section 666.5. Under these two provisions, a defendant who is convicted

of a felony violation of Section 10851 and who has previously been convicted of the

same offense, must be punished under Penal Code section 1170, subdivision (h) for two,

three, or four years. (§ 10851; Pen. Code, § 666.5.) The Solis concurring opinion finds

potential for conflict where “[a] recidivist who stole a vehicle worth less than $950 could

not be punished for his or her recidivism,” because “under [Penal Code] section 666.5

both the current and prior crimes must be felonies.” (Solis, supra, 245 Cal.App.4th at

p. 1118 (conc. opn. of Aldrich, J.).) This scenario creates no conflict. Section 10851,

subdivision (a) is a wobbler offense, which means that even before Proposition 47, a

recidivist could be convicted of a misdemeanor violation of that subdivision and therefore

not qualify for sentencing under Penal Code section 666.5. All Section 490.2 does is

mandate misdemeanor punishment for low-value vehicle thefts where previously the

prosecution had discretion whether to charge that offense as a misdemeanor.

       Section 490.2 does not conflict with any subdivisions of Section 10851.

       D.     Voters’ Intent

       Finally, even assuming the language of Section 490.2 is ambiguous as to its

application to Section 10851, the voters’ intent supports the lead’s eligibility conclusion.

(See People v. Rizo, supra, 22 Cal.4th at p. 685 [when the language of an initiative is

ambiguous, courts may look to “ ‘other indicia of the voters’ intent’ ” to determine the


                                              14
initiative’s meaning].) Proposition 47’s overall purpose is to “ensure that prison

spending is focused on violent and serious offenses, to maximize alternatives for

nonserious, nonviolent crime, and to invest the savings generated from this act into

prevention and support programs in K-12 schools, victim services, and mental health and

drug treatment.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 2, at p.

70.) To achieve that end, the measure “[r]equire[s] misdemeanors instead of felonies for

nonserious, nonviolent crimes like petty theft.” (Id., § 3, at p. 70.) Furthermore, the

measure is to be “broadly construed to accomplish its purposes.” (Id., §§ 15, 18, at p.

74.) A broad construction of Section 490.2 would apply the new definition of petty theft

to all vehicle thefts where the vehicle is worth $950 or less, not just vehicle thefts under

Penal Code section 487, subdivision (d)(1).

       For all these reasons, theft convictions under Section 10851, subdivision (a)

qualify for misdemeanor resentencing if the petitioner can demonstrate the stolen vehicle

was worth $950 or less.

       E.     Disposition

       I agree with the lead that Smith may file a new petition, provided he can support

the petition with evidence of his eligibility—information or evidence tending to show he

attempted to steal the vehicle and it was worth $950 or less. (Perkins, supra, 244

Cal.App.4th at pp. 136-137.) Such evidence may include a copy of the probation report

or a police report, the vehicle’s Kelly Blue Book value, a declaration under penalty of

perjury regarding his intent and the vehicle’s value, or other evidence tending to show his

attempted to commit a low-value vehicle theft. (People v. Smith (May 24, 2016, No.


                                              15
E062858) ___ Cal.App.4th ___ [2016 D.A.R 4936 at p. 4940] [directing court to “permit

Smith to supplement the record by submitting evidence related to the value of any stolen

property or counterfeit bills connected with his conviction,” such as “his own testimony,

‘court documents, record citations, or other probative evidence showing he is eligible for

relief.’”], quoting Perkins, supra, at p. 140; see also Sherow, supra, 239 Cal.App.4th at p.

881.) Whether the evidence Smith submits to support his petition is admissible is a

determination for the trial court to make in the first instance. 4

       E.     Equal Protection

       Finally, I do not join Part B of Justice Miller’s opinion. I disagree Smith forfeited

his argument that excluding Section 10851 theft convictions from resentencing under

Proposition 47 violates his right to equal protection of the laws. On this issue, I agree

with the analysis in Part C of Justice Codrington’s concurrence. The conclusion that

Smith was required to assert his equal protection challenge in the superior court does not

make sense under the facts of this case. Smith filed a court-mandated form seeking

resentencing and the superior court ruled on his petition summarily without holding a


4 Because Section 1170.18, subdivisions (a) and (b) are silent on the evidence a
petitioner may use to establish eligibility, the normal rules of evidence apply. “Except as
otherwise provided by statute, all relevant evidence is admissible” (Evid. Code, § 351),
and relevant evidence means any evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) To be sure, other provisions of the Evidence Code limit the
admissibility of relevant evidence, for instance, if its probative value is substantially
outweighed by the likelihood of prejudice or confusion (Evid. Code, § 352) or if it takes
the form of hearsay (Evid. Code, § 1200). But these bases for excluding relevant
evidence are complex, subject to exceptions, differ in the sentencing context, and are
amenable to waiver.


                                              16
hearing. Smith therefore had no opportunity to raise his equal protection challenge in the

superior court.

        In any event, I do not believe it is necessary to address the merits of Smith’s equal

protection claim because we conclude Section 10851 theft convictions may qualify for

resentencing under section 1170.18 and because Smith has not met his prima facie burden

of showing he is similarly situated to an offender resentenced to a misdemeanor who had

been convicted under section 487, subdivision (d)(1) for stealing a vehicle worth $950 or

less.



                                                                 SLOUGH
                                                                                            J.




                                              17
