Filed 5/6/16 P. v. Randolph 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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,                                       E063679

v.                                                                       (Super.Ct.No. FVI07343)

RAYMOND LEROY RANDOLPH,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Miriam Morton,

Judge. Affirmed.

         Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Charles C. Ragland, Scott C. Taylor and Kristen Hernandez, Deputy Attorneys

General, for Plaintiff and Respondent.




                                                             1
                                     INTRODUCTION

       Defendant Raymond Leroy Randolph appeals from the denial of his petition under

Proposition 47 and Penal Code section 1170.18 to reduce his conviction of unlawful

driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) to misdemeanor petty theft

(Pen. Code, § 490.2). Defendant contends that (1) Vehicle Code section 10851 offenses

fall within the ambit of Proposition 47; (2) equal protection principles require treating a

Vehicle Code section 10851 conviction the same as grand theft auto under Penal Code

section 487, subdivision (d)(1); (3) ascertainment of the value of property is limited to the

record of conviction; (4) the prosecution bears the burden of proving that the value of

personal property taken exceeded $950; and (5) the valuation of the loss for a temporary

taking of an automobile should be measured by the amount of compensation to make the

victim whole rather than the market value of the vehicle.1 We affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       On January 2, 1998, defendant was charged with unlawful driving or taking of a

vehicle, a 1968 Honda Trail 50. (Veh. Code, § 10851, subd. (a).) Defendant entered a

plea of guilty to the charge. Defendant was sentenced to felony probation on the

condition he serve 120 days in county jail.




       1 This court has reviewed defendant’s request for judicial notice filed February 8,
2016, and the People’s opposition filed February 22, 2016. The People’s opposition
correctly notes that there is no indication the police report was ever presented to the trial
court and, therefore, the request for judicial notice is denied.


                                              2
       On April 22, 2015, defendant filed a petition for resentencing under Penal Code

section 1170.18. The trial court denied the petition on the ground that a violation of

Vehicle Code section 10851 does not qualify for such relief.

                                       DISCUSSION

       Applicability of Proposition 47 to Vehicle Code Section 10851 Offenses

       Penal Code section 1170.l8, subdivision (a), lists the offenses for which relief may

be appropriate. Vehicle Code section 10851 is not one of the listed offenses. Defendant

nonetheless contends that because Vehicle Code section 10851 is a theft offense, and

Penal Code section 1170.18 explicitly applies to theft offenses through Penal Code

section 490.2 when the value of the property taken is less than $950, Penal Code section

1170.18 must also apply to violations of Vehicle Code section 10851. That issue is

presently before the California Supreme Court. (See People v. Page (2015) 241

Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)

       The gravamen of defendant’s argument is that Vehicle Code section 10851 was

indirectly amended by virtue of Penal Code section 490.2’s reference to Penal Code

section 487, and the circumstance that Vehicle Code section 10851 is a lesser included

offense of Penal Code section 487, subdivision (d)(1). On its face, however, Penal Code

section 490.2 does no more than amend the definition of grand theft, as articulated in

Penal Code section 487 or any other provision of law, redefining a limited subset of

offenses that would formerly have been grand theft to be petty theft. (Pen. Code,

§ 490.2.) Vehicle Code section 10851 does not proscribe theft of either the grand or petty

variety, but rather the taking or driving of a vehicle “with or without intent to steal.”


                                              3
(Veh. Code, § 10851, subd. (a); see also People v. Garza (2005) 35 Cal.4th 866, 876

[Veh. Code, § 10851, subd. (a) “‘proscribes a wide range of conduct,’” and may be

violated “‘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, we

conclude Penal Code section 490.2 is simply inapplicable to defendant’s conviction

offense.

       Equal Protection

       Defendant next contends that equal protection principles require that his

conviction for unlawfully taking a vehicle in violation of Vehicle Code section 10851 be

treated in the same manner as a conviction for grand theft auto in violation of Penal Code

section 487, subdivision (d)(1). Not so. 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.) 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.) The

same reasoning applies to Proposition 47’s provision for the possibility of sentence

reduction for 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 those


                                               4
convicted of unlawfully taking or driving a vehicle in violation of Vehicle Code 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, at p. 839.) Defendant here has made no

such showing.

       To be sure, “Vehicle Code section 10851 is not classified as a ‘serious felony,’ and

it is not as serious as crimes in which violence is inflicted or threatened against a person.”

(People v. Gaston (1999) 74 Cal.App.4th 310, 321.) It is not unreasonable to argue, as

defendant has, that the same policy reasons motivating Proposition 47’s reduction in

punishment for certain felony or wobbler offenses would also apply equally well to

Vehicle Code section 10851. Nevertheless, if Proposition 47 were intended to apply not

only to reduce the punishment for certain specified offenses, but also any lesser included

offenses, we would expect some indication of that intent in the statutory language. We

find nothing of the sort. It is simply not our role to interpose additional changes to the

Penal Code or Vehicle Code beyond those expressed in the plain language of the

additions or amendments resulting from the adoption of Proposition 47.

       Defendant’s other contentions of error are moot.




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                                   DISPOSITION

      The order appealed from is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                 McKINSTER
                                                             J.
I concur:



RAMIREZ
                      P. J.




                                             6
       MILLER, J., Dissenting and Concurring.

       I respectfully dissent to that part of the majority opinion finding that Proposition

47 does not apply to all convictions under Vehicle Code section 10851. However, I

concur in the result that defendant’s petition to recall his sentence (Petition) was properly

denied by the trial court. This decision is based on the ground that defendant failed to

meet his burden of showing he was entitled to relief.

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

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.”

       Under Penal Code section 1170.18, subdivision (b), the trial court first determines

whether the petition has presented a prima facie case for relief under 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. (§ 1170.18, subd. (b).)




                                               1
       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 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.”

       Vehicle Code section 10851 is not listed in Penal Code section 1170.18.

However, in People v. Garza (2005) 35 Cal.4th 866 (Garza), the California Supreme

Court “observed that [Vehicle Code] section 10851(a) ‘prescribes a wide range of

conduct.’” (Id. at p. 876.) In determining whether the defendant could be convicted of

both a violation of Vehicle Code section 10851 and Penal Code section 496, subdivision

(a), receiving the same stolen vehicle, the court noted, “[T]he crucial issue usually will be

whether the [Vehicle Code] section 10851(a) conviction is for a theft or a nontheft

offense. If the conviction is for the taking of the vehicle, with the intent to permanently

deprive the owner of possession, then it is a theft conviction that bars a conviction of the

same person under [Penal Code] section 496(a) for receiving the same vehicle as stolen

property. Dual convictions are permissible, however, if the section 10851(a) conviction

is for posttheft driving of the vehicle.” (Garza, at p. 881.)




                                              2
       Based on this language, some violations of Vehicle Code section 10851 constitute

theft offenses. Assuming that a defendant takes a vehicle with the intent to permanently

deprive the owner of the vehicle and it is valued under $950, such violation should

constitute a violation of Penal Code section 490.2, petty theft. I disagree with the

majority’s conclusion that all violations of Vehicle Code section 10851 do not qualify

under Proposition 47.

       This conclusion is supported by the analysis of the Legislative Analyst for

Proposition 47. “Under current law, theft of property worth $950 or less is often charged

as petty theft, which is a misdemeanor or an infraction. However, such crimes can

sometimes be charged as grand theft, which is generally a wobbler. For example, a

wobbler charge can occur if the crime involves the theft of certain property (such as cars)

or if the offender has previously committed certain theft-related crimes. This measure

would limit when theft of property of $950 or less can be charged as grand theft.

Specifically, such crimes would no longer be charged as grand theft solely because of the

type of property involved or because the defendant had previously committed certain

theft-related crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), p. 35, italics

added.) Proposition 47 was intended to apply to those who steal cars that are valued

under $950.




                                             3
       In the recent case of People v. Solis (2016) 245 Cal.App.4th 10991 (Solis), the

appellate court addressed the same issue raised in this case. The appellate court

acknowledged the different ways a person can violate Vehicle Code section 10851. It

noted, “Because driving or taking a vehicle with the intent to deprive the owner of

temporary possession is not theft, defendants convicted of this form of [Vehicle Code

s]ection 10851 are ineligible for resentencing under Proposition 47. However, neither the

grammatical structure of [Penal Code s]ection 490.2 nor the statutory definition of theft

resolves the question of whether defendants convicted of [Vehicle Code s]ection 10851

under a theft theory are eligible for resentencing.” (Id. at p. 1109.) However, it rejected

that Vehicle Code section 10851 was intended to be included as a petty theft under

Proposition 47 based on the rules of statutory interpretation that any construction of a

statutory scheme should avoid rendering a word in the scheme surplusage. It found,

“Proposition 47 amended Penal Code section 666, petty theft with prior, and reduced the

maximum prison sentence from three years to one year. Eligible predicates include prior

convictions for ‘petty theft, grand theft, . . . auto theft under Section 10851 of the Vehicle

Code, burglary, carjacking, robbery,’ and receiving stolen property. (Pen. Code, § 666,

subd. (a).) To interpret Proposition 47 as a symmetrical, coherent scheme, in which

operative words are used consistently throughout, we must accord ‘petty theft’ and ‘grand

theft’ the same meaning in both section eight (adding [Pen. Code,] § 490.2) and section

10 (amending [Pen. Code,] § 666). [Citation.] The inclusion of ‘auto theft under Section


       1   Petition for review pending, petition filed April 27, 2016, S234150.


                                              4
10851 of the Vehicle Code[]’ alongside ‘grand theft’ and ‘petty theft’ in [Penal Code]

section 666 is therefore a significant indication that the voters did not consider [Vehicle

Code s]ection 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 [Pen. Code,] § 490.2)—there would have been no need to designate it as a

separate predicate in section 10 (amending [Pen. Code,] § 666).” (Solis, supra, 245

Cal.App.4th at p. 1110.)

       I do not agree that finding a violation of Vehicle Code section 10851 could be

reduced to petty theft under Proposition 47 would render the reference to Vehicle Code

section 10851 in Penal Code section 666 surplusage. It is reasonable to conclude—based

on the language in Garza which establishes Vehicle Code section 10851 proscribes a

wide range of conduct—the electorate included Vehicle Code section 10851 in Penal

Code section 666 for those instances where it does not constitute grand or petit theft.

       Moreover, I also reject the conclusion in Solis that “[i]f the electorate intended to

reclassify some violations of [Vehicle Code s]ection 10851, it would not do so, without

comment, via a general Penal Code provision defining petty theft. Therefore, to the

extent [Vehicle Code s]ection 10851 may be violated in a way that brings it within Penal

Code sections 484 and 490.2, we conclude the specific rule of [Vehicle Code s]ection

10851 is an exception to the general rule announced in [Penal Code s]ection 490.2,

subdivision (a).” (Solis, supra, 245 Cal.App.4th at p. 1112.) This ignores that the

electorate directed Proposition 47 “shall be liberally construed to effectuate its purposes.”

(Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222.) The language in


                                              5
Penal Code section 490.2 broadly states that it applies to all provisions defining grand

theft.



         Despite finding that Proposition 47 applies to certain violations of Vehicle Code

section 10851, I would find that defendant failed to meet his burden of establishing that

his violation of Vehicle Code section 10851 constituted a theft offense. “[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.) Defendant adduced

absolutely no evidence that his violation of Vehicle Code section 10851 involved the

intent to permanently deprive the owner of possession of the vehicle or the value of the

vehicle. As discussed ante, this evidence was crucial to establishing that defendant was

eligible for resentencing. As such, since defendant failed to meet his burden, the trial

court could deny the Petition on this ground.




                                                         MILLER
                                                                                             J.




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