Filed 11/6/15 P. v. Carver CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C078239

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62131666)

          v.

ROBERT KENNETH CARVER,

                   Defendant and Appellant.




          This appeal raises one issue: whether defendant Robert Kenneth Carver was
entitled to have his felony conviction for unlawfully taking or driving a vehicle (Veh.
Code, § 10851, subd. (a)) reduced to a misdemeanor pursuant to Proposition 47. We
conclude the answer is “no” because defendant failed to present evidence from the record
of conviction that the value of the personal property taken did not exceed $950. We
affirm.




                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       In July 2014, defendant went inside an unlocked 1995 Chevrolet pickup truck that
belonged to someone else, realized he could start the truck and did, and then drove off in
it. The next day, he ingested half of a hydrocodone pill that he found in the truck and
drank some alcohol, and then he drove around Placer County in the truck. While driving
the truck through an intersection, defendant collided head-on with another vehicle.
Defendant fled on foot and was captured by police while hiding at a senior center,
smelling of alcohol, and acting inebriated. Just before the crash, police had received calls
about the truck swerving all over the roadway.
       In July 2014, defendant pled no contest to felony unlawfully driving or taking a
vehicle, misdemeanor driving under the combined influence of alcohol and drugs,
misdemeanor hit-and-run driving, and misdemeanor resisting, obstructing, or delaying a
police officer. The court later allowed defendant to withdraw his plea to the last two
offenses (hit-and-run driving and resisting a police officer) and dismissed those counts
with a Harvey waiver.1
       In September 2014, the court sentenced defendant to a split term of 18 months in
prison and 18 months of supervised release for the unlawful taking or driving count and a
concurrent term for the driving under the influence count.
       In December 2014, defendant filed a petition for resentencing under Proposition
47, claiming his offense of unlawfully driving or taking a vehicle was reclassified as a
misdemeanor under the proposition. The court held a hearing on the petition. Defense
counsel argued that the “Blue Book value [of the truck defendant took] . . . as of
November 2014, was $754, depending on the condition of it, to a certain range of maybe



1     A Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) “is a ‘contrary
agreement’ permitting the sentencing judge to consider the facts relating to dismissed
charges.” (People v. Barasa (2002) 103 Cal.App.4th 287, 291, fn. 3.)

                                             2
up to $932.” The court denied the petition because Vehicle Code section 10851 was not
an offense enumerated in Proposition 47 that qualified for resentencing.
                                       DISCUSSION
       The passage of Proposition 47 created Penal Code section 1170.18, which
provides for any defendant “currently serving a sentence for a conviction . . . of a felony
or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it]
been in effect at the time of the offense [to] petition for a recall of sentence before the
trial court that entered the judgment of conviction in his or her case to request
resentencing . . .” under the statutory framework as amended by the passage of
Proposition 47. (Pen. Code, § 1170.18, subd. (a); see Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
       Included in the crimes reduced to misdemeanors by Proposition 47, rendering the
person convicted of the crime eligible for resentencing, is petty theft, defined as theft of
property where value of the money, labor, real or personal property taken does not exceed
$950 (Pen. Code, § 490.2). (Pen. Code, § 1170.18, subd. (a).) Unlawful taking or
driving of a vehicle (Veh. Code, § 10851, subd. (a)), the crime to which defendant pled
no contest, does not appear on the list of felonies reduced to misdemeanors by
Proposition 47. (Pen. Code, § 1170.18, subd. (a).)2 Nevertheless, defendant argues that
he is entitled to resentencing for two reasons: (1) unlawful taking or driving of a vehicle




2       The full list of enumerated offenses reads as follows: “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.” (Pen. Code, § 1170.18, subd. (a).)

                                               3
is a necessarily included offense of grand theft of an automobile; and (2) in any event,
denying him resentencing would violate his right to equal protection under the law.
       To defendant’s first point, it is true that before Proposition 47, unlawful taking or
driving of a vehicle was a necessarily included offense of automobile theft. (People v.
Buss (1980) 102 Cal.App.3d 781, 784.) That was so because the Penal Code classified
the theft of an automobile as grand theft, no matter how much the stolen automobile was
worth. (See Pen. Code, § 487, subd. (d)(1).) Under that law, a person guilty of the crime
of automobile theft was necessarily also guilty of unlawfully taking the automobile,
because the former crime could not be committed without also committing the latter.
(See People v. West (1970) 3 Cal.3d 595, 612 [stating the test of a necessarily included
offense].)
       Proposition 47, however, eliminated automobile theft as a separate crime, instead
reclassifying all thefts into two crimes: (1) the theft of property valued over $950, which
is grand theft, regardless of the nature of the property taken; and (2) the theft of property
valued at $950 or less, which is petty theft, regardless of the nature of the property taken.
(Pen. Code, §490.2.) Thus, after Proposition 47, unlawful taking or driving of an
automobile is no longer a necessarily included offense of automobile theft because the
crime of automobile theft no longer exists. Moreover, unlawful taking or driving of an
automobile is not a necessarily included offense of either grand theft or petty theft
because the latter crimes need not involve an automobile, and therefore it is possible to
commit the latter crimes without committing the former. Accordingly, defendant’s first
point is without merit. This, however, does not end our discussion, as defendant raises
the claim of a violation of equal protection of the law, to which we turn next.
       Defendant’s second point is that denying him resentencing would violate equal
protection of the law because the “loss suffered by the victim was less than $950.” Thus,
he argues that there was no rational reason why he should be subject to a felony sentence
just because he was convicted of unlawfully taking or driving a vehicle in violation of

                                              4
Vehicle Code section 10851, when a person who was convicted of stealing a car worth
$950 or less in violation of Penal Code section 487, subdivision (d) would be subject to a
misdemeanor sentence. The problem with defendant’s argument is that he has not shown
evidence in the record of conviction about the “value of the money, labor, real or
personal property taken.” (Pen. Code, § 490.2.)
       Proposition 47 provides that “[u]pon receiving a petition under subdivision (a)
[i.e., defendant’s petition for recall of sentence], the court shall determine whether the
petitioner satisfies the criteria in subdivision (a).” (Pen. Code, § 1170.18, subd. (b).) The
criteria in subdivision (a) are whether a defendant is “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 . . . .” The question of whether a defendant satisfies the
criteria in subdivision (a) is limited to the record of conviction. (See People v. Bradford
(2014) 227 Cal.App.4th 1322, 1338 [as to Prop. 36 (the Three Strikes Reform Act of
2012) & Pen. Code, § 1170.126, court must determine “petitioner’s eligibility for
resentencing based on the record of conviction”].) In Bradford, this court construed
almost identical language in the Three Strikes Reform Act of 2012, which provides that
“ ‘[u]pon receiving a petition for recall of sentence under this section, the court shall
determine whether the petitioner satisfies the criteria in subdivision (e).’ ([Pen. Code,]
§ 1170.126, subd. (f)).” (Bradford, at p. 1337.) This court “conclude[d] that the trial
court must determine the facts needed to adjudicate eligibility based on evidence obtained
solely from the record of conviction.” (Bradford, at p. 1327.)
       Here, the record of conviction shows only that defendant unlawfully took and
drove “a 1995 Chevy Pickup.” At a hearing on the petition, defense counsel argued that
the “Blue Book value . . . as of November 2014, was $754, depending on the condition of
it, to a certain range of maybe up to $932.” But defendant presented no evidence from
the record of conviction of the “value of the money, labor, real or personal property

                                              5
taken.” (Pen. Code, § 490.2.) Thus, he has failed to establish he was a person who
satisfied the eligibility criteria for Proposition 47 resentencing and therefore has shown
no error in the denial of his petition to recall his sentence.
                                        DISPOSITION
       The judgment is affirmed.



                                                    /s/
                                                    Robie, J.



We concur:



/s/
Blease, Acting P. J.



/s/
Nicholson, J.




                                               6
