Filed 9/27/16 P. v. Winter CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042007
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1476826)

             v.

FRANK ALLEN WINTER,

         Defendant and Appellant.



         Defendant Frank Allen Winter appeals from an order denying his petition to
resentence his felony conviction for vehicle theft with a prior (Veh. Code, § 10851,
subd. (a); Pen. Code, § 666.5) a misdemeanor pursuant to Proposition 47. (Penal Code, §
1170.18, subd. (a)). On appeal, defendant asserts that the trial court erred in denying his
petition based on its finding that he was ineligible for relief under Proposition 47.
                                  STATEMENT OF THE FACTS AND CASE
         On January 1, 2013, the victim reported that her 1996 Honda Accord had been
stolen. The victim told police that the car was worth $2,000. The next day, the police
located the car, and saw defendant enter the car and drive off. The police attempted to
stop the car, but defendant fled at a high rate of speed. One of the officers identified
defendant as the driver of the stolen car. When the police contacted the victim, she told
them that she did not know defendant and had not given him permission to drive her car.
       On January 11, 2013, defendant was arrested for vehicle theft, admitted that he
had used drugs a few hours earlier, and that an acquaintance of his sold the Honda to a
dealership for $300. The police recovered the stolen car on January 12, 2013.
       In February 2014, defendant was charged with driving or taking away a vehicle
with a prior conviction (Veh. Code, § 10851, subds. (a), (e); Pen. Code, § 666.5); buying
or receiving a stolen motor vehicle (Pen. Code, §§ 496d, 666.5); fleeing a pursuing peace
officer’s motor vehicle (Veh. Code, § 2800.1, subd. (a)); being under the influence of a
controlled substance (Health & Saf. Code, § 11550, subd. (a)); and possession of
controlled substance paraphernalia (Health & Saf. Code, § 11364.1). The information
also alleged that defendant had served prison terms for three prior convictions. (Pen.
Code, § 667.5, subd. (b).)
       In September 2014, defendant pleaded no contest to all of the charges with the
exception of buying or receiving a stolen vehicle, which was dismissed by the prosecutor
as a condition of the plea. Defendant was sentenced to a prison term of one year, to be
served consecutively with the prison term from a prior conviction.
       In January 2015, defendant filed a petition pursuant to Proposition 47 (Pen. Code,
§ 1170.18, subdivision (a)), to have his vehicle theft conviction reduced to a
misdemeanor. On January 21, 2015, the court denied defendant’s petition, and defendant
filed a notice of appeal.
                                        DISCUSSION
       Defendant argues that the trial court erred in denying his petition to resentence his
vehicle theft conviction as a misdemeanor pursuant to Proposition 47. He argues that
voters intended that the crime of theft of a vehicle valued at $950 or less be included in
the sentencing reforms of Proposition 47. In addition, defendant asserts that the court’s
denial of his Proposition 47 petition violated his right to equal protection under both the
California Constitution and the Fourteenth Amendment.

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       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47
“reduced the penalties for a number of offenses.” (People v. Sherow (2015) 239
Cal.App.4th 875, 879 (Sherow)).
       Penal Code section 1170.18, which was added by Proposition 47, “creates a
process where persons previously convicted of crimes as felonies, which would be
misdemeanors under the new definitions in Proposition 47, may petition for
resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 879.) Penal Code section 1170.18,
subdivision (a) specifies that a person may petition for resentencing in accordance with
Penal Code section 490.2.
       “[A] petitioner for resentencing under Proposition 47 must establish his or her
eligibility for such resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The
petitioner for resentencing has the “initial burden of proof” to “establish the facts[] upon
which his or her eligibility is based.” (Id. at p. 880.) If the crime under consideration is a
theft offense, “ ‘the petitioner will have the burden of proving the value of the property
did not exceed $950.’ [Citation.]” (Id. at p. 879.) In making such a showing, “[a] proper
petition could certainly contain at least [the petitioner’s] testimony about the nature of the
items taken.” (Id. at p. 880.) If the petition makes a sufficient showing, the trial court
“can take such action as appropriate to grant the petition or permit further factual
determination.” (Ibid.)
       The question of whether defendant is eligible for resentencing under
Proposition 47 is dependent upon whether defendant would have been guilty of a
misdemeanor if the proposition had been in effect in January of 2013 when defendant
committed his offense. Penal Code section 490.2, subdivision (a) provides, in part:
“Notwithstanding [Penal Code] 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

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personal property taken does not exceed nine hundred fifty dollars ($950) shall be
considered petty theft and shall be punished as a misdemeanor . . . .” Nothing in the plain
language of the statute—which covers “any property by theft”—excludes the theft of a
vehicle. Thus, if defendant stole a vehicle with a value of $950 or less, that offense
would have been a misdemeanor under Penal Code section 490.2.
       While Proposition 47 does not list Vehicle Code section 10851 by name or
number, the plain language of Penal Code section 490.2 unambiguously includes conduct
prohibited under Vehicle Code section 10851. Vehicle Code section 10851,
subdivision (a) punishes “[a]ny person who drives or takes a vehicle not his or her own,
without the consent of the owner thereof, and with intent either to permanently or
temporarily deprive the owner thereof of his or her title to or possession of the vehicle,
whether with or without intent to steal the vehicle . . . .” Nothing in this statute addresses
the value of vehicles that are taken or driven. Thus, Vehicle Code section 10851 includes
the taking of a vehicle worth $950 or less by a person who intends to permanently
deprive the owner of his or her title to or possession of the vehicle. But,
“[n]otwithstanding . . . any other law defining grand theft,” Penal Code section 490.2
now punishes the theft of a vehicle worth $950 or less as a misdemeanor.
       Vehicle Code section 10851 prohibits the driving or taking of a vehicle “with
intent either to permanently or temporarily deprive the owner” of possession. Our
California Supreme has held, “[Vehicle Code section 10851] defines the crime of
unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession is a form of theft, and the taking may be
accomplished by driving the vehicle away. For this reason, a defendant convicted under
[Vehicle Code] section 10851[, subdivision] (a) of unlawfully taking a vehicle with the
intent to permanently deprive the owner of possession has suffered a theft
conviction . . . .” (People v. Garza (2005) 35 Cal.4th 866, 871, original italics.) It

                                              4
follows that if a person took a vehicle worth $950 or less with the intent to permanently
deprive the owner of its possession, such conduct is now petty theft, and the conviction is
eligible for resentencing as a misdemeanor under Proposition 47.
       Our appellate courts are in disagreement over the issue of whether theft
convictions under Vehicle Code section 10851 can be eligible for Proposition 47
resentencing, 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, review granted June 8, 2016, S234150;
People v. Gomez (Aug. 20, 2009, E062867) rehg. granted Jan. 11, 2016, subsequent opn.
not certified for pub. Mar. 15, 2016, review granted May 25, 2016 [2009 WL2581321];
see also, People v. Orozco (Aug. 8, 2008, D067313) rehg. granted Feb. 8, 2016,
subsequent opn. not certified for pub. May 25, 2016, petn. for review filed Jul. 1, 2016
[2008 WL 3198770].) Until we receive guidance from the Supreme Court, we will
follow our reasoning in previous cases, and hold that a conviction of theft of a vehicle
valued at under $950 under Vehicle Code section 10851 is eligible for resentencing under
Proposition 47.1
       Here, defendant presented no facts or evidence in his petition in the trial court to
establish that the stolen car was worth $950 or less. The value of a stolen item is
measured by the fair market value of the item at the time and place of its theft. (People v.
Pena (1977) 68 Cal.App.3d 100, 102-104; Pen. Code, § 484, subd. (a); CALCRIM
No. 1801.) There is nothing in the record to show that at the time of the theft, the car was
worth $950 or less. Indeed, the only reference in the record regarding the value of the


       1
          Because we find that a conviction for violation of Vehicle Code section 10851 is
eligible for resentencing as a misdemeanor under Proposition 47, we need not consider
defendant’s equal protection arguments.
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stolen car was the court’s finding that it was worth $2,000 based on information in the
police report.
         Defendant argues that by making a factual finding that the stolen car was worth
$2,000, the trial court violated his Sixth Amendment right to a jury trial under Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi). He contends the facts showing him
ineligible for resentencing must be pleaded and proved to a jury beyond a reasonable
doubt.
         Cases considering the right to a jury trial in the context of Proposition 36 provide
guidance on the issue. The court in People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279 (Kaulick), considered whether a defendant is entitled to a jury trial for
the finding of dangerous in for the purpose of resentencing under Proposition 36. Based
on Dillon v. United States (2010) 560 U.S. 817 (Dillon), the Kaulick court rejected that
argument. The court held that under Dillon, “a defendant’s Sixth Amendment right to
have essential facts found by a jury beyond a reasonable doubt do[es] not apply to limits
on downward sentence modifications due to intervening laws.” (Kaulick, supra, 215
Cal.App.4th at p. 1304 [emphasis added].) The court concluded that “[a]ny facts found at
such a [resentencing] proceeding, such as dangerousness, do not implicate Sixth
Amendment issues.” (Id. at p. 1305.)
         The First District Court of Appeal recently applied the same reasoning to a trial
court’s finding of property value in the context of a resentencing petition under
Proposition 47. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 452 (Rivas-Colon).)
Based on Kaulick and Dillon, the court in Rivas-Colon concluded that the petitioner had
no right to a jury trial on the issue. We find the First District’s reasoning persuasive, and
we reach the same conclusion here.
         Defendant argues alternatively that the information in the police report that the
stolen car was worth $2,000 was outside of the record of conviction, and could not be

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considered by the court in deciding defendant’s eligibility for resentencing. Defendant
relies on People v. Bradford (2014) 227 Cal.App.4th 1322 (Bradford) for this
proposition. In Bradford, the court considered a trial court’s fact-finding process in
adjudicating a Proposition 36 petition for resentencing. The trial court found defendant
had used a deadly weapon in the commission of the underlying offense, making him
ineligible for resentencing under Penal Code 1170.12, subdivision (c)(2)(C)(iii). As a
basis for this finding, the trial court looked to the facts set forth in the court of appeal’s
prior opinion on direct appeal, which stated that the defendant had used a pair of wire
cutters during the offense. In defendant’s appeal from the denial of his resentencing
petition, the court of appeal held that the trial court erred by looking to the facts in the
original opinion on appeal. The appellate court compared the fact-finding required for
determining eligibility to the type of finding required to determine whether a prior
conviction meets the requirements for a sentencing enhancement. (See, e.g., People v.
Guerrero (1988) 44 Cal.3d 343 (Guerrero) [trier of fact may look to entire record of
conviction to determine whether prior conviction constitutes a “serious felony”].)
       Based on Guerrero and its progeny, the Bradford court held that “the trial court
must determine the facts needed to adjudicate eligibility based on evidence obtained
solely from the record of conviction.” (Bradford, supra, 227 Cal.App.4th at p. 1327.)
While courts disagree on the precise scope of the documents included in a “ ‘record of
conviction,’ ” courts generally agree that police reports are excluded. (Draeger v. Reed
(1999) 69 Cal.App.4th 1511, 1521.)
       In People v. Perkins (2016) 244 Cal.App.4th 129 (Perkins), the Fourth District
Court of Appeal considered Bradford’s holding in the context of a Proposition 47
petition. There, the trial court found the defendant ineligible for resentencing on the
ground that the value of the stolen property exceeded $950. On appeal, the defendant
cited Bradford for the proposition that the trial court improperly relied on evidence

                                               7
outside the record of conviction. The court of appeal rejected this argument. The court
distinguished Bradford based on the difference between the required eligibility finding
under Proposition 36 and the required factual finding under Proposition 47: “[E]ligibility
for resentencing under [Propositon 36] turns on the nature of the petitioner’s
convictions—whether an offender is serving a sentence on a conviction for nonserious,
nonviolent offenses and whether he or she has prior disqualifying convictions for certain
other defined offenses. [Citation.] By contrast, under Proposition 47, eligibility often
turns on the simple factual question of the value of the stolen property. In most such
cases, the value of the property was not important at the time of conviction, so the record
may not contain sufficient evidence to determine its value. For that reason, and because
petitioner bears the burden on the issue [citation], we do not believe the Bradford court’s
reasons for limiting evidence to the record of conviction are applicable in Proposition 47
cases.” (Perkins, supra, 244 Cal.App.4th at p. 140, fn. 5.)
       We find the reasoning of Perkins persuasive. The record in this case shows that
the stolen car was worth $2,000. As a result, defendant is not eligible for resentencing
under Proposition 47.2
                                       DISPOSITION
       The order denying defendant’s Proposition 47 petition is affirmed.




       2
          Because we find that defendant’s vehicle theft conviction is ineligible for
reclassification to a misdemeanor, we need not consider respondent’s arguments
regarding recidivism.
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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           GROVER, J.




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