Filed 6/8/16 P. v. Lopez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051348

         v.                                                            (Super. Ct. No. 09CF0727)

OSCAR IVAN LOPEZ,                                                      OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Jonathan S.
Fish, Judge. Affirmed.
                   Richard L. Fitzer, 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
Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
                Defendant Oscar Ivan Lopez appeals the trial court’s denial of his petition
pursuant to Penal Code section 1170.18.1 He argues that unauthorized use of a vehicle
worth less than $950 qualifies him for resentencing under the statute,2 or alternatively,
that we must interpret the statute to include that offense under equal protection principles.
We need not reach either issue, however, because defendant’s petition to the trial court
did not even try to show that the vehicle he attempted to drive without authorization was
worth less than $950. We therefore affirm the order.


                                               I
                                           FACTS
                In 2009, defendant pleaded guilty to attempted unlawful taking or driving a
vehicle (§ 664, subd. (a); Veh. Code § 10851 (a)). Defendant’s sentence was suspended
and the court imposed three years of formal probation.
                In November 2014, the voters approved Proposition 47, which reclassified
certain offenses from felonies to misdemeanors and created a postconviction resentencing
procedure for those convicted of felony offenses that have been reclassified. (§ 1170.18;
People v. Rivera (2015) 233 Cal.App.4th 1085, 1091-1093.) Defendant thereafter filed a
petition to reduce his felony conviction to a misdemeanor. The prosecution’s response
argued that a violation of Vehicle Code section 10851, subdivision (a), or an attempt
under that section, is not eligible for resentencing under Proposition 47. Defendant filed
a supplemental petition, arguing that all property theft, where the property was valued at
less than $950, was intended for inclusion. Alternatively, defendant argued, equal
protection principles required that such thefts be included even if not specifically


1   Subsequent statutory references are to the Penal Code unless otherwise indicated.

2 This issue is currently pending before the California Supreme Court. (People v. Page
(2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)

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enumerated in Proposition 47. No evidence was submitted in support of the petition.
The court denied the petition, and defendant now appeals.


                                              II
                                        DISCUSSION
              We need not resolve the statutory interpretation or equal protection issue.
Defendant’s petition to the trial court failed to present any evidence or make an offer of
proof to establish that the vehicle he was convicted of attempting to take without
authorization was worth $950 or less.
              Defendant argues it is the People’s burden to establish eligibility, but cites
no cases addressing this issue under Proposition 47. Case law has concluded, however,
that it was defendant’s burden, as the petitioning party, to demonstrate that he qualified
for resentencing as a factual matter. (People v. Sherow (2015) 239 Cal.App.4th 875,
880.) In addition to arguing the relevant legal principles, defendant must establish the
necessary facts. Therefore, if the crime under review 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.) “A proper petition could certainly contain at least
[defendant’s] testimony about the nature of the items taken. If [defendant] made the
initial showing the court can take such action as appropriate to grant the petition or
permit further factual determination. [Citation.]” (Id. at p. 880; see also People v.
Johnston (2016) 247 Cal.App.4th 252; People v. Rivas-Colon (2015) 241 Cal.App.4th
444, 448-449.) Because defendant submitted no evidence on this determinative issue, his
petition was properly denied.




                                              3
                                           III
                                     DISPOSITION
             The order is affirmed “without prejudice to subsequent consideration of a
properly filed petition.” (People v. Sherow, supra, 239 Cal.App.4th at p. 881.)




                                                 MOORE, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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