Filed 6/28/16 P. v. Thomas 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064089

v.                                                                      (Super.Ct.No. FVI014090)

MELINDA KAY THOMAS,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez

and Miriam Ivy Morton, Judges. Affirmed.

         Thea Greenhalgh, 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, and Eric A. Swenson, Kristine A.

Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and

Respondent.



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       Pursuant to a plea agreement, defendant and appellant Melinda Kay Thomas

pleaded guilty to unlawfully taking or driving a vehicle. (Veh. Code, § 10851, subd. (a).)

Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and

Schools Act, which, among other things, established a procedure for specified classes of

offenders to have their felony convictions reduced to misdemeanors and be resentenced

accordingly. (Pen. Code,1 § 1170.18.) Defendant filed a petition for resentencing

pursuant to section 1170.18. The trial court found him ineligible for relief and denied the

petition. Defendant appeals, arguing the court erred in finding him ineligible, and that

the failure to apply Proposition 47 violated equal protection. We affirm.

                    I. FACTS AND PROCEDURAL BACKGROUND

       On October 1, 2001, defendant was charged with three counts, the unlawful taking

or driving of a vehicle, to-wit, a 1986 Hyundai (Veh. Code, § 10851, subd. (a)), and two

counts of forgery (§ 475, subds. (a), (b)). On December 7, 2001, defendant pleaded

guilty to unlawfully taking or driving a vehicle. She was sentenced to the low term of 16

months in state prison, to run concurrent to another sentence case No. FMB004256.2

       On May 8, 2015, defendant filed a petition pursuant to Penal Code section 1170.18

(Proposition 47), requesting redesignation of her Vehicle Code offense as a misdemeanor

and resentencing. The trial court denied the petition on the ground that defendant was not



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

       2   Judge Alvarez conducted defendant’s plea hearing on December 7, 2001.


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eligible for resentencing because unlawful taking or driving of a vehicle is not one of the

crimes specified in section 1170.18.3

                                     II. DISCUSSION

A. Proposition 47.

       On November 4, 2014, voters enacted Proposition 47, and it went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition

47, may petition for a recall of that sentence and request resentencing in accordance with

the statutes that were added or amended by Proposition 47.” (Id. at p. 1092)

       As relevant to the present case, Proposition 47 added section 490.2, which

provides as follows: “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 . . . .” (§ 490.2, subd. (a).)




       3   Judge Morton heard defendant’s resentencing petition on June 12, 2015.

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Section 490.2 is explicitly listed in section 1170.18 as one of “those sections [that] have

been amended or added” by Proposition 47. (§ 1170.18, subd. (a).)

B. Eligibility.

       Defendant argues that he is eligible for relief because Penal Code section 1170.18,

subdivision (a), refers to Penal Code section 490.2 (petty theft), which includes all thefts

of items with a value under $950, including vehicle thefts. He reasons that Penal Code

section 1170.18 explicitly applies to violations of Penal Code section 487, through the

introductory clause of Penal Code section 490.2, so it must apply to lesser included

offenses of Penal Code section 487, including Vehicle Code section 10851.

       The issue of whether a defendant convicted of violating Vehicle Code section

10851 may be eligible for relief under Proposition 47 is currently before the California

Supreme Court in People v. Page (2015) 241 Cal.App.4th 714, review granted

January 27, 2016, S230793. However, we need not decide the issue of defendant’s

eligibility for the reasons discussed below.4

C. Defendant Failed to Meet Her Burden of Establishing the Value of the

Automobile.

       Even if we were to assume that section 490.2 applied as defendant would have it,

it does not appear that she would be entitled to relief. Defendant’s guilty plea shows only

that she unlawfully took or drove a vehicle; nothing in the record establishes the value of

the vehicle to be $950 or less. The burden of proof lies with defendant to show the facts

       4Because we are not deciding the issue of eligibility, we need not decide the issue
of whether Proposition 47 violates equal protection.

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demonstrating her eligibility for relief, including that the value of the stolen vehicle did

not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877 (Sherow).)

Defendant did not attempt to meet that burden in her petition, providing no information at

all regarding her eligibility for resentencing in her petition. The proper remedy is to

permit defendant to file a new petition that seeks resentencing on the Vehicle Code

section 10851 offense. (See People v. Perkins (2016) 244 Cal.App.4th 129, 140 [“In any

new petition, defendant should describe the stolen property and attach some evidence,

whether a declaration, court documents, record citations, or other probative evidence

showing” that the vehicle’s value does not exceed $950].)

                                       III. DISPOSITION

       The order denying defendant’s petition for resentencing is affirmed without

prejudice to subsequent consideration of a properly filed petition. (Sherow, supra, 239

Cal.App.4th at p. 881.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 HOLLENHORST
                                                                          Acting P. J.
We concur:

       MILLER
                                  J.

       SLOUGH
                                  J.




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