Filed 5/26/16 P. v. Guereca 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051188

         v.                                                            (Super. Ct. No. 14CF3099)

LUIS RAUL GUERECA,                                                     OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Dan
McNerney, Judge. Affirmed.
                   Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender,
and Jay Moorhead, Deputy Public Defender, for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Arelene A. Sevidal, Amanda E. Casillas and Christen Somerville, Deputy
Attorneys General, for Plaintiff and Respondent.
              Appellant Luis Raul Guereca was convicted of a felony for unlawfully
taking or driving a vehicle in violation of Vehicle Code section 10851.1 He contends the
trial court erroneously denied his request to reduce his conviction to a misdemeanor
pursuant to Proposition 47. Alternatively, he contends equal protection principles require
his conviction to be treated as a misdemeanor. Finding these arguments unavailing, we
affirm the trial court’s order.
                    FACTUAL AND PROCEDURAL BACKGROUND
              In December 2014, one month after Proposition 47 was passed, appellant
was charged in a felony information with unlawfully taking or driving a vehicle and
receiving stolen property. (§ 10851, subd. (a); Pen. Code, § 496d, subd. (a).) The
information also alleged appellant had suffered nine prior theft-related convictions and
served eight prior prison terms. (Pen. Code, §§ 666.5, 667.5, subd. (b).)
              At trial, the evidence showed that on the morning of September 14, 2014,
Santa Ana police received a call about “a stolen silver Acura that was being stripped”
near 100 South Minnie Street. Officer Greg Beaumarchais proceeded to that area and
saw a silver Acura travelling west on Pine Street. Beaumarchais stopped the vehicle and
contacted the driver, appellant, who was the only person in the car. At that time, the
officer noticed “[t]he steering column of the car had been torn away and the ignition was
hanging from the column.” It turned out the car – a 1998 Acura Integra – had been stolen
from a residence in Irvine earlier that morning.
              The jury convicted appellant as charged, and the court found the prior
allegations to be true. At sentencing, appellant asked the court to reduce his section
10851 conviction to a misdemeanor pursuant to Proposition 47. Even though Proposition
47 does not mention section 10851, appellant argued the initiative was applicable to him
to the extent it made the theft of property valued at $950 or less a misdemeanor. He also


       1      Unless noted otherwise, all further statutory references are to the Vehicle Code.


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argued he was entitled to Proposition 47 relief as a matter of equal protection. However,
the court denied appellant’s request and sentenced him to eight years in prison. 2
                                                   DISCUSSION
                  Appellant renews his claims regarding the scope of Proposition 47 and his
entitlement to equal protection under the law. However, we see no basis for disturbing
the trial court’s ruling.
                  “Proposition 47 reclassifie[d] as misdemeanors certain non-serious,
nonviolent crimes that previously were felonies, and authorizes trial courts to consider
resentencing anyone who is currently serving a sentence for any of the listed offenses.”
(People v. Awad (2015) 238 Cal.App.4th 215, 218.) The crime of unlawfully taking or
driving a vehicle is a so-called “wobbler” because it is punishable in the court’s
discretion as a felony or a misdemeanor. (§ 10851, subd. (a); People v. Douglas (1999)
20 Cal.4th 85, 88.)3 The crime was not reclassified as a pure misdemeanor by
Proposition 47, nor is it listed within the text of that provision. (Pen. Code, § 1170.18.)
                  However, Proposition 47 did redraw the boundary line between grand and
petty theft in some cases by adding section 490.2 to the Penal Code. That provision
states, “Notwithstanding [Penal Code] [s]ection 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[.]” (Pen. Code, § 490.2,
subd. (a).) Unlike section 10851, Penal Code section 490.2 is expressly listed in
Proposition 47 as a criminal statute that has been added or amended by the terms of the

          2          The trial court also denied appellant’s request to reduce his conviction for receiving stolen
property to a misdemeanor pursuant to Proposition 47. However, the court eventually dismissed that count
altogether on the basis a defendant cannot be convicted of both taking and receiving the same property. (§ 496,
subd. (a); People v. Ceja (2010) 49 Cal.4th 1.)
          3          Section 10851 provides, “(a) Any 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 . . . is guilty of a
public offense” that is punishable by a fine, jail time or up to three years in prison.


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initiative. (Pen. Code, § 1170.18, subd. (a).) That raises the question presented in this
case: If a person has been convicted of a felony violation of section 10851 under
circumstances that also constitute a violation of Penal Code section 490.2, is he eligible
to be sentenced to a misdemeanor?
              As it turns out, our supreme court is currently considering that issue. (See
People v. Page (2015) 241 Cal.App.4th 714, rev. granted Jan. 27, 2016, S230793; People
v. Haywood (2015) 243 Cal.App.4th 515, rev. granted Mar. 9, 2016, S232250; People v.
Ortiz (2016) 243 Cal.App.4th 854, rev. granted Mar. 16, 2016, S232344.) We believe it
likely they will conclude the legislation could well have chosen to treat the taking and
driving of something as large and potentially dangerous as an automobile differently than
a fur coat or a set of golf clubs. So we are convinced appellant’s argument fails legally.
(See People v. Solis (2016) 245 Cal.App.4th 1099, 1114 [in declining to extend
Proposition 47 to include unlawful taking or driving a vehicle, the court found “felony
prosecutions under section 10851 serve important public safety and deterrence functions
that differ from those served by prosecutions for theft.”].)
              However, even if our high court were to extend Penal Code section 490.2
relief to section 10851, appellant would still not be entitled to sentencing relief because
he failed to prove the car he was driving was worth $950 or less. Appellant contends it
was not his burden to establish this fact, and since he was tried after Proposition 47 was
passed, the prosecution had the duty during his trial to show he was outside the scope of
that initiative. We disagree.
              Generally, the moving party has the burden to prove all of the facts that are
needed to support his claim for relief. (Evid. Code, § 500.) The rule has consistently
been applied to defendants who are seeking Proposition 47 relief (see, e.g., People v.
Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450; People v. Sherow (2015) 239
Cal.App.4th 875, 879-880), and we see no reason not to apply it here. Irrespective of
when appellant’s trial took place, the prosecution was not required to establish the value

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of the car he was driving to obtain a conviction under section 10851. Rather, the state
only had to prove appellant unlawfully took or drove that vehicle. Only because
appellant wishes to take advantage of Proposition 47 is the value of the car relevant.
Since appellant was the one who was seeking to establish the value of the car to his
advantage, he had the burden of proving the car’s worth. There is nothing unfair about
allocating the burden of proof in this fashion. (Ibid.)
              Appellant’s fallback position is that the equal protection principles require
his unlawful vehicle taking conviction to be treated the same way as a Penal Code section
490.2 conviction arising from the theft of a vehicle valued at $950 or less. However, as
explained above, appellant has failed to prove the value of the car he took. Therefore, he
cannot establish he is similarly situated with respect to persons who have violated Penal
Code section 490.2, which is fatal to his equal protection claim. (People v. Buffington
(1999) 74 Cal.App.4th 1149, 1155.)
              Even if appellant could satisfy the similarly-situated requirement, the law
is clear that “neither the existence of two identical criminal statutes prescribing different
levels of punishments, nor the existence 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.) In other words, the state has considerable leeway
in terms of choosing which punishment is suitable for a particular offender when his
conduct violates more than one statute. Unless a defendant seeking Proposition 47 relief
can show he has been signaled out for differential treatment based on some invidious
criteria, no equal protection violation will be found. (Id. at p. 839.) Because appellant
has failed to make such a showing, his equal protection claim cannot prevail.




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                                    DISPOSITION
            The trial court’s order is affirmed.



                                                   BEDSWORTH, ACTING P. J.
WE CONCUR:



MOORE, J.



FYBEL, J.




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