Filed 4/12/16 P. v. Smith 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063504

v.                                                                       (Super.Ct.No. FVI800708)

CHARLES AUSTIN SMITH,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Miriam Ivy

Morton, Judge. Affirmed.

         Coreen Ferrentino, 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 Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.




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       On November 4, 2014, the voters approved Proposition 47, The Safe

Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain

nonserious, nonviolent felonies to misdemeanors. Proposition 47 allows a person

convicted of a felony prior to its passage, who would have been guilty of a misdemeanor

under Proposition 47, to petition the court to reduce his or her felony to a misdemeanor

and be resentenced.

       On September 19, 2008, prior to the passage of Proposition 47, defendant and

appellant Charles Austin Smith entered a guilty plea to a felony violation of attempted

unlawful driving or taking a vehicle, a 1999 Toyota Camry, within the meaning of Penal

Code section 664 and Vehicle Code section 10851. Defendant filed a one-page petition

to recall his sentence (Petition) stating that his conviction of “VC 664/10851(a)” should

be reduced to a misdemeanor. The trial court denied the Petition on the grounds that

defendant’s conviction was not eligible for resentencing under Proposition 47.

       Defendant now claims on appeal as follows: (1) his conviction for violating Penal

Code section 664/Vehicle Code section 10851 is properly considered a theft offense,

which is a misdemeanor under the newly enacted Proposition 47; (2) the omission of

Penal Code section 664/Vehicle Code section 10851 from Proposition 47 violates equal

protection; and (3) his constitutional rights were violated when the trial court denied his

Petition without holding a hearing and securing his presence at the hearing.

       We affirm the denial of the Petition.




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                     FACTUAL AND PROCEDURAL HISTORY

       On April 9, 2008, an Information was filed against defendant in San Bernardino

County case No. FVI800708, charging him with the unlawful driving or taking of a

vehicle in violation of Vehicle Code section 10851, subdivision (a). Specifically, he was

charged with taking a 1999 Toyota Camry from Ernesto Guereque without the consent of

and with intent, either permanently or temporarily, to deprive the said owner of title to

and possession of said vehicle. He was further charged with the crime of receiving stolen

property, the same Toyota Camry, within the meaning of Penal Code section 496d,

subdivision (a). It was further alleged as to both counts pursuant to Penal Code section

666.5 that he had previously been convicted of a violation of Penal Code section 496d,

subdivision (a). It was also alleged that defendant had served three prior prison terms

within the meaning of Penal Code section 667.5, subdivision (b).

       On September 19, 2008, defendant signed a plea agreement in which he agreed to

enter a plea of guilty to one count of “attempt unlawful driving or taking a vehicle”

within the meaning of Penal Code section 664 and Vehicle Code section 10851,

subdivision (a). On September 19, 2008, defendant pled guilty in open court to one count

of attempted unlawful taking or driving of a motor vehicle, a felony violation of Penal

Code section 664/Vehicle Code section 10851, subdivision (a). Counsel stipulated to and

the trial court found the factual basis of the plea based on the preliminary hearing

transcript. Defendant was sentenced to eight months in state prison. He was given 272

days of custody credit. As a result, he was discharged on the case. The remaining




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charges were dismissed. The abstract of judgment listed his conviction as “VC

664/10851(A) ATTEMPT: TAKE VE.”

       On April 9, 2015, defendant filed his Petition. It consisted of one page.

Defendant requested a hearing date of May 1, 2015. The sole information on his

conviction provided in the Petition was as follows: “Defendant in the above-entitled case

requests that, pursuant to Penal Code § 1170.18, the following felony violation(s)

VC664/10851(a) be designated as misdemeanor(s).” He stated that he had completed his

sentence. Defendant provided no additional facts or argument to the trial court.

       On April 9, 2015, the People filed a one-page response to the Petition and stated,

“Defendant is not entitled to the relief requested. Reason: [¶] VC 10851 is not affected

by Prop 47.”

       On April 30, 2015, the trial court issued a one-page denial of the Petition. It did

not conduct a hearing. It found, “PC 664/VC 10851(A) does not qualify under Prop 47,

PC 1170.18. Petition denied.” Defendant filed an amended notice of appeal from the

denial of his Petition on May 14, 2015.

                                      DISCUSSION

       Defendant’s Petition filed in the trial court merely cited to his conviction of

violating Penal Code section 664/Vehicle Code section 10851, and that it should be

reduced to a misdemeanor. No further facts or argument regarding his eligibility for

resentencing were presented in the Petition. On appeal, defendant contends the trial court

erred by denying the Petition because the language of Proposition 47 is broadly inclusive

and covers all theft-related offenses where the value of the stolen property is $950 or less.


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He insists that when a person violates Vehicle Code section 10851, subdivision (a) by

taking a car with the intent to permanently deprive the owner of possession, “he in

essence suffers a theft conviction.” He further argues that since he was only convicted of

an attempted violation of Vehicle Code section 10851, the value of the vehicle was

essentially zero. He contends he qualified for reduction of his felony conviction to a

misdemeanor violation of Penal Code section 490.2.

       While defendant’s claims may in fact be true, we affirm the denial of defendant’s

Petition because he failed to meet his burden in the trial court of alleging facts that he

was eligible for resentencing under Proposition 47. We further reject he has properly

raised an equal protection claim. Finally, he was not entitled to a hearing on his

eligibility to be resentenced.

       A.     INADEQUACY OF PETITION

       “The voters approved Proposition 47 at the November 4, 2014 general election,

and it became effective the next day.” (People v. Diaz. (2105) 238 Cal.App.4th 1323,

1328.) “Proposition 47 ‘was intended to reduce penalties “for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors.”’”

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.)

       Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal Code

section 1170.18, provides in pertinent part, “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


                                              5
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

Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have

been amended or added by this act.” Under Penal Code section 1170.18, subdivision (b)

the trial court first determines whether the petition has presented a prima facie case for

relief under Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the

criteria in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,

within its discretion, determines the petitioner would pose an unreasonable risk to public

safety. (Pen. Code, § 1170.18, subd. (b).)

       Penal Code section 1170.18, subdivision (f) provides: “A person who has

completed his or her sentence for a conviction, whether by trial or plea, of a felony or

felonies who would have been guilty of a misdemeanor under this act had this act been in

effect at the time of the offense, may file an application before the trial court that entered

the judgment of conviction in his or her case to have the felony conviction or convictions

designated as misdemeanors.” Penal Code section 1170.18, subdivision (h) provides:

“Unless requested by the applicant, no hearing is necessary to grant or deny an

application filed under subsection (f).”

       Vehicle Code section 10851 is not listed in Penal Code section 1170.18, and the

issue of whether a defendant is eligible for resentencing for a violation of that section is

currently under review in the California Supreme Court in People v. Page (2015) 241

Cal.App.4th 714, review granted, January 27, 2016, S230793. We only briefly address




                                              6
the possibility that a violation of Vehicle Code section 10851 could be reduced to a

misdemeanor under Proposition 47.

       Section 490.2 was added to the Penal Code. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part,

“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.” (Italics added.) Penal

Code section 487, subdivision (a), provides that if the value of the money, labor, real or

personal property taken exceeds $950, the offense is a felony. Penal Code section 487,

subdivision (d)(1) provides that grand theft occurs if the property is an automobile,

regardless of the value.

       Penal Code section 1170.18 clearly states that a defendant must show he was

convicted of a felony but would have been convicted of a misdemeanor if Proposition 47

had been in effect at the time of the offense. For an offense under Penal Code section

490.2, which was added to the Penal Code, defendant had to allege facts in the Petition

that he would have been guilty of a misdemeanor violation of Penal Code section 490.2

rather than the felony conviction. It is true that Vehicle Code section 10851 is not listed

in Penal Code section 1170.18. However, Vehicle Code section 10851 can be violated by

the taking of a vehicle with the intent to permanently deprive the owner of the vehicle.

Assuming that a defendant takes a vehicle valued under $950, such violation could

constitute a violation of Penal Code section 490.2.


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        However, in this case, defendant failed to prove that the value of the vehicle in this

case was under $950, or to allege any facts to support that he was eligible for

resentencing. The petitioner has the burden of establishing eligibility for relief under

Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880

(Sherow).)

        In Sherow, the defendant was ultimately convicted of five counts of second degree

burglary, and filed a petition to recall his sentence, which was denied. As set forth in the

opinion, “Sherow appeals challenging only the decision as to counts 1 and 2. He

contends the record does not show the loss as to each count exceeded $950 and thus the

two counts should be resentenced as misdemeanors. Sherow’s petition sought

resentencing as to all five counts without any separate discussion of the counts, no

reference to facts or evidence and no argument.” (Sherow, supra, 239 Cal.App.4th at p.

877.) The People responded that Sherow had failed to meet his burden under Penal Code

section 1170.18 to show the losses did not exceed $950. (Sherow, at p. 877.) The

defendant, in turn, argued that his “blanket request” to reduce his convictions to

misdemeanors, without any discussion or elaboration, placed the burden on the

prosecution to discern whether he was eligible for relief under Proposition 47. (Id. at p.

878.)

        The Sherow court observed that, “Proposition 47 does not explicitly allocate a

burden of proof.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The court stated that

“applying established principles of statutory construction we believe a petitioner for

resentencing under Proposition 47 must establish his or her eligibility for such


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resentencing. In such cases, it is important to keep in mind a person . . . was validly

convicted under the law applicable at the time of the trial of the felony offenses. It is a

rational allocation of burdens if the petitioner in such cases bear[s] the burden of showing

that he or she is eligible for resentencing of what was an otherwise valid sentence.” (Id.

at p. 878.)

       The Sherow court also referred to background information prepared by “Judge J.

Richard Couzens and Presiding Justice Tricia A. Bigelow” on Proposition 47, which

provided, “‘The petitioner will have the initial burden of establishing eligibility for

resentencing under section 1170.18(a): i.e., whether the petitioner is currently serving a

felony sentence for a crime that would have been a misdemeanor had Proposition 47 been

in effect at the time the crime was committed. If the crime under consideration is a theft

offense under sections 459.5, 473, 476a, 490.2 or 496, the petitioner will have the initial

burden of proving the value of the property did not exceed $950.’” (Sherow, supra, 239

Cal.App.4th. at p. 879.)

       The Sherow court determined that the defendant’s petition, which gave “virtually

no information” regarding his eligibility for resentencing, was properly denied. It further

noted that “[a] proper petition could certainly contain at least [defendant’s] testimony

about the nature of the items taken. If he made the initial showing the court can take such

action as appropriate to grant the petition or permit further factual determination.”

(Sherow, supra, 239 Cal.App.4th at p. 880; accord People v. Rivas-Colon (2015) 241

Cal.App.4th 444, 449 [“Under Sherow [the defendant] had the burden to establish ‘the




                                              9
facts, upon which his . . . eligibility [was] based[,]’ i.e. that the value of the property he

took from the store did not exceed $950”].)

       Here, defendant’s Petition only stated that he had been convicted of violating

Penal Code section 664/Vehicle Code section 10851. No further facts regarding his

eligibility for resentencing were provided. Defendant did not allege that although

Vehicle Code section 10851 is not listed in Proposition 47, he was otherwise eligible

because his offense constituted a theft offense under Penal Code section 490.2. He did

not allege that since he was convicted of an attempt crime, the value of the items taken

was zero. Based on the foregoing, defendant was not entitled to resentencing under Penal

Code section 1170.18 because he did not meet his burden of showing he was eligible for

resentencing under Proposition 47.

       B.     EQUAL PROTECTION

       Defendant raises for the first time on appeal that the omission of Penal Code

section 664/Vehicle Code section 10851 from Proposition 47 violates equal protection.

Defendant argues that assuming the Proposition 47 voters intended to only reduce vehicle

thefts under Penal Code section 487, subdivision (d)(1) to misdemeanors under Penal

Code section 490.2, while leaving Vehicle Code section 10851 violations as felonies,

such discrimination is impermissible under the Equal Protection Clause of the United

States and California Constitutions.

       “‘The United States and California Constitutions entitle all persons to equal

protection of the laws. [Citations.] This guarantee means “that no person or class of

persons shall be denied the same protection of the laws which is enjoyed by other persons


                                               10
or other classes in like circumstances.” [Citation.] A litigant challenging a statute on

equal protection grounds bears the threshold burden of showing “that the state has

adopted a classification that affects two or more similarly situated groups in an unequal

manner.” [Citation.] Even if the challenger can show that the classification differently

affects similarly situated groups, “[i]n ordinary equal protection cases not involving

suspect classifications or the alleged infringement of a fundamental interest,” the

classification is upheld unless it bears no rational relationship to a legitimate state

purpose.’” (People v. Singh (2011) 198 Cal.App.4th 364, 369; see also People v.

Hofsheier (2006) 37 Cal.4th 1185, 1199.)

       We have not concluded in this case that a person who is convicted pursuant to

Vehicle Code section 10851 is ineligible for resentencing under Penal Code section

1170.18, but a person who is convicted of violating Penal Code section 487, subdivision

(d)(1) would be eligible for resentencing. Rather, we have concluded defendant was

required to show that he would have been eligible to be convicted of the misdemeanor

violation of Penal Code section 490.2 had it been in effect at the time he committed his

offense. It is conceivable that a person who has been convicted of a violation of Vehicle

Code section 10851, and files an adequate petition alleging the value of the vehicle taken

was less than $950, and had the intent to permanently deprive the owner of the vehicle,

could show he would have been guilty only of a violation of Penal Code section 490.2 at

the time of the offense, and could be eligible for resentencing based on the language in

the statute.




                                              11
       However, we simply cannot reach a decision in this case as to whether defendant

was eligible for resentencing because defendant’s Petition filed in the trial court never

raised these issues and was woefully inadequate. Moreover, “As a general rule, only

‘claims properly raised and preserved by the parties are reviewable on appeal.’” (People

v. Smith (2001) 24 Cal.4th 849, 852.) We will not address defendant’s equal protection

claim, raised for the first time on appeal; even if we were to consider the issue, defendant

failed to allege facts in the Petition to support his argument.

       C.     RIGHT TO A HEARING

       Defendant further contends that his constitutional rights were violated by the

failure of the trial court to conduct a hearing and secure his presence at the hearing.

Here, the only information before the trial court was that defendant had been convicted of

an attempted unlawful taking or driving of a motor vehicle. It is clear, as set forth ante,

that Vehicle Code section 10851 is not listed in Penal Code section 1170.18. Based on

the face of the Petition, the trial court could determine that defendant was ineligible for

resentencing, and no hearing was required. Defendant had to allege additional facts, i.e.

that the value of the vehicle was under $950, or zero, as he now contends, and that his

crime constituted a theft offense. The trial court here could summarily deny the Petition

because it contained no facts or explanation how defendant was eligible for resentencing.

(See Sherow, supra, 239 Cal.App.4th at p. 877; see also People v. Oehmigen (2014) 232

Cal.App.4th 1, 6-7 [defendant not entitled to development of facts or hearing if trial court

determined he was ineligible on the face of a Penal Code section 1170.126 petition for

resentencing].)


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       Here, defendant’s Petition gave the trial court no information as to the value of the

property, or that his violation of Vehicle Code section 10851 was a theft offense. As

alleged, the trial court did not err by concluding that since defendant had a conviction of

violating Penal Code section 664/Vehicle Code section 10851, without more, he was not

entitled to resentencing under Proposition 47.

                                       DISPOSITION

       The trial court’s order denying defendant’s Petition to recall his sentence is

affirmed. Nothing in this decision or in Penal Code section 1170.18 forecloses

defendant’s ability to file a new petition alleging sufficient facts to support his claim that

his conviction should be reduced to a misdemeanor.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                          MILLER
                                                                                  Acting P. J.


We concur:


CODRINGTON
                                  J.


SLOUGH
                                  J.




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