Filed 11/19/15 P. v. Vernon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                                          H042231
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1473437)

             v.

TIMOTHY PAUL VERNON,

         Defendant and Appellant.



         Appellant Timothy Paul Vernon appeals from an order denying his petition for
resentencing under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal,
appellant contends that the trial court erred in ruling that he was ineligible for
resentencing. As set forth below, we conclude that the trial erred in ignoring the plain
language of Penal Code section 490.2, which was added by Proposition 47, and we will
reverse.
                                                   BACKGROUND
         On January 15, 2014, the Santa Clara County District Attorney filed a complaint
charging appellant with vehicle theft with a prior conviction (Veh. Code, § 10851,
subd. (a)/Pen. Code, § 666.5; count 1), receiving a stolen motor vehicle with a prior
conviction (Pen. Code, §§ 496d/666.5; count 2), recklessly evading a peace officer (Veh.
Code, § 2800.2, subd. (a); count 3), possession of burglary tools (Pen. Code, § 466; count
4), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 5).
       On June 10, 2014, appellant pleaded no contest to vehicle theft with a prior
conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5; count 1) and recklessly
evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 3).1 The prosecutor
dismissed the remaining counts charged in the complaint. On August 29, 2014, the trial
court sentenced appellant to a two-year prison term for the vehicle theft and a consecutive
eight-month prison term for the reckless evasion.
       On February 27, 2015, appellant filed a petition for resentencing under
Proposition 47. The petition requested recall of the felony sentence for the vehicle theft
and resentencing as a misdemeanor. In support of the petition, appellant filed a brief
regarding the applicability of Proposition 47 to violations of Vehicle Code section 10851.
The brief alleged that the vehicle appellant stole was worth less than $950, and that
appellant should thus be resentenced as a misdemeanant.
       The trial court denied appellant’s resentencing petition on April 6, 2015. In
denying the petition, the trial court explained that appellant was ineligible for
resentencing due to “the lack of any effect of Proposition 47 on violations of Vehicle
Code Section 10851.”
       Appellant now appeals from the order denying his petition for resentencing.2


       1
         The Attorney General characterizes appellant’s Vehicle Code section 10851
conviction as “unauthorized taking or use of a vehicle,” not as vehicle theft. The
Attorney General’s characterization of appellant’s crime conflicts with the record. Count
one of the complaint charged appellant with “VEHICLE THEFT WITH A PRIOR
CONVICTION.” (Capitalization in original.) Appellant pleaded no contest to count one,
and the plea form described that offense as “Auto theft w/prior.”
       2
         Appellant requested that we take judicial notice of the ballot arguments in the
Voter Information Guide for Proposition 47. We grant the request for judicial notice.
Both parties requested permission to file supplemental letter briefing regarding People v.
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                                        DISCUSSION
       Appellant urges us to reverse the order denying his petition for resentencing,
arguing that the trial court erred in finding him ineligible for resentencing under
Proposition 47. Appellant’s argument is twofold. He first asserts that “the voters
intended all thefts involving property valued under $950 to be treated as misdemeanors.”
He next asserts that it violates equal protection principles to deny misdemeanor
sentencing to a conviction for “stealing a vehicle worth less than $950.” As explained
below, we conclude that the trial court erred in ignoring the plain language of Penal Code
section 490.2, and we will reverse.3
       Proposition 47 “reduced the penalties for a number of offenses.” (Sherow, surpra,
239 Cal.App.4th at p. 879.) Appellant’s argument relies on Penal Code section 490.2,
which was added by Proposition 47. Penal Code section 490.2 provides, in pertinent
part: “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 . . . .” (Pen. Code, § 490.2, subd. (a).)
       Penal Code section 1170.18, which was also 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




Sherow (2015) 239 Cal.App.4th 875 (Sherow), and both parties submitted such briefing
along with their requests. We grant both parties’ requests to file supplemental letter
briefing, and we have considered such briefing in reaching our holding.
       3
         In light of our conclusion that the trial court erred in ignoring the plain language
of Penal Code section 490.2, we need not address appellant’s equal protection argument.
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specifies that a person may petition for resentencing in accordance with Penal Code
section 490.2. (Pen. Code, § 1170.18, subd. (a).)
       “[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.)
       Here, appellant’s entire argument is premised on the assumption that the vehicle
he stole was valued at $950 or less. Appellant’s assumption regarding the value of the
stolen vehicle is based on the following assertion in his brief supporting the petition for
resentencing: “[Appellant] was convicted of violating Vehicle Code section 10851
involving a 1993 Honda Accord with approximately 170,238 miles. According to Kelly
Blue Book, the trade in value for that particular vehicle ranges from $228 to $522, and
sale to a private party is approximately $907 for a vehicle in fair condition.”
       Appellant’s assertion regarding the stolen vehicle’s value, without any evidence
supporting it, did not prove that the vehicle was worth $950 or less. (See Sherow, supra,
239 Cal.App.4th at p. 880 [a proper petition for resentencing could “at least” contain the
petitioner’s testimony regarding the stolen item].) Although appellant’s offer of proof
regarding the vehicle’s value was imperfect, the trial court did not even consider it. That
was error.



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       The trial court incorrectly concluded that vehicle theft convictions pursuant to
Vehicle Code section 10851 do not fall within the purview of Proposition 47. The trial
court’s conclusion conflicted with the plain language of Penal Code section 490.2. Penal
Code section 490.2 is unequivocal: “[O]btaining 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).) Thus, the trial court erred in concluding that appellant
was ineligible for resentencing without even considering appellant’s offer of proof
regarding the value of the vehicle he stole. We reverse and remand the matter so that
appellant may perfect his offer of proof regarding the value of the stolen vehicle, the trial
court can determine the value of the vehicle, and the trial court may resentence appellant
as a misdemeanant if the vehicle was in fact worth $950 or less.
                                       DISPOSITION
       The order denying appellant’s resentencing petition is reversed, and the matter is
remanded for proceedings consistent with this opinion.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




People v. Vernon
H042231



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