Filed 4/21/16 P. v. Fuentes 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G051349

         v.                                                            (Super. Ct. No. 12WF3040)

DANIEL FUENTES,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
                   Paul Kleven, 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, A. Natasha Cortina,
Alastair J. Agcaoili and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
               This case presents an issue that is currently pending in the California
Supreme Court: Does Proposition 47 apply to the crime of unlawfully taking or driving a
vehicle in Vehicle Code section 10851? Assuming it does, appellant has failed to satisfy
the criteria for obtaining Proposition 47 relief. We therefore affirm the trial court’s order
denying appellant’s request to reduce his felony conviction to a misdemeanor.
                                 PROCEDURAL BACKGROUND
               In November 2012, appellant was charged in a felony complaint with one
count of unlawfully taking or driving a “2002 Toyota Sierra” in violation of Vehicle
Code section 10851, subdivision (a).1 The complaint also alleged appellant committed
two misdemeanors by driving under the influence of alcohol and with a blood-alcohol
content of .08 percent or more. In pleading guilty to charges, appellant admitted he
“unlawfully drove a car [he] knew was stolen . . . while under the influence of alcohol
with a blood alcohol level above .20%.” Thereupon, the trial court suspended imposition
of sentence and placed appellant on probation.
               Two years later, following the passage of Proposition 47, appellant
petitioned the trial court to reduce his felony conviction to a misdemeanor. Although
Proposition 47 does not expressly apply to violations of 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. Appellant also claimed he was entitled to Proposition 47
relief as a matter of equal protection. The court denied his petition.
                                              DISCUSSION
               Appellant renews his claims regarding the scope of Proposition 47 and his
entitlement to equal protection under the law. However, we discern no basis for
disturbing the trial court’s ruling.




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


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                  “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.)2 The crime was not reclassified as a pure misdemeanor by
Proposition 47, nor is it listed within the text of that law. (See 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
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 resentenced to a misdemeanor?
                  As we noted at the outset, the California Supreme Court is currently
considering that issue. (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,

          2          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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S232344.) But even if the court answers that question in the affirmative, appellant is still
not entitled to relief per Penal Code section 490.2 because he was convicted of
unlawfully driving – not stealing – a vehicle. Moreover, he has failed to prove the value
of the vehicle he unlawfully drove was $950 or less.
                  As to the latter issue, appellant argues it was not his burden to prove
anything, and as the party opposing his petition the state had the duty to establish he was
ineligible for resentencing by showing the car he drove was worth more than $950. We
disagree. Appellant’s argument is derived from cases involving the burden of proving a
prior conviction for sentence enhancement purposes. (See, e.g., People v. Guerrero
(1988) 44 Cal.3d 343, 352.) In that context, it makes sense to impose the burden of proof
on the prosecution because it is seeking to use the prior conviction to increase the
defendant’s punishment.
                  In contrast, Proposition 47 is designed to ameliorate the effect of a prior
felony conviction. Because the initiative is designed for the defendant’s benefit,
appellant, as the movant below, had the burden of proving he satisfied the criteria for
relief. (Evid. Code, § 500; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450;
People v. Sherow (2015) 239 Cal.App.4th 875, 880.) Since appellant failed to provide
any evidence regarding the value of the vehicle he unlawfully drove, he failed to prove he
was entitled to relief under Penal Code 490.2.3
                  Appellant’s fallback position is that the equal protection principles require
his section 10851 conviction to be treated the same way as a Penal Code section 490.2
conviction arising from the theft of a car valued at $950 or less. However, as explained
above, appellant was not convicted of a theft offense, nor has he proven the value of the
vehicle he unlawfully drove. Therefore, he cannot establish he is similarly situated with

          3         Contrary to appellant’s claim, it is immaterial the prosecution failed to raise the burden of proof
issue at the time the court denied his request for resentencing because the burden of proof is something the trial
court was required to apply irrespective of whether the parties brought it up. Stated differently, the burden of proof
is a structural issue that is not subject to forfeiture.


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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.
                                       DISPOSITION
              The trial court’s order denying appellant’s Proposition 47 petition is
affirmed.



                                                   BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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