Filed 12/9/15 P. v. Urbina CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G051369
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 13HF3278)
         v.
                                                                       OPINION
EDWARD URBINA,

     Defendant and Appellant.


                   Appeal from an order of the Superior Court of Orange County, Jonathan S.
Fish, Judge. Affirmed.
                   Jeffrey S. Kross, 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, Arlene A. Sevidal and
Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              Edward Urbina appeals from the trial court’s denial of his petition under
Proposition 47 (see Pen. Code, § 1170.18; all further undesignated statutory references
are to the Penal Code) to have his felony conviction for attempting to unlawfully take a
vehicle (§ 664, subd. (a); Veh. Code, § 10851, subd. (a)) designated as a misdemeanor.
He contends Proposition 47 implicitly renders the unlawful taking or attempted taking of
a vehicle valued at no more than $950 a misdemeanor, or in the alternative that denying
misdemeanor designation for such an offense violates equal protection. His challenge
fails at the outset, however, because he made no effort to establish the vehicle he
attempted to take was worth less than $950. We therefore affirm the order.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              In April 2014, Urbina pleaded guilty to attempted unlawful taking of a
vehicle, with a gang enhancement. (§ 664, subd. (a); Veh. Code, § 10851, subd. (a);
§ 186.22, subd. (b)(1).) As the factual basis for his plea, he admitted that in October
2013 he, along with two accomplices, “unlawfully attempt[ed] to drive and take a 1995
Honda Civic . . . with the intent to temporarily and permanently deprive the owner of his
title and possession of the vehicle.” He also admitted he committed the offense for a
gang-related purpose. Under the plea agreement, the trial court dismissed other counts
against Urbina and placed him on three years’ probation under a suspended sentence, on
condition he serve 365 days in jail, with 314 days of presentence credit.
              In December 2014, probation authorities sought to revoke his probation,
and Urbina responded with a petition to reduce his felony conviction to a misdemeanor
under Proposition 47. His petition did not suggest the value of the vehicle he attempted
to take fell in the range of petty theft under Proposition 47. (See § 490.2 [defining petty
theft with an upper limit of $950 in stolen value].) Instead, he simply invited the trial
court to “examine the record of conviction and determine if the violation of § 10851
and/or 496d in a specific case was [] a permanent deprivation (a vehicle theft) or a

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temporary deprivation, and if the value of the vehicle or use stolen (as applicable) was
$950 or less.” (Original parentheses.) Nor did he make an offer of proof at the hearing
or otherwise suggest the vehicle’s value was $950 or less. The trial court denied Urbina’s
petition without comment, revoked his probation, and sentenced him to the middle term
of one year in state prison, with credit for 390 days served. He now appeals.
                                                II
                                           DISCUSSION
                Urbina argues the trial court erred in refusing to reduce his felony
conviction to a misdemeanor. Adopted by the electorate as the Safe Neighborhoods and
Schools Act (the Act), Proposition 47 “reduced the penalties for a number of offenses”
(People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow)), including forgery, check
fraud, receiving stolen property, and certain low-level drug offenses. Accordingly, the
Act amended sections 473, 476a, 496 to specify misdemeanor punishment in most
circumstances for the foregoing theft-related offenses, and similarly amended the Health
and Safety Code for the drug offenses. The Act also amended section 666 to make petty
theft a wobbler for some recidivists,1 and added: (1) section 459.5 to define shoplifting
as a misdemeanor offense; (2) section 490.2 to define petty theft (“obtaining any property
by theft,” if the value does not exceed $950); and (3) section 1170.18 to establish a
resentencing or felony reduction procedure for anyone previously convicted of a felony
“who would have been guilty of a misdemeanor . . . had this act been in effect at the time
of the offense . . .” (id., subds. (a), (f)).
                The electorate also specified in Proposition 47 that grand theft (§ 487) of an
automobile is a misdemeanor in certain circumstances. The Penal Code sets particular
dollar values for some stolen items to qualify as grand theft (e.g., $250 for “domestic
fowls, avocados, olives, citrus or deciduous fruits . . . or other farm crops,” § 487,

        1    “A wobbler is an offense chargeable as either a felony or a misdemeanor.”
(Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828, fn. 5.)

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subd. (b)(1)(A)), but defines theft of an automobile (or firearm) of any value as grand
theft (§ 487, subd. (d)). In adopting Proposition 47 and defining petty theft in newly-
enacted section 490.2, the electorate specified: “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,” except for recidivists in certain circumstances. (§ 490.2, subd. (a).)
              Urbina’s conviction offense, attempted taking of a vehicle (§ 664, Veh.
Code, § 10851), punishes both attempted “joyriding” and permanently taking a victim’s
vehicle as a wobbler, in the prosecutor’s discretion. The gravamen of the offense is
“driv[ing] or tak[ing] a vehicle not [one’s] 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.” (Veh. Code, § 10851, subd. (a).) Urbina
contends that where, as here, the record establishes an intent to permanently deprive the
victim of his or her vehicle, and therefore the mental state necessary for theft instead of
mere joyriding, the offense falls within Proposition 47’s provision for petty theft of “any”
property (§ 490.2), if the value of the vehicle is $950 or less.
              The Attorney General insists no one convicted of a Vehicle Code
section 10851 felony violation is eligible for misdemeanor resentencing because that
code section is not listed in Proposition 47. The Attorney General cautions against
expanding the proposition beyond the limits of redress set by the electorate. Urbina notes
that Vehicle Code section 10851 “is a theft conviction” if it “is for the taking of the
vehicle, with the intent to permanently deprive the owner of possession” (People v.
Garza (2005) 35 Cal.4th 866, 881, original italics), and therefore a well-established lesser
included offense of grand theft auto (§ 487; see, e.g., People v. Marshall (1957)
48 Cal.2d 394, 400; People v. Pater (1968) 267 Cal.App.2d 921, 926-927). Urbina
argues it would be illogical for the electorate to expressly refer to section 487 in defining

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petty theft offenses (§ 490.2) eligible for misdemeanor resentencing (§ 1170.18) without
also implicitly intending to reach lesser included offenses like Vehicle Code
section 10851, when it involves a theft.
              In other words, Urbina contends that because all automobile theft
constitutes grand theft under section 487, by specifying in section 490.2 that
misdemeanor treatment is available for “all” thefts under $950.01 “[n]otwithstanding
[s]ection 487,” the electorate made clear that Proposition 47 misdemeanor redesignation
is available for defendants convicted under Vehicle Code section 10851of permanently
taking a vehicle, if it was worth no more than $950.
              Alternatively, if the electorate did not so intend, Urbina asserts the harsher
felony punishment for his Vehicle Code offense as compared to a misdemeanor
conviction under sections 487 and 490.2 for stealing the same low-value vehicle violates
his constitutional right to equal protection of the law. The Attorney General argues that,
even assuming defendant is similarly situated with a person charged or convicted under
the Penal Code instead of the Vehicle Code, a rational basis may be found for their
disparate treatment in “allow[ing] prosecutorial discretion to charge some thefts of
vehicles as felonies based on the particular facts of the case.”
              We need not resolve the parties’ contentions or determine the precise
contours of the voters’ intent in enacting Proposition 47. Urbina’s petition was fatally
deficient in failing to make an offer of proof or present any evidence the value of the
vehicle he took was $950 or less. “[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 additional
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

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[the petitioner’s] testimony about the nature of the items taken.” (Id. at p. 880.) If the
petitioner makes a sufficient showing, the trial court “can take such action as appropriate
to grant the petition or permit further factual determination.” (Ibid.) Urbina made no
such threshold showing, and therefore the trial court did not err in denying his petition.
                                             III
                                      DISPOSITION
              The trial court’s order denying Urbina’s resentencing petition is affirmed.




                                                   ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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