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Filed 1/7/16 P. v. Fernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

STEVEN JOSEPH FERNANDEZ,

Defendant and Appellant.

E063653

(Super.Ct.No. FVI902287)

OPINION

APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton, 

Judge. Affirmed.

Robert Booher, 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 and Meagan J. 

Beale, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Steven Joseph Fernandez was charged by felony 

complaint with receiving a stolen vehicle. (Pen. Code,1 § 496d, subd. (a), count 1.) The 

complaint also alleged that defendant had one prior strike conviction (§§ 1170.12, 

subds. (a)-(d) & 667, subds. (b)-(i)) and had served two prior prison sentences (§ 667.5, 

subd. (b)). Pursuant to a plea agreement, defendant pled guilty to count 1 and admitted 

the two prison priors. The parties stipulated that the police reports provided a factual 

basis for the plea. The court immediately sentenced defendant to the agreed-upon term of 

three years four months in state prison and dismissed the remaining allegation.

Defendant subsequently filed a petition for resentencing, pursuant to section 1170.18

(Proposition 47). The court found him ineligible for relief and denied the petition.

Defendant now appeals from the denial of his petition for resentencing. We affirm.

PROCEDURAL BACKGROUND

On October 22, 2009, defendant entered a plea agreement and pled guilty to one 

count of receiving a stolen vehicle. (§ 496d, subd. (a).) The court sentenced him to three 

years four months in state prison, in accordance with the plea agreement.

On April 9, 2015, defendant filed a petition for resentencing, pursuant to 

Proposition 47, to have his felony designated as a misdemeanor. (§ 1170.18.) On May 

15, 2015, the court found that defendant did not qualify for resentencing under 

Proposition 47 and denied the petition.

 

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 All further statutory references will be to the Penal Code, unless otherwise 

noted.
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DISCUSSION

The Court Properly Found Defendant Ineligible for Relief Under Proposition 47

Defendant argues that he was entitled to have his felony conviction for receiving a 

stolen vehicle (§ 496d, subd. (a)) reduced to a misdemeanor, pursuant to Proposition 47. 

We disagree.

A. Relevant Law

On November 4, 2014, voters enacted Proposition 47, and it went into effect the 

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and 

theft-related offenses misdemeanors, unless the offenses were committed by certain 

ineligible defendants. These offenses had previously been designated as either felonies 

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People 

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new 

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently 

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 

47, may petition for a recall of that sentence and request resentencing in accordance with 

the statutes that were added or amended by Proposition 47.” (Id. at p. 1092.)

B. Receiving a Stolen Vehicle is Not Enumerated in Section 1170.18

Among the crimes reduced to misdemeanors by Proposition 47, rendering the 

person convicted of the crime eligible for resentencing, are: shoplifting where the 

property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property 

where value of the money, labor, real or personal property taken does not exceed $950 
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(§490.2); and receiving stolen property where the property value does not exceed $950 

(§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list section 496d, the offense at 

issue in the present appeal, as one of the code sections amended or added by Proposition 

47. In other words, as this court recently held, receiving a stolen vehicle is not now a 

misdemeanor under Proposition 47. (People v. Garness (2015) 241 Cal.App.4th 1370

[Fourth Dist., Div. Two].) Thus, defendant is simply not statutorily eligible for relief 

under section 1170.18. 

Defendant concedes that Proposition 47 does not include section 496d.

Nevertheless, he contends his conviction should be reduced to a misdemeanor. He 

asserts that Proposition 47 reduced “the parallel crime of vehicle theft (§ 487, subd. (d)), 

and the crime of receiving or concealing stolen property (§ 496, subd. (a)), to 

misdemeanors when the value of the property stolen does not exceed $950.” He further 

states that Proposition 47 added section 490.2, subdivision (a), which provides that: 

“Notwithstanding Section 487 . . . obtaining any property by theft where the value of the 

money . . . or personal property taken” is under $950 shall be considered misdemeanor 

petty theft. He reasons that Proposition 47 makes stealing a car valued under $950 a 

petty theft crime, through section 490.2, subdivision (a). Defendant then claims, 

“Reading the statutes as a whole, the correct conclusion is that Proposition 47, which 

reduced low-value stealing a car to a misdemeanor, was intended to create a parallel 

exception to the crime of receiving a low-value stolen car.” (Italics added.) However, to 

construe Proposition 47 to include receiving a stolen vehicle (§ 496d) would violate the 
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cardinal rule of statutory construction. “‘“When statutory language is clear and 

unambiguous, there is no need for construction and courts should not indulge in it.”’” 

(People v. Hendrix (1997) 16 Cal.4th 508, 512.) Proposition 47 lists a specific series of 

crimes that qualify for reduction to a misdemeanor, separated with the conjunction “or” 

and ending with the phrase “as those sections have been amended or added by this act.” 

(§ 1170.18, subd. (a).) That list does not include section 496d, receiving a stolen vehicle. 

“The legislative inclusion of the . . . crimes . . . necessarily excludes any other[s].” 

(People v. Gray (1979) 91 Cal.App.3d 545, 551.) Based on the statutory language, the 

court properly denied defendant’s petition to reduce his conviction to a misdemeanor.

Moreover, even if defendant’s statutory interpretation of Proposition 47 was 

correct, he failed to show that he was eligible for relief. “[A] petitioner for resentencing 

under Proposition 47 must establish his or her eligibility for such resentencing.” (People 

v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) Defendant had the burden to 

show the value of the stolen vehicle did not exceed $950 to establish eligibility for 

resentencing under section 1170.18. However, he did not provide any supporting 

documentation and did not cite to the record or other evidence. He simply failed to meet 

his burden of proof. We further note that there is apparently no finding of fact of the 

value of the stolen vehicle in the trial record. (See § C., post.) 

In his reply brief, defendant claims that the prosecution must bear the burden of 

proof that the value of the property exceeded $950, asserting that it would violate due 

process to place the burden of proof on him. However, his argument and the authorities 
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he cites are based on the prosecutor’s burden of proof in the initial prosecution for an 

offense. (See Sherow, supra, 239 Cal.App.4th at p. 880.) The resentencing provisions of 

Proposition 47 “deal with persons who have already been proved guilty of their offenses 

beyond a reasonable doubt.” (Ibid.) Contrary to defendant’s claim, the prosecution does 

not have the burden to prove a defendant is not eligible for resentencing. Rather, the 

burden is on the petitioner to prove that he is eligible for the resentencing he is 

requesting. (Id. at p. 878.)

Defendant urges this court not to follow Sherow, claiming that it is distinguishable 

and irrelevant. However, Sherow squarely answered the question of who bears the 

burden of proof on a Proposition 47 petition. In that case, the defendant petitioned for 

resentencing of his second degree burglary convictions, but “the petition . . . gave 

virtually no information regarding Sherow’s eligibility for resentencing.” (Sherow, 

supra, 239 Cal.App.4th at p. 880.) The Sherow court cited the well-settled principle that 

“‘“[A] party has the burden of proof as to each fact the existence or nonexistence of 

which is essential to the claim for relief or defense he is asserting.”’” (Id. at p. 879.) The 

court held that the petitioner had the burden of establishing eligibility for resentencing 

under Proposition 47. (Id. at p. 878.) Since the defendant in that case failed to do so, the 

court affirmed the trial court’s denial of his petition for resentencing. (Id. at pp. 880-

881.) Like the defendant in Sherow, defendant here did not satisfy his burden of proof.
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C. Defendant Has Not Shown an Equal Protection Violation

Defendant also claims that equal protection principles require that his conviction 

for receiving a stolen vehicle be reduced to a misdemeanor. The problem is that 

defendant has not demonstrated that his conviction for receiving a stolen vehicle places 

him in a class of persons similarly situated to those who receive relief under Proposition 

47. (See Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [“‘The first prerequisite to 

a meritorious claim under the equal protection clause is a showing that the state has 

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

manner.’”].) 

Defendant specifically contends that persons who steal a low-value car (under 

$950) are similarly situated to persons who receive or conceal the same stolen car. 

Assuming arguendo that stealing a vehicle worth less than $950 would be a misdemeanor 

petty theft under Proposition 47 (§§ 490.2, 1170.18), defendant has failed to demonstrate 

that he was similarly situated, since he has not shown that the stolen vehicle he received 

was worth less than $950. The record of conviction showed only that he “did unlawfully 

buy and receive [a] Maroon 1987 Toyota Pickup . . . that was stolen and had been 

obtained in a manner constituting theft and extortion” Defendant did not attach to his 

petition for resentencing any evidence of the “value of the . . . personal property taken.” 

(§ 490.2.) Therefore, he has failed to establish an equal protection violation and has 

shown no error in the denial of his petition for resentencing.
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Finally, we note that defendant raises, for the first time in his reply brief, the claim 

that “post-Proposition 47, a conviction for receiving a stolen vehicle would violate the [In 

re] Williamson [(1954) 43 Cal.2d 651] preemption rule.” “Withholding a point until the 

reply brief deprives the respondent of an opportunity to answer it, however. Hence, a 

point raised for the first time therein is deemed waived and will not be considered, unless 

good reason is shown for failure to present it before.” (People v. Baniqued (2000) 85 

Cal.App.4th 13, 29, fn. omitted.) No good cause is shown here.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.