Filed 9/27/16 P. v. Ruiz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.
MIGUEL ANGEL GALLO RUIZ,
Defendant and Appellant. H041767 (Monterey County Super. Ct. Nos. SS141057 & SS141969)

Defendant Miguel Angel Gallo Ruiz appeals fr om an order denying his petition to

resentence his two felony convictions for vehicle theft as mi sdemeanors pursuant to Proposition 47. (Pen. Code § 1170.18, subd. (a)). On appeal, defendant assert s that the
trial court erred in denying his petition based on its finding that he was ineligible for Proposition 47 relief.
S TATEMENT O F T HE C ASE This a ppeal involves two separate superior court cases. In April 2014, defendant stole a 1991 Mazda Navajo and he was arrested. In case No. SS141057A, defendant was charged with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and
with m isdemeanor resisting, obstructing or delaying a public officer in the performance of his or her duties (Pen. Code, § 148, subd. (a)(1)). In May 2014, defendant pleaded no contest to the charges against h im, on condition that he would be ordered to comp let e2

felony probation. In June 2014, the trial court suspended imposition of sentence and placed defendant on felony probation for three years, with various terms and c onditions. In July 2014, defendant stole a 1994 Toyota Camry and he was arrested. In c ase No. SS141969A , defendant was charged with unlawful driving or taking of a vehicle (Veh. C ode, § 10851, subd. (a) ), and with misdemeanor possession of controlled substance paraphernalia (Health & Saf. Cod e, § 11364.1, subd. (a) ). The complaint also
alle ged the enhancement allegation that appellant had a prior auto theft conviction (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)). In September 2014, defendant pleaded no contest to the vehicle theft charge, and admitted his prior vehicle the ft conviction; the misdemeanor drug paraphernalia offense was dismissed. In December 2014, defendant filed a peti tion asking the court to resentence his two felony convictions for violating Vehicle Code section 10851 in case
N o s

. SS 141969A and SS141057A as misdemeanors in accordance with Proposition 47. The trial court denied defendant’s Proposition 47 petition

. In case No. SS141057A, the
court reins tated defendant on probation. In case No. SS141969A, the court suspended imposition of sentence and pla ced defendant on three years’ felony probation, wi th the
condition that he serve 227 days in county jail, with 227 days of credit for time serv ed.
D ISCUSSION Defendant argues that the trial cou rt erred in denying his petition to have his
vehicle theft co nviction s resentenced as misdemeanor s pursuant to Proposition 47. He argues that voters intended that the crime of theft of a vehicle valued at $950 or less be included in the sentencing reforms of Proposition 47. In addition, defendant asserts that
the court’s denial of his Proposition 47 petition violated his right to equal protection
under the California Constitut ion

. On November 4, 2014 , the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. ( People v. Rivera (2015) 233 Cal.A pp.4th 1085, 1089.) Proposition 473

“reduced the penalties for a number of offenses.” ( People v. Sherow (2015) 239 Cal.App.4th 875, 879 ( Sherow )). Penal Code section 1170.18, which was also added by Proposition 47, “creates a process where persons prev iously 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, subdivision (a) specifies that a pers on may petition for resentencing in accordance with
Penal Code section 490.2. “[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 o f 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 make s a sufficient showing, the trial court “can take such action as appropriate to grant the petition or permit further factual determination.” ( Ibid .) The question of whether defendant is eligible for resentencing is dependent upon
whether defendant woul d have been guilty of misdemeanor s if Proposition 47 had been in
effect in April 2014 when he stole the 1991 Mazda Navajo, and in July 2014, when he stole the 1994 Toyota Camry. Penal Code s ection 490.2 , subdivision (a) provides, in part: “Notwithstanding [Penal Code] 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 t heft and shall be punished as a misdemeanor

. . . .” Nothing in the plain language of the statute

— which covers “ any property by theft”

— excludes the theft of a4

veh icle. Thus, if defendant stole vehicle s with value s of $950 or less, those offense s would be misdemeanor s under Penal Code s ection 490.2. While Proposition 47 does not list Vehicle Code s ection 10851 by name or number, the plain language of Penal Code s ection 490.2 unambiguously in cludes conduct prohibited under Vehicle Code section 10851. Vehi cle Code s ection 10851 , subdivision (a), punishes “[a]ny 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 t o or possession of the vehicle, whether with or
without intent to steal the vehicle

. . . .” Nothing in this statute addresses the value of
vehicles that are taken or driven. Thus, Vehicle Code section 10851 includes the taking of a vehicle worth $950 or less by a person who intends to permanently deprive the owner of his or her title to or possession of the vehicle. But, “[n]otwithstanding .

. . any

o ther law defining grand theft,” Penal Code s ection 490.2 now punishes the theft of a vehicle worth $950 or less as a misdemeanor.
Vehicle Code s ection 10851 prohibits the driving or taking of a vehicle “with intent either to permanently or temporarily deprive the owner” of possession. (§ 10851 , subd (a) .) Our California Supreme has held, “[ Vehicle Code s e ction 10851] define s the crime of unlawful driving or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted
under s ection 10851 [, subdivision] (a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction

. . . .” ( People v. Garza (2005) 35 Cal.4th 866, 871, o riginal italics.) It follows that if a person took a vehicle worth $950 or less with the intent to permanently deprive the owner of its possession, such conduct is now petty theft, and the conviction is eligible for resentencing as a misdemeanor under Pro position 47.5

Our appellate courts are in disagreement over the issue of whether theft
convictions under Vehicle Code s ection 10851 can be eligible for Proposition 47 relief , and we have not yet received guidance from the California Supreme Court. (See Pe ople v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793; People v. Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016, S232250; People v.
Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016, S234150; People v. Gomez (Aug. 20, 2009, E062867 ) rehg. grante d Jan. 11, 2016, subsequent opn. not certifie d for pub. Mar. 15, 2016, review granted May 25, 2016 [2009 WL2581321]; see also, People v. Orozco (Aug. 8, 2008, D067313 ) rehg. granted Feb. 8, 2016 , subsequent

opn. not certified for pub. May 25, 2016, petn. for review filed Jul. 1, 2016 [2008
WL 3198770] .) Until we receive guidance from the Supreme Court, we will follow our reasoning in previous cases, and hold that a conviction of theft of a vehicle valued at
under $950 under Vehicle Code s ection 10851 is eligible for resentencing under Proposition 47. Here, defendant’s argument that his two convictions of vehicle theft should be

re duced to misdemeanors is premised on the assumption that the 1991 Mazda Navajo,
and the 1994 Toyota Camry were each worth $950 or less. However, defendant made no attempt in his petition in the trial court to establish the value of either of the cars.
The value of a stolen item is measured by the fair market value of the item at the

t ime and place of its theft . ( People v. Pena (1977) 68 Cal.App.3d 100, 102

- 104; Pen. Code § 484, subd. (a); CALCRIM No. 1801.) There is nothing in the record to sh ow that in 2014, the Mazda and the Toyota that defendant sole were each worth $950 or less. The value of a vehicle cannot be established by inference based on the car’s age at the time of the theft. Defendant must provide evidence in the trial court to establish the cars’
value. (See Sherow, supra, 239 Cal.App.4th at p. 880 [a proper resentenc ing petition could contain “at least” the petitioner’s testimony regarding the stolen item].)6

Because the record does not show that the stolen cars were each worth $950 or less, defendant has failed to demonstrate error, and we must affirm. 1 We will af firm without prejudice. We note that a petition containing a declaration regarding the fair market value of the vehicle could be sufficient to set the matter for hearing. (See Sherow,

supra, 239 Cal.App.4th at p. 880 [a proper resentencing petition “coul d certainly contain at least” the petitioner’s testimony about the stolen item, and on a sufficient showing the trial court “can take such action as appropriate to grant the petition or permit further factual determination”].)
D ISPOSITION The order deny ing defendant’s petition to resentence his Vehicle Code s ection 10851 convictions to misdemeanors pursuant to Proposition 47 petition is affirmed without prejudice to subseq uent consideration of a petition that demonstrates that the
stol en cars were each v alued at $950 or less.

1 Given this result , we need not address defendant’ s argument that it would violate equal protection principles to treat his conduct differently under Vehicle Code section 10851 as compared with Penal Code s ection 490.2.7 ______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

GROVER, J.