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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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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 from an order denying his petition to 

resentence his two felony convictions for vehicle theft as misdemeanors pursuant to

Proposition 47. (Pen. Code § 1170.18, subd. (a)). On appeal, defendant asserts that the 

trial court erred in denying his petition based on its finding that he was ineligible for 

Proposition 47 relief. 

STATEMENT OF THE CASE

This appeal 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 misdemeanor 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 him, on condition that he would be ordered to complete 
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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 conditions. 

In July 2014, defendant stole a 1994 Toyota Camry and he was arrested. In case 

No. SS141969A, defendant was charged with unlawful driving or taking of a vehicle 

(Veh. Code, § 10851, subd. (a)), and with misdemeanor possession of controlled 

substance paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)). The complaint also 

alleged 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 theft 

conviction; the misdemeanor drug paraphernalia offense was dismissed. 

In December 2014, defendant filed a petition asking the court to resentence his 

two felony convictions for violating Vehicle Code section 10851 in case 

Nos. SS141969A and SS141057A as misdemeanors in accordance with Proposition 47. 

The trial court denied defendant’s Proposition 47 petition. In case No. SS141057A, the 

court reinstated defendant on probation. In case No. SS141969A, the court suspended 

imposition of sentence and placed defendant on three years’ felony probation, with the 

condition that he serve 227 days in county jail, with 227 days of credit for time served. 

DISCUSSION

Defendant argues that the trial court erred in denying his petition to have his 

vehicle theft convictions resentenced as misdemeanors 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 Constitution. 

On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods 

and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 
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“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 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, 

subdivision (a) specifies that a person 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 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.) 

The question of whether defendant is eligible for resentencing is dependent upon 

whether defendant would have been guilty of misdemeanors 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 section 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 theft 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 a 
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vehicle. Thus, if defendant stole vehicles with values of $950 or less, those offenses 

would be misdemeanors under Penal Code section 490.2.

While Proposition 47 does not list Vehicle Code section 10851 by name or 

number, the plain language of Penal Code section 490.2 unambiguously includes conduct 

prohibited under Vehicle Code section 10851. Vehicle Code section 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 to 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 

other law defining grand theft,” Penal Code section 490.2 now punishes the theft of a 

vehicle worth $950 or less as a misdemeanor.

Vehicle Code section 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 section 10851] defines 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 section 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, original 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 Proposition 47.
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Our appellate courts are in disagreement over the issue of whether theft 

convictions under Vehicle Code section 10851 can be eligible for Proposition 47 relief, 

and we have not yet received guidance from the California Supreme Court. (See People 

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. granted Jan. 11, 2016, subsequent opn. not 

certified 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 section 10851 is eligible for resentencing under 

Proposition 47.

Here, defendant’s argument that his two convictions of vehicle theft should be 

reduced 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 

time 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 show 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 resentencing petition 

could contain “at least” the petitioner’s testimony regarding the stolen item].) 
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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 affirm 

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 “could 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”].) 

DISPOSITION

The order denying defendant’s petition to resentence his Vehicle Code section 

10851 convictions to misdemeanors pursuant to Proposition 47 petition is affirmed 

without prejudice to subsequent consideration of a petition that demonstrates that the 

stolen cars were each valued 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 section 490.2.
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

GROVER, J.