Filed 12/7/15 P. v. Murrieta CA

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

VINCENT SABLAN MURRIETA,

Defendant and Appellant.

 H042031

 (Santa Clara County

 Super. Ct. No. C1233066)

Appellant Vincent Sablan Murrieta appeals from an order denying his petition for 

Proposition 47 resentencing. On appeal, appellant contends that the trial court erred in 

ruling that he was ineligible for resentencing. 

BACKGROUND

On May 24, 2012, the Santa Clara County District Attorney filed a complaint 

charging appellant with vehicle theft with a prior conviction (Veh. Code, § 10851, 

subd. (a)/Pen. Code, § 666.5; count 1) and making or altering a key with knowledge that 

it would be used in the commission of a crime (Pen. Code, § 466; count 2). The 

complaint alleged one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i)/1170.12) 

and one prior prison term (Pen. Code, § 667.5, subd. (b)). 

On August 23, 2012, appellant pleaded no contest to vehicle theft with a prior 

conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5). Appellant admitted one 
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prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i)/1170.12) and one prior prison 

term (Pen. Code, § 667.5, subd. (b)). Count two was dismissed. 

At the sentencing hearing on October 9, 2012, the trial court sentenced appellant

to four years in prison for the vehicle theft. The trial court struck the punishment for the 

prior prison term pursuant to Penal Code section 1385. 

On January 8, 2015, appellant filed a petition for resentencing under 

Proposition 47 (Pen. Code, § 1170.18). The petition requested recall of the felony 

sentence for the vehicle theft and resentencing as a misdemeanor. 

On February 17, 2015, the trial court denied appellant’s petition for resentencing. 

In denying the petition, the trial court explained: “[Section] 10851 of the Vehicle Code is 

not one of the offenses enumerated in the resentencing provisions of [Penal Code section] 

1170.18, or affected by the amendments or additions to the Penal Code under 

Proposition 47. [¶] And for that reason, I find the defendant is ineligible for the requested 

relief and the petition is denied.” 

DISCUSSION

Appellant contends that the trial court erred in finding him ineligible for 

Proposition 47 resentencing. His argument is twofold. He first asserts that “the voters 

intended all thefts involving property valued under $950 to be treated as misdemeanors.” 

(Italics omitted.) He next asserts that it violates equal protection principles to deny 

misdemeanor sentencing to a conviction for “stealing a vehicle worth less than $950.” 

As explained below, we must affirm. 

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 

“reduced the penalties for a number of offenses.” (People v. Sherow (2015) 239 

Cal.App.4th 875, 879 (Sherow). Appellant’s argument relies on Penal Code section 

490.2, which was added by Proposition 47. Penal Code section 490.2 provides, in 
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pertinent part: “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 . . . .” (Pen. Code, 

§ 490.2, subd. (a).) 

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 

specifies that a person may petition for resentencing in accordance with Penal Code 

section 490.2. (Pen. Code, § 1170.18, subd. (a).) 

“[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.) 

“Perhaps the most fundamental rule of appellate law is that the judgment 

challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively 

demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “The 

very settled rule of appellate review is a trial court’s order/judgment is presumed to be 

correct, error is never presumed, and the appealing party must affirmatively demonstrate 
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error on the face of the record.” (People v. Davis (1996) 50 Cal.App.4th 168, 172

(Davis).) 

Here, appellant’s entire argument is premised on the assumption that the vehicle 

he stole was valued at $950 or less. He presented no facts or evidence in his resentencing 

petition, however, to show that the vehicle was worth $950 or less. Nor does the record 

of appellant’s conviction contain any evidence showing that the vehicle was valued at 

$950 or less. Given that nothing in the record before us shows that the vehicle was worth 

$950 or less, appellant has failed to demonstrate error, and we must affirm. 

Appellant contends that he made a sufficient “initial showing of eligibility” for 

resentencing. His contention relies on the complaint, which alleged theft of a “1992 

Mazda B220” on “May 22, 2012.” Because the complaint showed the Mazda “was 20 

years old” at the time of the taking, appellant contends that it is a “reasonable inference” 

to assume that “its value was less than $950.” Appellant’s speculation regarding the 

value of the stolen vehicle is insufficient to satisfy the “initial burden of proof” to 

“establish the facts” upon which eligibility for resentencing is based. (Sherow, supra, 

239 Cal.App.4th at p. 880.) Appellant’s speculation regarding the value of the stolen 

vehicle also is insufficient to meet the burden to “affirmatively demonstrate error on the 

face of the record.” (Davis, supra, 50 Cal.App.4th at p. 172.) 

In sum, because nothing in the record before us shows that the stolen vehicle was 

worth $950 or less, appellant has failed to demonstrate error, and we must affirm. We 

will affirm without prejudice. We note that a petition containing a declaration regarding 

the value of the stolen vehicle could be sufficient to set the resentencing 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”].) 
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DISPOSITION

The order denying the petition for resentencing is affirmed without prejudice to 

subsequent consideration of a petition that demonstrates a stolen vehicle valued at $950 

or less. 
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______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

MÁRQUEZ, J.