Filed 1/25/16 P. v. Lopez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

JACOB JEDEMIAH LOPEZ,

Defendant and Appellant. H042129 (Santa Clara County Super. Ct. No. C1485792)

Defend ant Jacob Jedemiah Lopez app eals from an order denying his petition for
resentencing under Proposition 47 , the Safe Neighborhoods and Schools Act. On appeal,
Lopez contends the trial court erred in ruling he was ine ligible for resent encing. As set

forth below, we conclude that the trial court erred in ignoring th e plain language of Penal

Code section 490.2, 1 which was added by Proposition 47, and we will reverse.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

On June 9 , 2014 , the Santa Clara County District Attorney filed a complaint
charging Lopez with vehicle theft with a prior conviction ( Veh. Code, § 10851, subd. (a)

, § 666.5; count 1), being under the influence of a controlled substance (Health & Saf.

Code, § 11550, subd . (a), count 2), and possession of a motor vehicle master key
(§ 466.5, subd. (a), count 3). The complaint further alleged Lopez had two prison priors.
(§ 667.5, subd. (b).)

1 Unspecified statutory references are to the Penal Code.2

On September 18 , 2014, Lopez pleaded no contest to vehicle theft with a prior

conviction (count 1) and being under the influence of a controlled substance (count 2). In
exchange, t he prosecutor agreed to dismiss the charge of possession of a master key
(count 3) and the two prison prior allegations. On November 3, 2014 , th e tria l court

sentenced Lopez to three years in county jail on count 1 under section 1170,

subdivision (h)(1)

. On count 2, Lopez was sentenced to 90 days in county jail which the
trial court deemed served at sentencing.
On February 2 , 2015, Lopez petitio n ed for resentencing under Proposition 47.
The petition requested recall of the felony sentence for the vehicle theft and res entencing

as a misdemeanor. In support of his petition, Lopez filed a brie f regarding the
applicability of Proposition 47 to viol ations of Vehicle Code section 10851. In that brief,
Lopez alleged that the vehicle he stole , a 1987 Acura Legend, was worth less than $950,

and that he should thus be resentenced as a misdemeanant.

The trial court denied the res entencing petition on Mar ch 10

, 2015. At the hearing
on the petition, the trial court explained that Lopez was ineligible for resentencing

because “ Proposition 47 and Penal Code Section 1170.18 specifically make no reference

whatever [ sic ] to Vehicle Code Section 10851 , and notably not to Penal Code

Section 496d. ”
Lopez appeals the denial of his petition. 2

II. D ISCUSSION
Lopez argues the trial court e rred in finding him ineligible for resentencing under
Proposition 47 , because the voters intended all thefts involving property valued under

$950 to be treated as misdemea nors. He also asserts it is a violation of equal protection
principles to de ny misdemeanor sentencing for a conviction for stealing a vehicle worth

2 Lopez requested we take judicial notice of the Voter Information Guide for Proposition 47. We granted the request for judicial notice by separate order on July 14, 2015

.3

less than $950. As explained bel ow, we conclude that the trial court erred in ignoring the
plain language of secti on 490.2, and we will reverse. 3

Proposition 47 “reduced the penalties for a number of off enses.” ( People v.

Sherow (2015) 239 Cal.App.4th 875 , 879 ( Sherow ) .) Lope z’s argume nt relies on

section 490.2, which was added by Proposition 47 and which provides, in pertinent part: “Notwithstanding Section 487 or any other provision of law defin ing 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

. . . . ” (§ 490.2, subd. (a).)

S ection 1170.18, which was also added by Proposition 47, “ creates a process
where persons previously co nvicted 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 .) S ection 1170.18 specifies t hat a person may petition

for resentencing in accordance with section 490.2. (§ 1170.18, subd. (a).)
“[A] petitioner for resentencing under Proposition 47 must establish his or her
eligibility for such resenten cing.” ( 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 addition al burden of proving the value of the
property did not exceed $95 0.’ ” ( Id . at p. 879 .) In making such a showing, “[a] proper

pe tition could certainly contain at least [the petitioner’s] testimony abou t the nature of the

items taken .” ( Id . at p. 880.) If the petition m akes a sufficient showing, the trial court
“can take such action as appropriate to grant th e petition or permit further f actual

determination.” ( Ibid .)

3 In light of our conclusion that the trial court erred in ignoring the plain language of sect ion 490.2, we need not address Lopez’s equal protection argument.4

Lopez’s argument is premised on his assertion that the vehicle he stole was valued

at $950 o r less. In the brief he submitted supporting his petition for resentencing, Lopez
avers that the vehicle he stole, “[a] 1987 Acura [Legend,] is likely worth under $950 as
Kelley Blue book does not go back to 1987.”
Obviously, this bare assertion r egarding the s tolen vehicle’s value does not prove
the vehicle was worth $950 or less. (See Sherow

, supra , 239 Cal.App.4t h at p. 880 [a
proper petition for resentencing could “at least” cont ain the petitioner’s testimony
regarding the stolen item].) Howe ver, a ltho ugh Lopez’s offer of proof regarding the
vehicle’s value was imperfect

, it was error for the trial court to reject the petition out of
hand by concluding that convictions pursuant to Vehicle Code section 10851 fall outside
the scope of Propositio n 47.

The trial court’s conclu sion in this regard conflicts with the plain language of

section 490. 2, as follows: “[O]btaining any property b y theft where the value of the
money, labor, real or personal property taken does not ex ceed nine hundred fifty dollars
($950) shall be considered pet ty theft and shall be punished as a misdemeanor

. . . . ”
(§ 490. 2, subd. (a) , italics added .) Even though Vehicle Code section 10851 is not
expressly referenced by Proposition 47, s ection 1170.18 or section 496 d, a vehicle is
undoubtedly personal property and thus falls within the ambit of section 490.2. If a
defendant takes a vehicle with a value under $950, he must be charged under

section 490.2 with a misdemeanor

. The trial court erred in concluding that Lo pez w as ineligible for resentencing without even considering his offer o f proof regarding the value

of the vehicle he took

.
We recognize that our analysis conflicts with that set forth in People v. Page
(2015) 241 Cal.App.4th 714 ( Page )

. In Page , the co urt determined that “ Proposition 47
left intact the language in Vehicle Code section 10851, subdivision (a), which makes a
violation of that statute punishable as either a felony or a misdemeanor. Based on the
statutory language alone, therefore, whether before or after Proposition 47, defendant5

could be convicted for a felony violation of Vehicle Code section 10851.” ( Id

. at p. 718.)

The Page court also rejected the argument that the phrase “ [ n ] otwithstanding [ Penal

Code ] S ection 487 or any other provisi on of law defining grand theft” as set forth in

section 490.2 , subdivision (a), was sufficient to encompass Vehicle Code section 10851
within its terms. Instead, the court found that “ Vehicle Code section 10851 does not
proscribe theft of either th e grand or petty variety, but rather th e taking or driving of a

vehicle ‘ with or without intent to steal. ’ ” ( Page

, supra , at p. 719.)
This interpretation fails to take into account the express and unambiguous
language of section 490.2, discussed above, which directs that any theft of personal
property not exceeding $950 in value be treated as a misdemeanor. Accordingly, we

decline to follow it. 4

We reverse and reman d the matter so that Lopez may attempt to perfect his offer
of proof regarding th e val ue of the stolen Acura Legend and the trial court can make a

determination as to the value of the ve hicle based on the evidence presented.

III. D ISPOSITION

The order denying the petition for resentencing is reversed. The matter is
remanded for proceedings co nsistent with this opinion.

4 A separate panel of the Fourth District Court of Appeal has also disagreed with the reasoning o f Page . ( People v. Gomez (Dec. 23, 2015, E062867) __ Cal.App.4th __ [2015 Cal.App. LEXIS 1152 ].) Gomez held that if a defendant takes a vehicle with the intent to permanently deprive the owner of the vehicle, and if the value of the vehicle is $950 or le ss, the offense constitutes a violation of s ection 490.2. The Third District Court of Appeal recently agreed with Page in People v. Haywood (Dec. 30, 2015, C078609) __ Cal.App.4th __ [ 2015 Cal.App. LEXIS 1168]. We disagree with Page and Haywood

, but
agre e with the reasoning of Gomez

.Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.