Filed 5/2/17 P. v. Chavez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIO CESAR CHAVEZ,
Defendant and Appellant.
F072191
(Super. Ct. No. BF114766A)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-

* Before Poochigian, Acting P.J., Detjen, J., and Franson, J.
2
INTRODUCTION
Pursuant to a plea agreement, appellant Julio Chavez pled no contest to one count
of violating Vehicle Code section 10851, subdivision (a), unlawful driving of a vehicle,
in 2006. On June 11, 2015, Chavez filed a petition pursuant to Penal Code1
section
1170.18, seeking to have his felony sentence recalled and resentenced as a misdemeanor.
The superior court denied the petition on the basis a Vehicle Code section 10851
conviction was not eligible for resentencing. Chavez appealed and appellate counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 24, 2006, Chavez was charged with violating Vehicle Code section
10851, subdivision (a), a felony; section 496d, a felony; and three misdemeanor offenses.
Pursuant to a stipulated plea agreement that encompassed two other outstanding cases,
Chavez pled no contest to violating Vehicle Code section 10851, subdivision (a). The
trial court imposed a felony sentence of two years for the Vehicle Code section 10851,
subdivision (a), offense; a total term of seven years was imposed for all cases
encompassed by the plea agreement. Chavez was ordered to pay restitution in an amount
to be determined.
The probation report prepared for the unlawful driving of a vehicle offense noted
that officers stopped Chavez while Chavez was driving the stolen vehicle. On August 21,
2006, a restitution order was entered ordering Chavez to pay restitution of $1,000 to the
vehicle owner.
On June 11, 2015, Chavez filed a petition for resentencing pursuant to section
1170.18, seeking to have his Vehicle Code section 10851 sentence recalled and
resentenced as a misdemeanor. The petition stated that Chavez was convicted in 2006 of

1 All statutory references are to the Penal Code unless otherwise specified.
3
a violation of “VC 10851(a)” and claimed this offense now was reclassified as a
misdemeanor. No facts about the offense were alleged, including a value for the vehicle.
Chavez waived appearance for resentencing.
The People filed a response, stating that a “VC 10851” offense was not eligible for
resentencing under section 1170.18. On June 23, 2015, the superior court entered an
order denying the petition on the grounds a “VC 10851(a)” offense was not eligible for
resentencing.
On August 20, 2015, Chavez filed an appeal of the denial of his petition for
resentencing. Appellate counsel was appointed on November 12, 2015.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436
on June 14, 2016. That same day, this court issued its letter to Chavez inviting him to
submit a supplemental brief. No supplemental brief was filed.
Chavez maintained in his petition that a violation of Vehicle Code section 10851
is eligible for resentencing under section 1170.18. We previously addressed this issue in
People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), review granted November 30,
2016, S237975.2
In Sauceda, we held that Vehicle Code section 10851 is not affected by
the changes enacted through Proposition 47 and that no equal protection violation arises
from the different potential punishments for, or the failure to grant retroactive sentencing
relief to, those convicted under Vehicle Code section 10851. (Sauceda, supra, at
pp. 644-650.) We see no reason to depart from those rulings here. Because Vehicle
Code section 10851 is not by its nature a theft offense, its exclusion from Proposition 47

2 Effective July 1, 2016, California Rules of Court, rule 8.1115(e)(1) was amended
to provide that a published opinion of a Court of Appeal has no binding or precedential
effect once the matter is pending review in the Supreme Court and “may be cited for
potentially persuasive value only.”
4
confirms there was no intent to modify the punishment scheme separately set forth for the
crime of unlawfully driving or taking a vehicle.
Furthermore, the initial burden of proof is upon Chavez to demonstrate he is
eligible for relief. (People v. Johnson (2016) 1 Cal.App.5th 953, 961, 964 [petition
properly denied where defendant failed to satisfy burden of showing value of property
was less than $950]; People v. Sherow (2015) 239 Cal.App.4th 875, 880 [“We think it is
entirely appropriate to allocate the initial burden of proof to the petitioner to establish the
facts upon which his or her eligibility is based.”]; People v. Rivas-Colon (2015)
241 Cal.App.4th, 444, 449 [burden on petitioner to show value of stolen property was
less than $950].)
In this case, the record shows that Chavez took and drove the vehicle and was
ordered to pay restitution of $1,000 to the vehicle owner. Even if we were to assume a
Vehicle Code section 10851, subdivision (a) offense was otherwise eligible for
resentencing, the value of the item taken, as determined by the order for restitution,
exceeded $950 in value. Consequently, Chavez would have been ineligible for
resentencing solely based upon the value of the item taken. (People v. Johnson, supra, 1
Cal.App.5th at p. 961; People v. Sherow, supra, 239 Cal.App.4th at p. 880; People v.
Rivas-Colon, supra, 241 Cal.App.4th at p. 449.)
After an independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The June 23, 2015, order denying the section 1170.18 petition is affirmed.