P. v. Lozano














Filed 3/23/17 P. v. Lozano 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

GABRIEL DAVID LOZANO,

Defendant and Appellant.

H042883
(Santa Clara County
Super. Ct. Nos. CC329178,
CC439826)
I. INTRODUCTION
In 2004, in case No. CC329178, defendant Gabriel David Lozano pleaded no contest to possession of a controlled substance while armed with a loaded firearm (Health & Saf. Code, § 11370.1), obliterating the identification of a firearm (former Pen. Code, § 12090),[1] and misdemeanor driving with a suspended license (Veh. Code, § 14601, subd. (a)). The trial court sentenced defendant to two years in prison.
Also in 2004, in case No. CC439826, defendant pleaded no contest to a felony violation of former Vehicle Code section 10851, subdivision (a)(hereafter Vehicle Code section 10851(a)), and misdemeanor driving with a suspended license (Veh. Code, § 14601, subd. (a)). The trial court sentenced defendant to two years in prison, with the sentence to run concurrent with his sentence in the controlled substance case (No. CC329178).
In 2015, after he had completed his sentences in both cases, defendant filed an application with the trial courtpursuant to section 1170.18, subdivision (f), which was enacted as part of Proposition 47, to have his felony controlled substance and Vehicle Code offenses redesignated as misdemeanors. The court denied the application as to both offenses.
On appeal, defendant does not raise any issue in the controlled substance case (No. CC329178). In the Vehicle Code case (No. CC439826), defendant contends thatthe trial court erred by denying his application to redesignate his conviction under Vehicle Code section 10851(a) as a misdemeanor.[2] For reasons that we will explain, we will affirm the order.
II. BACKGROUND
Relevant to this appeal, in case No. CC439826, defendant was charged by complaint in 2004 with a felony violation of former Vehicle Code section 10851(a). The complaint alleged that on or about January 13, 2004, defendant “did drive and take a vehicle, a[n] Acura Legend, belonging to [the victim], without the consent of the owner and with the intent to deprive the owner of title to and possession of the vehicle.” Defendant pleaded no contest to this count and to misdemeanor driving with a suspended license. The trial court sentenced him to two years in prison.
On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors instead of felonies or alternative felony misdemeanors. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308 (Shabazz); see § 1170.18, subd. (a).) Proposition 47 also added a new statute, section 490.2, which generally defines petty theft as the theft of property valued at $950 or less. (§ 490.2, subd. (a); Shabazz, supra, at p. 308.) In addition, Proposition 47 added section 1170.18, which permits a defendant who has completed his or her sentence for a felony conviction to have the conviction redesignated as a misdemeanor. Upon application by the defendant, the trial court must make the misdemeanor designation if the defendant meets the requisite criteria and has not suffered a prior conviction for a specified serious or violent felony or an offense requiring registration as a sex offender. (§ 1170.18, subds. (f), (g) & (i).)
In 2015, after having completed his sentence, defendant filed an application with the trial court seeking to have his felony conviction for theVehicle Code section 10851 violation redesignated as a misdemeanor.
By written order filed March 20, 2015, the trial court denied defendant’s application. The court explained that “only certain theft and simple drug possession charges are affected by the resentencing provisions” of section 1170.18, and that “Vehicle Code § 10851 is not among those offenses.”
Defendant filed a notice of appeal regarding the trial court’s order. Upon defendant’s motion, this court deemed the notice of appeal timely filed.
III. DISCUSSION
Defendant contends that the trial court erred in denying his application to redesignate his felony conviction for violating Vehicle Code section 10851(a) as a misdemeanor. He argues that such a conviction may be redesignated as misdemeanor petty theft under section 490.2, subdivision (a), which was enacted by Proposition 47, and that to construe Proposition 47 otherwise would violate his constitutional rights to equal protection. Defendant contends that the matter should be remanded to the trial court for various factual determinations, including a determination of the value of the car.
The Attorney General contends that a violation of Vehicle Code section 10851 is not an offense that may be redesignated as a misdemeanor under Proposition 47. The Attorney General contends that defendant has forfeited the equal protection claim by failing to raise it below, and that the claim also fails on the merits. Alternatively, the Attorney General argues that even if a Vehicle Code section 10851 offense may be redesignated as a misdemeanor, defendant failed to establish his eligibility for relief by showing that the value of the vehicle taken did not exceed $950.
Whether defendant’s Vehicle Code offense may be redesignated as a misdemeanor turns on the proper construction of Proposition 47. When interpreting an initiative such as Proposition 47, “we apply the same principles governing statutory construction. We first consider the initiative’s language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters’ intent and understanding of a ballot measure. [Citation.]” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
Regarding the language of Proposition 47, one of the criteria for redesignation of a felony conviction as a misdemeanor is that the defendant “would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense.” (§ 1170.18, subd. (f).) In this case, defendant was convicted of violating Vehicle Code section 10851(a).[3] Proposition 47 did not amend Vehicle Code section 10851. Both before and after the enactment of Proposition 47 in 2014, Vehicle Code section 10851(a) has provided that unlawfully driving or taking a vehicle is punishable as either a felony or a misdemeanor. Thus, a Vehicle Code section 10851(a) offense, when charged as a felony as in this case and as admitted by defendant’s no contest plea, is still a felony after Proposition 47. Defendant therefore does not satisfy one of the criteria for redesignation as a misdemeanor under Proposition 47. (§ 1170.18, subd. (f); People v. Johnston (2016) 247 Cal.App.4th 252, 256, review granted July 13, 2016, S235041.)
Defendant contends that the reference to “theft” in section 490.2, which was added by Proposition 47, applies to a felony Vehicle Code section 10851(a) conviction such that the conviction may be redesignated as a misdemeanor under section 490.2.
Before considering the specific language of section 490.2, which refers to theft, grand theft, and petty theft, we first consider the general relationship between these legal concepts. “Section 484, subdivision (a), defines the crime of theft: ‘Every person who shall feloniously steal, take, . . . or drive away the personal property of another . . . is guilty of theft.’ ” (People v. Ortega (1998) 19 Cal.4th 686, 693 (Ortega).) The crime of theft is divided into two degrees, grand theft and petty theft. (§ 486; Ortega, supra, at p. 696.) Section 487 and several other statutes define the forms of theft that constitute grand theft. (See People v. Cuellar (2008) 165 Cal.App.4th 833, 837; Ortega, supra, at p. 696.) Section 488 provides that “[t]heft in other cases is petty theft.”
“The distinctions between grand and petty theft according to the Penal Code are in the type of article stolen, whether the article was taken from the person of another and in the value thereof. [Citations.]” (Gomez v. Superior Court (1958) 50 Cal.2d 640, 645.) For example, section 487 defines grand theft to include the taking of personal property worth more than $950. (Id., subd. (a).) Section 487 also defines grand theft to include the taking of an automobile. (Id., subd. (d)(1).)
Section 490.2, which was added by Proposition 47, states: “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 . . . .” (§ 490.2, subd. (a).) Section 490.2 thus amends the definition of grand theft, as set forth in section 487 or any other provision of law, to make some thefts that would have previously been grand theft to now be petty theft.
Defendant was convicted of violating Vehicle Code section 10851(a). Vehicle Code section 10851 is not a “provision of law defining grand theft” (§ 490.2, subd. (a)). Further, the proscriptions in Vehicle Code section 10851(a) against driving or taking a vehicle are broader than the crime of theft of an automobile (§§ 484, 487, subd. (d)(1)). A theft is committed only if the defendant intends to “ ‘permanently deprive’ ” the victim of his or her property. (People v. Abilez (2007) 41 Cal.4th 472, 510.) In contrast, a defendant may violate Vehicle Code section 10851(a) by taking a vehicle with the intent to permanently deprive the owner of possession, or by driving it with the intent only to “ ‘temporarily deprive’ ” the owner of possession. (People v. Garza (2005) 35 Cal.4th 866, 876, italics added (Garza); see id. at p. 871.) In other words, Vehicle Code section 10851(a) “ ‘prohibits driving as separate and distinct from the act of taking.’ ” (Garza, supra, at p. 876.) Given that Vehicle Code section 10851(a)may be violated with or without a defendant committing theft, and given that Vehicle Code section 10851(a) does not “defin[e] grand theft” or petty theft (§ 490.2, subd. (a)), we are not persuaded that the enactment of section 490.2, which simply changed the distinction between a grand theft and a petty theft, operates along with section 1170.18 to require the redesignation of a felony Vehicle Code section 10851(a) offense as misdemeanor petty theft.
The ballot materials for Proposition 47 support our construction that the electorate intended certaingrand thefts to be redesignated as misdemeanor petty thefts, rather than providing for the redesignation of any crime that could have been charged as theft but was not so charged, such as some violations of Vehicle Code section 10851(a). The Legislative Analyst’s analysis of Proposition 47, which was printed in the ballot materials, states the following regarding Proposition 47: “This measure reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdmeanors. . . . Specifically, the measure reduces the penalties for the following crimes: [¶] [] Grand Theft. Under current law, theft of property worth $950 or less is often charged as petty theft, which is a misdemeanor or an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occur if the crime involves the theft of certain property (such as cars) . . . . This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically such crimes would no longer be charged as grand theft solely because of the type of property involved . . . .” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, some italics added (hereafter Guide).) Thus, the electorate must have understood and intended that the “[s]pecifically” listed crime of grand theft (ibid.), including grand theft auto (§ 487, subd. (d)(1)), would, upon passage of Proposition 47, be charged, sentenced, and/or redesignated as misdemeanor petty theft if the property was worth less than $950. As we have explained, Vehicle Code section 10851(a) is not a provision of law defining grand theft. Moreover, nothing in the ballot materials suggests that Proposition 47 was intended to redesignate other crimes that could have been charged as grand theft auto, but were not so charged, such as some violations of Vehicle Code section 10851(a).
Defendant observes that Proposition 47 provides for a “liberal[]” construction to effectuate its purposes, which include “[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.” (Guide, supra, text of Prop. 47, §§ 18, 3, pp. 74, 70.) However, in view of the text of section 490.2 and Vehicle Code section 10851(a), and the ballot materials for Proposition 47, we do not believe that a liberal construction of Proposition 47 can support the conclusion that felony violations of Vehicle Code section 10851(a) may be redesignated as misdemeanor petty thefts under section 490.2. (See Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 298 [“the rule of liberal construction . . . should not be used to defeat the overall statutory framework and fundamental rules of statutory construction”].)
Defendant next contends that a violation of Vehicle Code section 10851(a) is a lesser included offense of grand theft auto (§ 487, subd. (d)(1)). He argues it is “unreasonable to assume” that the electorate intended to allow grand theft to be redesignated as misdemeanor petty theft under section 490.2 if the value of the property is less than $950, but not to allow the redesignation of a Vehicle Code section 10851(a) offense where the value of the vehicle is also less than $950.
As stated, Vehicle Code section 10851(a) proscribes a broader range of conduct than just the theft of a vehicle. Assuming a violation of Vehicle Code section 10851(a) is a lesser included offense of grand theft auto, a lesser included offense is not necessarily less serious than the greater offense.(SeePeople v. Wilkinson (2004) 33 Cal.4th821, 839 (Wilkinson).) For example, there may be a case in which a defendant intended only to temporarily deprive the victim of possession of the vehicle, but the victim was nevertheless affected to a greater degree, such as being unable to go to work and losing a job, than another victim whose spare vehicle was taken by a defendant who had the intent to permanently deprive the victim of the vehicle. (See People v. Sauceda (2016) 3 Cal.App.5th 635, 651, review granted Nov. 30, 2016, S237975 [explaining that more severe punishment for a Vehicle Code § 10851 offense may “rationally be explained by a desire to seriously punish conduct which may affect vulnerable citizens, but which may not qualify as theft, such as temporarily taking a vehicle to prevent a victim from fleeing”].)
Even assuming that a conviction under Vehicle Code section 10851(a) falls within the purview of section 490.2 based on a showing of the circumstances underlying the conviction, defendant in this case failed to make a showing that he was entitled to relief. Defendant had the burden to demonstrate his eligibility for redesignation as a misdemeanor by making a prima facie showing that the value of the vehicle did not exceed $950. (See Pen. Code, § 1170.18, subd. (f); People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins).) There is nothing in defendant’s application for redesignation or in the record regarding the value of the vehicle. (See Perkins, supra, at p. 139 [trial court judgment may be affirmed on any correct basis presented by the record regardless of whether the trial court relied on it].)
Lastly, defendant argues that treating those convicted of a violation of Vehicle Code section 10851(a) more harshly than grand theft auto (§ 487, subd. (d)(1)), by allowing the latter group but not the former group to seek redesignation as a misdemeanant, would violate federal and state equal protection principles. Assuming, without deciding, that defendant may raise this claim for the first time on appeal, we determine that he fails to establish an equal protection violation.
“ ‘[T]o succeed on [a] claim under the equal protection clause, [a defendant] first must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] ‘In considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications.’ ” (Wilkinson, supra, 33 Cal.4th at p. 836.) “A defendant . . . ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ [Citations.]” (Id. at p. 838.) Therefore, the rational basis test is applicable to an equal protection challenge involving an alleged sentencing disparity. (Ibid.)
Even assuming defendant can satisfy the similarly-situated requirement, his equal protection claim fails. In Wilkinson, the defendant argued that his conviction for battery on a custodial officer violated equal protection, because the statutory scheme authorized felony punishment for the “ ‘lesser’ ” offense of battery on a custodial officer without injury, while the “ ‘greater’ ” offense of battery on a custodial officer with injury was a wobbler offense that allowed misdemeanor punishment. (Wilkinson, supra, 33 Cal.4th at p. 832.) In applying the rational basis test, the California Supreme Court rejected the defendant’s challenge, explaining that “neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other, violates equal protection principles. [Citation.]” (Id. at p. 838.)
Further, as we have explained, Vehicle Code section 10851(a) proscribes a broader range of conduct than grand theft auto and, depending on the facts of the offense, a violation of Vehicle Code section 10851(a) is not necessarily a less serious offense than grand theft auto. A Vehicle Code section 10851(a) offense may therefore merit greater punishment than grand theft auto. (See Wilkinson, supra, 33 Cal.4th at p. 839.) In this case, defendant fails to establish a violation of his equal protection rights.
In sum, we determine that defendant’s felony conviction for violating Vehicle Code section 10851(a) is not eligible for redesignation as a misdemeanor under Proposition 47. (§§ 1170.18, subd. (f), 490.2, subd. (a).) Accordingly, the trial court properly denied defendant’s application for redesignation. (See § 1170.18, subds. (f) & (g).)
IV. DISPOSITION
The March 20, 2015 order is affirmed.




___________________________________________
BAMATTRE-MANOUKIAN, J.





WE CONCUR:




__________________________
ELIA, ACTING P.J.







__________________________
MIHARA, J.










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People v. Lozano
H042883

[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2]The issue of whether a felony conviction under Vehicle Code section 10851(a) may be redesignated as a misdemeanor under Proposition 47 is currently before the California Supreme Court. (See, e.g., 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. Ortiz (2016) 243 Cal.App.4th 854, review granted Mar. 16, 2016, S232344; People v. Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016, S234150; People v. Johnston (2016) 247 Cal.App.4th 252, review granted July 13, 2016, S235041; People v. Sauceda (2016) 3 Cal.App.5th 635, review granted Nov. 30, 2016, S237975.)
[3] At the time of defendant’s offense in 2004, Vehicle Code section 10851(a) stated: “Any 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 . . . is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.” (Stats.1995, ch. 101, § 4, operative Jan. 1, 1997.)
In 2011, Vehicle Code section 10851(a) was amended to provide that a felony violation is punishable “pursuant to subdivision (h) of Section 1170 of the Penal Code” instead of “in the state prison.” (Stats.2011, ch. 15, § 606, eff. Apr. 4, 2011, operative Oct. 1, 2011.)