Filed 5/26/17 P. v. Hernandez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN ROBERT HERNANDEZ,

Defendant and Appellant.
D071063



(Super. Ct. No. FVI902779)

APPEAL from a judgment of the Superior Court of San Bernardino County, John P. Vander Feer, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Justin Robert Hernandez appeals from a postjudgment order denying his petition under Penal Code section 1170.18, subdivision (f), enacted by the voters as part of the Safe Neighborhoods and Schools Act (Proposition 47). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73–74.) He contends the court erred in finding section 490.2, subdivision (a) (hereafter § 490.2(a)), also enacted by the voters as part of Proposition 47 (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 8, p. 72), does not require the court to designate his felony conviction for unlawfully taking or driving a vehicle (Veh. Code § 10851, subd. (a), hereafter Veh. Code, § 10851(a)) as a misdemeanor. We conclude section 490.2(a) does not apply to convictions under Vehicle Code section 10851(a) and affirm the order.
II
BACKGROUND
Hernandez pleaded guilty to unlawfully taking and driving a vehicle. He also admitted having a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12) and a prior prison commitment conviction (§ 667.5, subd. (b)). The court sentenced him to three years and eight months in prison.
After he completed his sentence, he petitioned to have his conviction designated a misdemeanor under section 490.2(a). The court denied the petition, finding a conviction for violating Vehicle Code section 10851(a) was not eligible for designation as a misdemeanor under section 490.2(a).
III
DISCUSSION
Section 1170.18, subdivision (f), permits a person who has completed a sentence for a felony conviction that would have been a misdemeanor under Proposition 47 to apply to have the conviction designated a misdemeanor. Vehicle Code section 10851(a) is not explicitly addressed in Proposition 47. Nonetheless, Hernandez contends his conviction under Vehicle Code section 10851(a) would have been a misdemeanor under Proposition 47 because it is a lesser included offense of grand theft auto (§ 487, subd. (d)(1)), which is a misdemeanor under section 490.2(a). As this contention involves the interpretation of a statute, our review is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114; People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 445.)
With exceptions not relevant here, section 490.2(a) provides: "Notwithstanding Section 487 [defining some conduct constituting grand theft] 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." (Italics added.)
Essentially, Hernandez interprets section 490.2(a) to apply to any theft of any property valued at $950 or less. However, this interpretation ignores the opening clause, "[n]otwithstanding Section 487 or any other provision of law defining grand theft," which limits the application of section 490.2(a) to statutes defining grand theft. Vehicle Code section 10851(a) is not a statute intended to define grand theft. Rather, "[Vehicle Code] section 10851(a) 'proscribes a wide range of conduct.' [Citation.] A person can violate [Vehicle Code] section 10851(a) 'either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding).' " (People v. Garza (2005) 35 Cal.4th 866, 876.) Thus, section 490.2(a) does not apply to Vehicle Code section 10851(a).
The legislative history of Proposition 47 does not compel a different conclusion. In explaining Proposition 47's penalty reduction provisions, the Legislative Analyst's analysis stated Proposition 47 reduced "certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors." (Voter Information Guide, Gen. Elec., supra, analysis of Prop. 47 by Legis. Analyst, p. 35.) The analysis then specifically identified the affected crimes as: grand theft, shoplifting, receiving stolen property, writing bad checks, check forgery, and drug possession. (Ibid.) The analysis did not identify unlawful taking or driving a vehicle as an affected crime. Accordingly, the legislative history of Proposition 47 does not support Hernandez's position. (See People v. Sauceda (2016) 3 Cal.App.5th 635, 648, review granted Nov. 30, 2016, S237975; People v. Johnston (2016) 247 Cal.App.4th 252, 258, review granted July 13, 2016, S235041; but see, People v. Van Orden (2017) 9 Cal.App.5th 1277, 1283 ["Proposition 47 applies to [Vehicle Code] section 10851 theft convictions when the value of the vehicle is $950 or less, but not convictions based on driving, no matter the value"], petn. for review pending, petn. for review filed Apr. 28, 2017, S241574.)
IV
DISPOSITION
The judgment is affirmed.


McCONNELL, P. J.

WE CONCUR:



NARES, J.



O'ROURKE, J.