P. v. Ramirez

Filed 12/16/15 P. v. Eggler CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL EGGLER,
Defendant and Appellant.
B262757
(Los Angeles County
Super. Ct. No. YA090390)
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Mark S. Arnold, Judge. Affirmed.
Mae G. Alberto, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Robert
M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Defendant and appellant Michael Eggler (defendant) was convicted of felony
theft with a prior theft (Pen. Code section 666.51). On appeal, defendant contends that
the trial court erred in denying his motion to recall his sentence to have his conviction
reduced to a misdemeanor pursuant to section 1170.18. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
In June 2014, defendant admitted having three prior convictions for violations of
Vehicle Code section 10851, subdivision (a); pleaded no contest to felony theft with a
prior theft, in violation of section 666.5;3 and was sentenced to four years in state prison.
The trial court ordered defendant to make restitution of $432.40 to the victim, plus
interest from the date of loss. As of June 2014, defendant had 28 prior convictions—13
felonies and 14 misdemeanors.
In November 2014, defendant filed an “application/petition for resentencing,”
seeking to have his felony conviction reduced to a misdemeanor pursuant to section
1170.18. The trial court denied defendant’s “application/petition” on the ground that
section 666.5 “is not covered under Prop[osition] 47.”
In January 2015, defendant filed a “motion to convert felony conviction to
misdemeanor pursuant to [section] 1170.18 and the equal protection clause.” The trial
court denied defendant’s motion because a conviction for violation of section 666.5 “does
1 All statutory citations are to the Penal Code unless otherwise noted.
2 Because defendant’s only claim on appeal is that his felony conviction must be
reduced to a misdemeanor pursuant to Proposition 47, we do not include a statement of
facts regarding the count for which he was convicted.
3 The District Attorney of Los Angeles County also charged defendant with
unlawful driving or taking of vehicle without owner’s consent in violation of Vehicle
Code section 10851, subdivision (a), but that count was dismissed.

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not qualify for[a] section 1170.18 reduction to a misdemeanor,” and defendant filed a
timely notice of appeal.
DISCUSSION
A. Standard of Review
“‘Issues of statutory interpretation are questions of law, subject to de novo
review.’ [Citation.]” (People v. Harbison (2014) 230 Cal.App.4th 975, 980.)
B. Applicable Law
On November 4, 2014, California voters enacted Proposition 47, “The Safe
Neighborhoods and Schools Act,” to maximize sentencing alternatives for nonserious,
nonviolent crimes. (Couzens, Bigelow & Prickett, Sentencing California Crimes (The
Rutter Group 2015) § 25.1, pp. 25-1 to 25-2.) Proposition 47 created section 1170.18,
which section provides, “(a) A person currently serving a sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section (‘this act’) had this act been in effect at
the time of the offense may petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.”
C. Analysis
Defendant contends his felony conviction for violating section 666.5 must be
reduced to a misdemeanor pursuant to Proposition 47. We disagree.
Defendant was convicted of violating section 666.5. Section 666.5, subdivision
(a) provides in part that, “Every person who, having been previously convicted of a

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felony violation of Section 10851 of the Vehicle Code[4] . . . is subsequently convicted of
[that] offense[] shall be punished by imprisonment pursuant to subdivision (h) of Section
1170 for two, three, or four years, or a fine of ten thousand dollars ($10,000), or both the
fine and the imprisonment.” “The Legislature’s obvious purpose in enacting section
666.5 was to increase the punishment for repeat offenders.” (People v. Carter (1996) 48
Cal.App.4th 1536, 1541.) Section 666.5 is not an offense enumerated by section 1170.18
requiring the conviction be reduced pursuant to section 1170.18.
Proposition 47 created section 490.2, and the violation of that statute is an offense
enumerated by section 1170.18. Section 490.2 provides in relevant part, “[O]btaining
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 . . . .” Defendant argues that in connection with his
conviction for violating section 666.5, he was ordered to make restitution in an amount
less than $950. Defendant reasons therefore his conviction for violating section 666.5 is
now a misdemeanor under section 490.2, and that conviction entitles him to have his
felony conviction reduced to a misdemeanor.
We do not have to reach the issue of whether a conviction for violating section
666.5 is the type of theft offense that under section 490.2 compels the section 666.5
conviction to be reduced to a misdemeanor. The record does not disclose the nature of
the victim’s loss represented by the amount of restitution ($432.40, plus interest),
including whether that restitution amount represented “the value of the . . . personal
property taken.” (§ 490.2) Defendant was ordered to make restitution to the victim
4 Vehicle Code section 10851 provides in part: “(a) 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, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, 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 pursuant to
subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.”

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pursuant to section 1202.4, subdivision (f), which section provides in part: “[I]n every
case in which a victim has suffered economic loss as a result of the defendant’s conduct,
the court shall require that the defendant make restitution to the victim or victims in an
amount established by court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court.” Section 1202.4, subdivision (f)(3)(A)
provides that amount of restitution shall include the “[f]ull or partial payment for the
value of stolen or damaged property. The value of stolen or damaged property shall be
the replacement cost of like property, or the actual cost of repairing the property when
repair is possible.” There is no indication in the record that the victim was permanently
deprived of his vehicle. The record does not disclose that defendant was ordered to make
restitution for “the replacement cost of like property.” Defendant may have been ordered
to make restitution in an amount that represented, for example, the value of damage to the
property. Defendant has not established that he is eligible to have his felony conviction
for violating section 666.5 reduced to a misdemeanor under section 1170.18.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
BAKER, J.

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