P. v. Gomez

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Filed 3/15/16 P. v. Gomez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL GOMEZ, JR.,
Defendant and Appellant.
E062867
(Super.Ct.No. FSB1402290)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sheila Quinlan for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for
Plaintiff and Respondent.

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Defendant Gabriel Gomez, Jr., pleaded guilty to unlawfully driving or taking a
vehicle in violation of Vehicle Code section 10851, subdivision (a). Thereafter,
Proposition 47 went into effect. Proposition 47 allows a defendant convicted of one of
several theft-related felonies to petition to have that conviction treated as a misdemeanor,
provided the value of the property involved did not exceed $950. Defendant filed a
petition pursuant to Proposition 47, but the trial court denied it on the ground that
Proposition 47 does not apply to a conviction for unlawfully driving or taking a vehicle.
Defendant appeals, arguing that Proposition 47 does apply to a conviction for
unlawfully driving or taking a vehicle, or, alternatively, it must be deemed to apply as a
matter of equal protection. We do not reach these arguments, however, as we conclude
that the trial court was required to deny the petition in any event because defendant did
not show that the value of the property involved was $950 or less. Hence, we will affirm.
I
PROCEDURAL BACKGROUND
On July 9, 2014, defendant pleaded guilty to unlawful driving or taking of a motor
vehicle. (Veh. Code, § 10851, subd. (a).) According to the complaint, the subject vehicle
was a 2002 Chevrolet Suburban that belonged to Rotolo Chevrolet. Pursuant to the plea
bargain, defendant was sentenced to two years in prison.
On November 5, 2014, Proposition 47 went into effect. (See People v. Esparza
(2015) 242 Cal.App.4th 726, 735.)

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On November 14, 2014, defendant, in propria persona, filed a petition to have the
conviction redesignated as a misdemeanor pursuant to Penal Code section 1170.18
(which had been enacted by Proposition 47). At a hearing on the petition, at which
defendant was represented by appointed counsel, the trial court denied the petition. It
ruled that “defendant’s convicted charge does not qualify for relief under Prop. 47 or
Penal Code section 1170.18 . . . .”
II
THE TRIAL COURT HAD TO DENY THE PETITION
BECAUSE DEFENDANT DID NOT SHOW THE VALUE OF THE PROPERTY
Defendant contends that the trial court erred by ruling that Penal Code section
1170.18 does not apply to a conviction under Vehicle Code section 10851, subdivision
(a). Alternatively, he also contends that Penal Code section 1170.18 must be deemed to
apply to a conviction under Vehicle Code section 10851, subdivision (a) as a matter of
equal protection.
In response, the People contend (among other things) that, even assuming Penal
Code section 1170.18 does apply to a conviction under Vehicle Code section 10851,
subdivision (a), defendant did not show that the value of the vehicle was $950 or less so
as to make him eligible for resentencing. We begin with this contention, because we find
it dispositive.
In general, Proposition 47 reduced certain theft-related offenses — provided they
involve property worth $950 or less — as well as certain possessory drug offenses from

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felonies (or wobblers) to misdemeanors, unless the defendant has a disqualifying prior
conviction. (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and
Schools Act” (Feb. 2016 rev. ed.) pp. 24-28 (Couzens & Bigelow), available at
<http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of Mar. 14, 2016.)
Proposition 47 also allowed persons previously convicted of one of the specified
offenses as a felony to petition to reduce the conviction to a misdemeanor. Specifically,
it enacted Penal Code section 1170.18, which, as relevant here, 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.
“(b) Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to 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, those sections have been amended or added by this act, unless the court, in its

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discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”
“The statute itself is silent as to who has the burden of establishing whether a
petitioner is eligible for resentencing. However, Evidence Code section 500 provides,
‘[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief or defense that he is
asserting.’ Because defendant is the petitioner seeking relief, and because Proposition 47
does not provide otherwise, ‘a petitioner for resentencing under Proposition 47 must
establish his or her eligibility for such resentencing.’ [Citations.] In a successful
petition, the offender must set out a case for eligibility, stating and in some cases showing
the offense of conviction has been reclassified as a misdemeanor and, where the offense
of conviction is a theft crime reclassified based on the value of stolen property, showing
the value of the property did not exceed $950. [Citations.] The defendant must attach
information or evidence necessary to enable the court to determine eligibility.
[Citation.]” (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)
Defendant did not meet his burden in this case. He did allege in his petition that
he “was charged with theft of property under $950.” However, he did not allege that the
property was actually worth $950 or less, nor did he allege any facts that would support
such a claim.1 The petition provided no information whatsoever about the nature and
1 Defendant contends that the relevant value should be based on the
compensation necessary to make the victim whole, rather than on market value.
Inasmuch as he did not allege either amount, we need not address this contention.

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value of the stolen property to aid the superior court in determining whether defendant is
eligible for resentencing. As a result, defendant did not provide the superior court with
information that would allow it to “determine whether the petitioner satisfies the criteria
in subdivision (a).” (Pen. Code, § 1170.18, subd. (b).) We conclude that defendant did
not meet his burden of alleging a prima facie case of eligibility for resentencing.
“Our conclusion that defendant must provide some evidence of eligibility when he
files the petition is supported by the language and structure of the statute. Section
1170.18, subdivision (a) permits offenders currently serving sentences for reclassified
offenses to ‘petition for a recall of sentence’ and ‘request resentencing.’ ‘The statute
does not expressly require the trial court to hold a hearing before considering the
eligibility criteria, nor is there a reference to the taking of “evidence” or other proceeding
that would compel involvement by the parties. The statute simply states: “Upon
receiving a petition for recall of sentence under this section, the court shall determine
whether the petitioner satisfies the [eligibility] criteria.” [Citation.]’ [Citation.] Thus,
the statute appears to assume most petitions can be resolved based on the filings. We
read the statute to fairly imply that in the normal case the superior court will rule on the
basis of the petition and any supporting documentation.” (People v. Perkins, supra, 244
Cal.App.4th at p. 137.)
Thus, “[t]he superior court ‘will be able to summarily deny relief based on any
petition that is facially deficient. Resentencing may be denied based solely on the fact of
a prior conviction of a designated “super strike” or any offense requiring registration as a

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sex offender under section 290(c).’ [Citation.] In many cases, a petition will be deficient
because the offender seeks resentencing for a crime that has not been reclassified as a
misdemeanor. [Citation.] In other cases, the superior court may be able to determine
whether a petitioner is eligible for resentencing simply by consulting the record of
conviction or evidence submitted by the parties.” (People v. Perkins, supra, 244
Cal.App.4th at p. 138.)
We recognize that the trial court denied the petition, not because the petition failed
to establish the value of the property, but because the court deemed Proposition 47
inapplicable to a conviction under Vehicle Code section 10851, subdivision (a).
Nevertheless, we may affirm its ruling on the former ground. “[T]he task of an appellate
court is to ‘review the correctness of the challenged ruling, not of the analysis used to
reach it.’ [Citation.] ‘“‘If right upon any theory of the law applicable to the case, it must
be sustained regardless of the considerations which may have moved the trial court to its
conclusion.’ [Citation.]”’ [Citation.]” (People v. Hughes (2012) 202 Cal.App.4th 1473,
1481.)
Defendant has not asked us to decide whether he could file a second (or an
amended) petition. Even had he done so, we would exercise our discretion to decline the
request as premature. (See People v. Swain (1996) 12 Cal.4th 593, 610 [“the question of
former jeopardy, or any other question regarding further proceedings, is premature unless
and until the People . . . seek to retry defendants . . . .”].)

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III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
I concur:
CODRINGTON
J.

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MILLER, J., Concurring.
I concur in the result. However, unlike the majority, I believe that this
court should address whether Vehicle Code section 10851 could qualify as a
misdemeanor under Proposition 47. (Maj. Opn., ante, at 2, 6-8.) I conclude that
under a properly plead petition, a felony conviction of Vehicle Code section 10851
could qualify for resentencing as a misdemeanor under Proposition 47.
Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal
Code section 1170.18, provides in pertinent part, “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.” Under Penal Code section 1170.18, subdivision (b), the trial court first
determines whether the petition has presented a prima facie case for relief under
Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria
in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,

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within its discretion, determines the petitioner would pose an unreasonable risk to
public safety. (Pen. Code, § 1170.18, subd. (b).)
Vehicle Code section 10851 is not listed in Penal Code section 1170.18,
and the issue of whether a defendant is eligible for resentencing for a violation of
that section is currently under review in the California Supreme Court in People v.
Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016, S230793.
Section 490.2 was added to the Penal Code. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1091.) Penal Code section 490.2 provides in pertinent part,
“Notwithstanding [Penal Code s]ection 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 . . . .”
(Italics added.)
Penal Code section 1170.18 clearly states that a defendant must show he
was convicted of a felony but would have been convicted of a misdemeanor if
Proposition 47 had been in effect at the time of the offense. For an offense under
section 490.2, which was added to the Penal Code, defendant had to allege facts in
the petition that he would have been guilty of a misdemeanor violation of Penal
Code section 490.2 rather than the felony conviction. Vehicle Code section 10851
can be violated by the taking of a vehicle with the intent to permanently deprive
the owner of the vehicle. As the California Supreme has held, “Vehicle Code

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section 10851 . . . defines the crime of unlawful driving or taking of a vehicle.
Unlawfully taking a vehicle with the intent to permanently deprive the owner of
possession is a form of theft, and the taking may be accomplished by driving the
vehicle away. For this reason, a defendant convicted under [Vehicle Code] section
10851[, subdivision ](a) of unlawfully taking a vehicle with the intent to
permanently deprive the owner of possession has suffered a theft conviction . . . .”
(People v. Garza (2005) 35 Cal.4th 866, 871.)
This conclusion is also supported by the analysis of the Legislative Analyst
for Proposition 47. The following analysis was made: “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) or if the
offender has previously committed certain theft-related crimes. 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 or because the defendant had previously
committed certain theft-related crimes.” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014), p. 35, italics added.)
Based on the foregoing, assuming that a defendant could establish in a
Penal Code section 1170.18 petition that he took a vehicle valued under $950,

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with the intent to permanently deprive the owner of possession, such violation
could constitute a violation of Penal Code section 490.2. As such, the trial court
erred by ruling that all violations of Vehicle Code section 10851 do not qualify
under Proposition 47.
However, I agree with the majority; based on the petition filed in the trial
court, defendant did not meet his burden of establishing that the vehicle he took
was valued under $950 or that he committed the vehicle theft with the intent to
permanently deprive the owner of the vehicle. As such, defendant failed to meet
his burden of establishing that his conviction under Vehicle Code section 10851
should be reduced to a misdemeanor. Defendant’s petition was properly denied.
MILLER
J.

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