P. v. Jurado

Filed 5/26/17 P. v. Jurado CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD JURADO,
Defendant and Appellant.
B271171
(Los Angeles County
Super. Ct. No. KA031959)
APPEAL from an order of the Superior Court of
Los Angeles County. Daniel Lopez, Judge. Affirmed.
Elizabeth K. Horowitz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Susan Sullivan Pithey and
Heather B. Arambarri, Deputy Attorneys General, for Plaintiff
and Respondent.

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Defendant and appellant Richard Jurado (defendant) appeals
from an order denying his petition for resentencing under
Proposition 47, the Safe Neighborhood and Schools Act
(Proposition 47 or the initiative), asking that his felony conviction
under Vehicle Code section 10851, subdivision (a) be reduced to a
misdemeanor. We affirm the trial court’s order.
BACKGROUND
A jury convicted defendant in 1996 of unlawfully driving or
taking a car, in violation of Vehicle Code section 10851,
subdivision (a). The jury also found that defendant had suffered
prior “strike” convictions for first degree burglary (Pen. Code,
§ 459)1, kidnapping (§ 207), and robbery (§ 211) within the
meaning of the “Three Strikes” Law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and that he had served two prior prison
terms (§ 667.5, subd. (b)). The trial court sentenced defendant to
a term of 25 years to life, plus a one-year enhancement for one
prior prison term.
In December 2012, defendant filed a petition for recall of
his sentence pursuant to Proposition 36 and section 1170.126.2
On April 6, 2016, the trial court granted the petition, finding that
resentencing defendant would not pose an unreasonable risk of
danger to public safety. Defendant was resentenced to seven
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Proposition 36 enacted section 1170.126, which established
a procedure by which a defendant serving an indeterminate life
sentence as a third strike offender for a nonserious or nonviolent
felony which was a strike under the earlier version of the Three
Strikes law, may file a petition for recall of sentence and
resentencing as a second strike offender. (Teal v. Superior Court
(2014) 60 Cal.4th 595, 596-597.)

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years and awarded 7,350 days of custody credit. He was released
and placed on post-release community supervision.
On September 22, 2015, while defendant’s Proposition 36
petition was pending, defendant filed a petition for resentencing
pursuant to Proposition 47, seeking to have his conviction under
Vehicle Code section 10851, subdivision (a) reduced to a
misdemeanor. The trial court denied the petition on September
24, 2015. Defendant filed a second petition pursuant to
Proposition 47 and section 1170.18 on October 5, 2015. The trial
court again denied the petition, finding that Vehicle Code section
10851 offenses were not eligible for reduction under Proposition
47.
Defendant failed to appeal from the trial court’s September
24, 2015 order denying his petition for resentencing; however, he
requested and was granted relief from default for failing to file a
timely notice of appeal. The instant appeal followed.
DISCUSSION
In November 2014, California voters approved Proposition
47, which reduced certain drug and theft offenses from felonies to
misdemeanors. (§ 1170.18, subd. (a).) Proposition 47 added
section 1170.18, which allows a person currently serving a felony
sentence “who would have been guilty of a misdemeanor” if
Proposition 47 had been in effect at the time of the offense, to
petition the court for resentencing “in accordance with” certain
specified statutes that “have been amended or added by this act”
which provide for different, lesser punishment than applied
before Proposition 47. (§ 1170.18, subd. (a).)3
3 Section 1170.18, subdivision (a) provides: “A person who,
on November 5, 2014, was 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

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Section 490.2 is one of the specific statutes amended or
added by Proposition 47. Section 490.2 provides:
“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).)
Defendant contends his offense is eligible for resentencing
under Proposition 47 if he can establish that it qualifies as petty
theft under section 490.2, i.e., that he committed theft of a vehicle
valued at $950 or less. Defendant argues that his position is
supported by the language of section 490.2, which he claims
broadly covers thefts of all property with a value that does not
exceed $950. Defendant further contends the California Supreme
Court has held that “a defendant convicted under [Vehicle Code]
section 10851(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 (Garza).)
Defendant further claims his interpretation is consistent
with the purpose and intent of Proposition 47 “to ensure that
prison spending is focused on violent and serious offenses, to
maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and
support programs in K-12 schools, victim services, and mental
health and drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4,
2014), text of Prop. 47, p. 70.) Defendant adds that his position is
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.”

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supported by the express language of Proposition 47, which
requires a liberal construction of its provisions. (Id. at p. 74 [this
act shall be liberally construed to effectuate its purposes].)
The issue as framed by defendant -- whether felony
violations of Vehicle Code section 10851 are eligible for
resentencing under Proposition 47 -- is currently pending before
the California Supreme Court. (See People v. Ortiz (2016) 243
Cal.App.4th 854, review granted Mar. 16, 2016, S232344; People
v. Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9,
2016, S232250; People v. Page (2015) 241 Cal.App.4th 714, review
granted Jan. 27, 2016, S230793.) Absent further guidance from
the Supreme Court, and for reasons we discuss, we find
defendant’s arguments to be unpersuasive and hold that his
conviction for violation of Vehicle Code section 10851 is ineligible
for resentencing under Penal Code section 1170.18.
As discussed, section 1170.18 allows an eligible person
“who would have been guilty of a misdemeanor” had Proposition
47 been in effect at the time of the offense, to petition for
resentencing in accordance with certain enumerated statutes
that were amended or added by Proposition 47. (§ 1170.18, subd.
(a).) It is uncertain whether defendant would have been guilty of
a misdemeanor if Proposition 47 had been in effect at the time of
his offense. A violation of Vehicle Code section 10851 is a
“wobbler” offense, punishable either as a misdemeanor or a
felony. (Veh. Code, § 10851, subd. (a).) Proposition 47 did not
amend the language of Vehicle Code section 10851, subdivision
(a). Defendant therefore could have been convicted of a felony
violation of section 10851, either before or after Proposition 47.
He is not a person “who would have been guilty of a
misdemeanor” had Proposition 47 been in effect at the time of his
offense and is accordingly ineligible for resentencing under Penal
Code section 1170.18, subdivision (a).

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The plain language of section 1170.18 is also incompatible
with defendant’s position. Section 1170.18 provides a means for
an offender to petition for resentencing “in accordance with”
certain enumerated statutes that were amended or added by
Proposition 47 and which provide for a different, lesser
punishment than applied before enactment of Proposition 47.
Vehicle Code section 10851 is not included among the
enumerated statutes added or amended by Proposition 47. Its
statutory language imposing punishment for violations is the
same before and after enactment of the initiative. Because the
same sentencing considerations apply to defendant’s conviction
under Vehicle Code section 10851 before and after enactment of
Proposition 47, there is no basis for reconsidering or reducing the
sentence initially imposed.
Defendant argues that Vehicle Code section 10851 is a theft
offense eligible for resentencing by operation of Penal Code
section 490.2 so long as he can demonstrate that the theft
involved an automobile valued at $950 or less. Section 490.2 does
not broadly cover all theft offenses. The statute, on its face, does
no more than amend the definition of grand theft, as defined in
section 487 “or any other provision of law” by redefining a limited
subset of offenses that would formerly have been grand theft to
petty theft. (§ 490.2, subd. (a).) Vehicle Code section 10851 does
not define the taking of a vehicle as grand theft or petty theft;
rather, it proscribes taking or driving a vehicle “with or without
intent to steal.” (Veh. Code, § 10851, subd. (a).) Our Supreme
Court noted in Garza that Vehicle Code section 10851 “‘proscribes
a wide range of conduct.’ [Citation.] A person can violate section
10851(a) ‘either by taking a vehicle with the intent to steal it or
by driving it with intent only to temporarily deprive its owner of
possession (i.e., joyriding).’ [Citations.]” (Garza, supra, 35
Cal.4th at p. 876.) Unlawful taking or driving of a vehicle does

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not come within the ambit of Penal Code section 1170.18 by
operation of section 490.2.
In a further attempt to bolster his argument that Vehicle
Code section 10851 is a theft offense eligible for resentencing
under Proposition 47, defendant cites Penal Code section 666,
which elevates a misdemeanor petty theft to a “wobbler” offense
for certain recidivist offenders. As amended by Proposition 47,
section 666 continues to include “auto theft under Section 10851
of the Vehicle Code” among the list of thefts to which it applies.
(Pen. Code, § 666, subd. (a).) We are not persuaded that this
classification of Vehicle Code section 10851 as a theft offense for
the purpose of imposing harsher punishment for certain recidivist
offenders is evidence of any electoral intent to include that
statute in an entirely unrelated section of the initiative for the
ameliorative purpose of resentencing as a misdemeanor. Unlike
section 490.2, section 666 does not reduce any offense to a
misdemeanor after Proposition 47 was enacted.
We conclude that violations of Vehicle Code section 10851
and Penal Code section 666 are not offenses that are eligible for
resentencing under Proposition 47.
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________, J.
CHAVEZ
We concur:
____________________, Acting P. J. _______________________, J.*
ASHMANN-GERST GOODMAN
____________________________________________________________
* Retired Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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