Opinion
G052383
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANK AARON MORENO, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF1783) OPINION Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Frank Aaron Moreno appeals the denial of his petition for relief under Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47), which sought to reduce two felony convictions for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) to misdemeanors. We affirm.
FACTS
In 2014, Moreno and an accomplice took a 2005 Honda CRV from its owner's driveway and used this car in the theft of a 2012 Jeep Patriot from a Sam's Club parking lot. (See People v. Navarro (April 7, 2016, G051065) [nonpub. opn.].)
A jury convicted Moreno of two counts of driving or taking a vehicle, and he admitted serving two prior prison terms (Pen. Code, § 667.5, subd. (a); all further statutory references are to the Penal Code unless otherwise stated) and having a prior strike conviction (§ 667, subds. (a)-(i)).
Prior to sentencing, Moreno filed a combined sentencing brief and "motion to reduce counts one and two to misdemeanors pursuant to Prop[osition] 47; Romero motion." (Capitalization omitted, italics added.) The court denied the motion to reduce, which was a petition for reduction of the felony vehicle theft convictions under section 1170.18, subdivision (a). About a year later the court dismissed the prior strike for sentencing purposes (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), imposed and suspended an aggregate six-year prison term and placed Moreno on probation for five years. Moreno appealed.
DISCUSSION
Moreno argues felony convictions for unlawfully taking or driving a vehicle are properly considered theft offenses subject to reduction under the definition of petty theft added by Proposition 47. (§ 490.2.) He also believes the prosecution bore the burden of proof to establish the value of the vehicles. We disagree.
Passed and enacted in November 2014, Proposition 47 amended various provisions of the Penal and Health and Safety Codes to reduce specified drug and theft offenses to misdemeanors unless the crime is committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Vehicle Code section 10851 is not one of the specified theft offenses.
Moreno concedes the point but asserts the petty theft statute added by Proposition 47 (§ 490.2) should be read broadly to include the theft of vehicles with a value less than $950. That is because section 1170.18 provides relief when the defendant "would have been guilty of misdemeanor under the act that added this section had this act been in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) Moreno also argues grand theft of a vehicle (§ 487) may be reduced pursuant to section 1170.18, and constitutional principles of equal protection prohibit disparate treatment of Vehicle Code section 10851 convictions.
Section 490.2, subdivision (a) 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 . . . ." --------
The issue of whether Proposition 47 applies to Vehicle Code section 10851 convictions is before the California Supreme Court in People v. Page (2015) 241 Cal.App.4th 714, review granted January 27, 2016, S230793 (Veh. Code, § 10851 ineligible for resentencing under § 1170.18, subd. (a)); People v. Haywood (2015) 243 Cal.App.4th 515, review granted March 9, 2016, S232250 (same); People v. Ortiz (2016) 243 Cal.App.4th 854, review granted March 16, 2016, S232344 (Veh. Code, § 10851 eligible for reduction provided offense meets definition of petty theft); People v. Solis (2016) 245 Cal.App.4th 1099, review granted June 8, 2016, S234150 (plain meaning of § 490.2 excludes Veh. Code, § 10851 offenses from Proposition 47 relief), and People v. Johnston (2016) 247 Cal.App.4th 252, review granted July 13, 2016, S235041 (same).
However, we need not address these issues in the present case. One settled issue in Proposition 47 litigation is who bears the burden of proving eligibility under section 1170.18. The defendant must establish his or her eligibility for relief. (People v. Sherow (2015) 239 Cal.App.4th 875, 880.) But Moreno failed to present any evidence the 2005 Honda CRV or 2012 Jeep Patriot he took or drove without the owners' permission in 2014 had a value of $950 or less. Because Moreno provided no evidence on the value of the vehicles he unlawfully took or drove, his petition was properly denied.
DISPOSITION
The judgment is affirmed. However, nothing in this opinion forecloses Moreno's ability to file a new petition alleging sufficient facts to support his claim that his conviction was a violation of section 490.2.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.