Opinion
D069958
03-22-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ROLANDO CABELLO, Defendant and Appellant.
Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Land-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS274556) APPEAL from a postjudgment order of the Superior Court of San Diego County, David J. Danielsen, Judge. Reversed and remanded with directions. Theresa O. Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Land-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Francisco Rolando Cabello appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.18. The court denied the petition because the court determined Cabello's felony conviction for taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), was categorically ineligible for resentencing as misdemeanor petty theft (Pen. Code, § 490.2, subd. (a)). However, the California Supreme Court recently held a defendant whose conviction under Vehicle Code section 10851, subdivision (a), was for the theft of a vehicle worth $950 or less is eligible to be resentenced to misdemeanor petty theft under Penal Code section 490.2, subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1180, 1184, 1187-1188 (Page).) As the record establishes Cabello's conviction was for vehicle theft and the value of the vehicle he stole was worth less than $950, Cabello's conviction is eligible for resentencing as misdemeanor petty theft. We, therefore, reverse the order and remand the matter with directions to the court to grant the petition.
We previously affirmed the court's order. (People v. Cabello (Dec. 9, 2016, D069958) [nonpub. opn.].) The Supreme Court granted Cabello's petition for review and deferred further action on the petition pending the Supreme Court's decision in Page, supra, 3 Cal.5th 1175. The Supreme Court then transferred the matter back to us for reconsideration in light of the decision. --------
II
BACKGROUND
Cabello pleaded guilty to unlawfully taking and driving a vehicle in violation of Vehicle Code section 10851, subdivision (a). As the factual basis for his guilty plea, Cabello stated on his guilty plea form he "unlawfully took a vehicle, the personal property of another, with the intent to temporarily or permanently deprive the owner of its use." However, during his plea colloquy, he acknowledged he committed vehicle theft. The court subsequently sentenced him to a negotiated term of two years in jail.
A little over a year later, Cabello petitioned the court under Penal Code section 1170.18 to be resentenced to misdemeanor petty theft under Penal Code section 490.2, subdivision (a). As part of his petition, Cabello provided the court with photographs and estimates indicating the vehicle he stole was worth well under $950. The People countered with photographs and evidence indicating the vehicle was worth a little over $1,000. Although the court found Cabello had presented enough evidence to establish the vehicle was worth less than $950, the court nonetheless denied the petition because the court found a violation of Vehicle Code section 10851, subdivision (a), was categorically ineligible for the requested resentencing.
III
DISCUSSION
"Approved by the voters in 2014, Proposition 47 (the 'Safe Neighborhoods and Schools Act') reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that 'obtaining any property by theft' is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. (Citation.) A separate provision of Proposition 47, codified in Penal Code section 1170.18, subdivision (a), establishes procedures under which a person serving a felony sentence at the time of Proposition 47's passage may be resentenced to a misdemeanor term if the person 'would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense.' (Pen. Code, § 1170.18, subd. (a).)" (Page, supra, 3 Cal.5th at p. 1179.)
Penal Code section 1170.18 permits resentencing under Penal Code section 490.2, subdivision (a), for theft of property worth $950 or less. Vehicle Code section 10851, subdivision (a), can be violated in several ways, one of which is by vehicle theft. (Page, supra, 3 Cal.5th at pp. 1180, 1182-1183; People v. Garza (2005) 35 Cal.4th 866, 871.) Penal Code section 490.2, subdivision (a), covers the theft form of a Vehicle Code section 10851, subdivision (a), violation. (Page, at p. 1183.) "A person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851[, subdivision (a),] may therefore be resentenced under [Penal Code] section 1170.18 if the person can show the vehicle was worth $950 or less." (Page, at pp. 1180, 1184, 1187-1188.)
Here, the record establishes Cabello's violation of Vehicle Code section 10851, subdivision (a), was for vehicle theft and not some other prohibited conduct, such as joyriding. The record also establishes the vehicle Cabello stole was worth less than $950. Accordingly, Cabello's felony conviction for violating Vehicle Code section 10851, subdivision (a), is eligible for resentencing to misdemeanor petty theft under Penal Code section 490.2, subdivision (a).
IV
DISPOSITION
The order is reversed and the matter is remanded to the trial court to enter a new order granting the petition for resentencing.
McCONNELL, P. J. WE CONCUR: NARES, J. O'ROURKE, J.