Opinion
F072191
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIO CESAR CHAVEZ, Defendant and Appellant.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF114766A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J., and Franson, J.
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INTRODUCTION
Pursuant to a plea agreement, appellant Julio Chavez pled no contest to one count of violating Vehicle Code section 10851, subdivision (a), unlawful driving of a vehicle, in 2006. On June 11, 2015, Chavez filed a petition pursuant to Penal Code section 1170.18, seeking to have his felony sentence recalled and resentenced as a misdemeanor. The superior court denied the petition on the basis a Vehicle Code section 10851 conviction was not eligible for resentencing. Chavez appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
On May 24, 2006, Chavez was charged with violating Vehicle Code section 10851, subdivision (a), a felony; section 496d, a felony; and three misdemeanor offenses. Pursuant to a stipulated plea agreement that encompassed two other outstanding cases, Chavez pled no contest to violating Vehicle Code section 10851, subdivision (a). The trial court imposed a felony sentence of two years for the Vehicle Code section 10851, subdivision (a), offense; a total term of seven years was imposed for all cases encompassed by the plea agreement. Chavez was ordered to pay restitution in an amount to be determined.
The probation report prepared for the unlawful driving of a vehicle offense noted that officers stopped Chavez while Chavez was driving the stolen vehicle. On August 21, 2006, a restitution order was entered ordering Chavez to pay restitution of $1,000 to the vehicle owner.
On June 11, 2015, Chavez filed a petition for resentencing pursuant to section 1170.18, seeking to have his Vehicle Code section 10851 sentence recalled and resentenced as a misdemeanor. The petition stated that Chavez was convicted in 2006 of a violation of "VC 10851(a)" and claimed this offense now was reclassified as a misdemeanor. No facts about the offense were alleged, including a value for the vehicle. Chavez waived appearance for resentencing.
The People filed a response, stating that a "VC 10851" offense was not eligible for resentencing under section 1170.18. On June 23, 2015, the superior court entered an order denying the petition on the grounds a "VC 10851(a)" offense was not eligible for resentencing.
On August 20, 2015, Chavez filed an appeal of the denial of his petition for resentencing. Appellate counsel was appointed on November 12, 2015.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436 on June 14, 2016. That same day, this court issued its letter to Chavez inviting him to submit a supplemental brief. No supplemental brief was filed.
Chavez maintained in his petition that a violation of Vehicle Code section 10851 is eligible for resentencing under section 1170.18. We previously addressed this issue in People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), review granted November 30, 2016, S237975. In Sauceda, we held that Vehicle Code section 10851 is not affected by the changes enacted through Proposition 47 and that no equal protection violation arises from the different potential punishments for, or the failure to grant retroactive sentencing relief to, those convicted under Vehicle Code section 10851. (Sauceda, supra, at pp. 644-650.) We see no reason to depart from those rulings here. Because Vehicle Code section 10851 is not by its nature a theft offense, its exclusion from Proposition 47 confirms there was no intent to modify the punishment scheme separately set forth for the crime of unlawfully driving or taking a vehicle.
Effective July 1, 2016, California Rules of Court, rule 8.1115(e)(1) was amended to provide that a published opinion of a Court of Appeal has no binding or precedential effect once the matter is pending review in the Supreme Court and "may be cited for potentially persuasive value only." --------
Furthermore, the initial burden of proof is upon Chavez to demonstrate he is eligible for relief. (People v. Johnson (2016) 1 Cal.App.5th 953, 961, 964 [petition properly denied where defendant failed to satisfy burden of showing value of property was less than $950]; People v. Sherow (2015) 239 Cal.App.4th 875, 880 ["We think it is entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based."]; People v. Rivas-Colon (2015) 241 Cal.App.4th, 444, 449 [burden on petitioner to show value of stolen property was less than $950].)
In this case, the record shows that Chavez took and drove the vehicle and was ordered to pay restitution of $1,000 to the vehicle owner. Even if we were to assume a Vehicle Code section 10851, subdivision (a) offense was otherwise eligible for resentencing, the value of the item taken, as determined by the order for restitution, exceeded $950 in value. Consequently, Chavez would have been ineligible for resentencing solely based upon the value of the item taken. (People v. Johnson, supra, 1 Cal.App.5th at p. 961; People v. Sherow, supra, 239 Cal.App.4th at p. 880; People v. Rivas-Colon, supra, 241 Cal.App.4th at p. 449.)
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The June 23, 2015, order denying the section 1170.18 petition is affirmed.