People v. Page: Vehicle Code section 10851 Conviction Is Not Prop 47 Eligible

Defendant was convicted of violating Vehicle Code section 10851 [taking or driving a vehicle], along with other crimes.  Subsequently, he filed a petition under Proposition 47 to have this conviction reduced to a misdemeanor but the trial court denied his petition.  Defendant appealed the order in People v. Page (2015) __Cal.App.4th__, Case No. E062760. 

On appeal defendant argued that Vehicle Code section 10851 is a lesser included offense to Penal Code section 487, subdivision (d)(1), grand theft, auto.  (People v. Barrick (1982) 33 Cal.3d 115, 128.) Because the greater offense of Penal Code section 487 [grand theft auto] is eligible for a reduction, the lesser included offense of Vehicle Code section 487 should be found to be  Proposition 47 eligible too.  Proposition 47 makes Penal Code section 487 "or any other provision of law defining grand theft" a misdemeanor if the amount taken wasn't  over $950.  (Pen. Code, § 490.2(a).) 

But the appellate court rejects this argument.  Penal Code section 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47. (Pen. Code, § 1170.18.)  The appellate court explains that it cannot say that defendant would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense because Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 [listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or misdemeanor punishment”].)  Proposition 47 left intact the language in Vehicle Code
section 10851, subdivision (a). 

In  footnote 2, the appellate court also states that “[e]ven if we were to assume that Penal Code section 490.2 applied as defendant would have it—to reduce some Vehicle Code section 10851 convictions that would otherwise be felonies to misdemeanors, at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less.{CT 1, 5-7} The burden of proof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition, providing no information at all regarding his eligibility for resentencing in his petition.{CT 35-36}” 

The court also rejects defendant’s equal protection argument: “The California
Supreme Court has held that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion
in charging under one such statute and not the other, violates equal protection principles.”
(People v. Wilkinson (2004) 33 Cal.4th 821, 838)   

The order appellant appealed from was affirmed. 

Copyright © 2015 Christine Esser

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