Filed 4/12/16 P. v. Lauer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063650
v. (Super.Ct.Nos. FVI015913 &
FVI019883)
JONATHAN LAUER,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Marvin
E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
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In two separate cases, defendant and appellant Jonathan Lauer pled guilty to one
count of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) pursuant
to a plea agreement. Subsequently, California voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act, which among other things established a procedure for
specified classes of offenders to have their felony convictions reduced to misdemeanors
and be resentenced accordingly. (Pen. Code,1 § 1170.18.) Defendant filed a petition for
resentencing, pursuant to Penal Code section 1170.18, in both cases. A trial court found
him ineligible for relief and denied both petitions. Defendant now appeals, arguing that
the court erred in finding him ineligible. We affirm.
PROCEDURAL BACKGROUND
On October 8, 2002, defendant was charged by felony complaint with unlawful
driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a), count 1) and receiving
stolen property (Pen. Code, § 496d, subd. (a), count 2), in case No. FVI015913. On
November 20, 2002, defendant entered a plea agreement and pled guilty to count 1. In
accordance with the agreement, the court sentenced him to 16 months in state prison and
dismissed count 2.
On September 10, 2004, defendant was charged by another felony complaint with
unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a), count 1), in case
No. FVI019883. The complaint also alleged that defendant had served one prior prison
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
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term. (Pen. Code, § 667.5, subd. (b).) On February 16, 2005, defendant entered a plea
agreement and pled guilty to count 1. In accordance with the agreement, the court
sentenced him to two years in state prison and dismissed the prison prior allegation.
On April 22, 2015, defendant filed Proposition 47 petitions for resentencing in
case Nos. FVI015913 and FVI019883. In both petitions, he alleged that he had
completed his sentences and was requesting to have his felonies redesignated as
misdemeanors. (§ 1170.18.) On May 15, 2015, the court found that defendant’s offenses
did not qualify for resentencing under Proposition 47 and denied the petitions.
ANALYSIS
The Court Properly Denied Defendant’s Petitions
Defendant argues that the court erred in not designating his Vehicle Code section
108512 convictions as misdemeanors under Proposition 47. We disagree.
A. Relevant Law
On November 4, 2014, voters enacted Proposition 47, and it went into effect the
next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and
theft-related offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants. These offenses had previously been designated as either felonies
2 Vehicle Code section 10851, subdivision (a), provides: “Any person who drives
or takes a vehicle not his or her own, without the consent of the owner thereof, and with
intent either to permanently or temporarily deprive the owner thereof of his or her title to
or possession of the vehicle, whether with or without intent to steal the vehicle, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be
punished . . . .”
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or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People
v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new
resentencing provision: section 1170.18.” (Id. at p. 1092.) Section 1170.18, subdivision
(a), provides: “A person currently 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 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.”
Thus, “Under section 1170.18, a person ‘currently serving’ a felony sentence for an
offense that is now a misdemeanor under Proposition 47, may petition for a recall of that
sentence and request resentencing in accordance with the statutes that were added or
amended by Proposition 47.” (Rivera, at p. 1091.)
As relevant to the present case, Proposition 47 added section 490.2, which
provides as follows: “(a) 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 . . . .”
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B. Defendant Was Ineligible for Relief
Proposition 47 lists a specific series of crimes that qualify for reduction to a
misdemeanor, separated with the conjunction “or” and ending with the phrase “as those
sections have been amended or added by this act.” (Pen. Code, § 1170.18, subd. (a).)
“The legislative inclusion of . . . crimes . . . necessarily excludes any other[s].” (People
v. Gray (1979) 91 Cal.App.3d 545, 551, superseded by statute on other grounds as stated
in People v. Singleton (1980) 112 Cal.App.3d 418, 424.) Penal Code section 1170.18
does not identify Vehicle Code section 10851 as one of the code sections amended or
added by Proposition 47. (Pen. Code, § 1170.18, subd. (a).) To construe Proposition 47
to include the taking or driving of a vehicle under Vehicle Code section 10851 would
violate the cardinal rule of statutory construction. “‘“When statutory language is clear
and unambiguous, there is no need for construction and courts should not indulge in it.”
[Citation.]’” (People v. Hendrix (1997) 16 Cal.4th 508, 512.) Furthermore, Proposition
47 left intact the language in Vehicle Code section 10851, subdivision (a), which makes a
violation of that statute punishable as either a felony or a misdemeanor. Therefore, based
on the statutory language alone, the court properly found defendant ineligible for relief
under Proposition 47.
Defendant argues that he was eligible for relief because Penal Code section
1170.18, subdivision (a), lists Penal Code section 490.2 (petty theft). He contends that
under Penal Code section 490.2, the theft of an automobile valued at $950 or less is no
longer grand theft, but petty theft, unless the offense was committed by certain ineligible
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defendants. (Pen. Code, §§ 490.2, 487, subd. (d)(1).) Penal Code section 490.2 does
bring a host of unspecified statutes defining grand theft within its ambit. (Pen. Code,
§ 490.2, subd. (a).) However, Vehicle Code section 10851 does not appear explicitly in
Penal Code section 490.2 (as does Pen. Code, § 487). Moreover, Vehicle Code section
10851 does not purport to define the taking of a vehicle as grand theft; rather, it simply
proscribes actions, whether or not there was an intent to steal. (Veh. Code, § 10851,
subd (a); see People v. Garza (2005) 35 Cal.4th 866, 876 [“A person can violate [Vehicle
Code] section 10851[, subdivision] (a) ‘either by taking a vehicle with the intent to steal
it or by driving it with the intent only to temporarily deprive its owner of possession (i.e.,
joyriding).’”].) Thus, Penal Code section 490.2 is simply inapplicable to defendant’s
offense.
Defendant also contends that, in light of the intent of the drafters of Proposition 47
and the rule of lenity, Proposition 47 should be interpreted “in a manner consistent with
the wording of the statute, that results in the lenient treatment of minor theft offenses.”
However, “If the language of a statute is clear and unambiguous, we do not have
anything to construe and consequently do not need to resort to the various forms of
indicia of legislative intent.” (People v. Meyer (2010) 186 Cal.App.4th 1279, 1283.) As
noted, the plain language of Penal Code section 1170.18 is clear and does not include
Vehicle Code section 10851 among the enumerated sections amended or added by
Proposition 47. (Pen. Code, § 1170.18, subd. (a).) Moreover, the statutory language
setting the punishment for violations of Vehicle Code section 10851 remains the same,
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before and after Proposition 47. (Veh. Code, § 10851, subd. (a).) Since the language of
the statutes is clear, there is no need to examine the legislative intent. (Meyer, at
p. 1283.) In any event, defendant does not identify any evidence of the drafters’ intent to
include statutes in Proposition 47, other than the ones enumerated. He merely asserts that
the purpose of Proposition 47 was “to reduce the prison population, and thereby prison
spending and government waste, by focusing scarce resources on serious and violent
crime, rather than minor theft and drug possession offenses.” As for defendant’s reliance
on the rule of lenity, such rule is in applicable here. The rule of lenity “is limited to
situations in which intrinsic or extrinsic evidence of the Legislature’s intent results in
reasonable interpretations that stand in equipoise.” (People v. Elder (2014) 227
Cal.App.4th 1308, 1315.) Such circumstance does not exist here.
Furthermore, even assuming that defendant’s statutory interpretation of
Proposition 47 is correct, he failed to establish that he was eligible for relief. “[A]
petitioner for resentencing under Proposition 47 must establish his or her eligibility for
such resentencing.” (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) To establish
eligibility for resentencing under Penal Code section 1170.18, defendant had the initial
burden of showing that the value of the vehicles was less than $950. The record of
conviction does not establish this fact, as he entered a guilty plea in both cases.
Furthermore, defendant never stated in the petitions that the vehicles were valued at less
than $950, nor did he provide any supporting documentation. Defendant simply failed to
meet his burden of proof. He claims that he “was precluded from presenting any
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evidence regarding the value of the stolen vehicle by the trial court, which held that
Vehicle Code section 10851 was not subject to Proposition 47, and that any evidence of
valuation was, therefore, irrelevant.” However, as explained in Sherow, “‘“[A] party has
the burden of proof as to each fact the existence or nonexistence of which is essential to
the claim for relief or defense he is asserting.”’” (Sherow, at p. 879.) Sherow concluded
that the lower court properly denied the defendant’s Proposition 47 petition because it
contained no facts or explanation how the value of the items taken were less than $950.
(Sherow, at pp. 877, 880-881.) Like the defendant in Sherow, defendant’s petitions here
contained no facts establishing or even alleging that the value of the items taken were less
than $950. Thus, the trial court properly denied his petitions.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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