People v. Moran CA6 ( 2015 )


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  • Filed 12/7/15 P. v. Moran CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                          H041942
    (Santa Clara County
    Plaintiff and Respondent,                                   Super. Ct. Nos. C1348747 &
    C1358576)
    v.
    JAMES GLEN MORAN,
    Defendant and Appellant.
    Appellant James Glen Moran appeals from an order denying his petitions for
    Proposition 47 resentencing. On appeal, appellant contends that the trial court erred in
    ruling that he was ineligible for resentencing.
    BACKGROUND
    In superior court case number C1348747, appellant pleaded no contest to vehicle
    theft with a prior conviction. (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5.) In
    superior court case number C1358576, appellant pleaded no contest to vehicle theft with
    a prior conviction (Veh. Code, § 10851, subd. (a)/Pen. Code, § 666.5). On
    December 18, 2013, the trial court sentenced appellant on both cases. The trial court
    sentenced appellant to a three-year term of imprisonment for the vehicle theft in case
    number C1348747 and a concurrent three-year term of imprisonment for the vehicle theft
    in case number C1358576.
    On December 11, 2014, appellant filed a petition for Proposition 47 resentencing
    (Pen. Code, § 1170.18, subd. (b)) in case number C1348747. That same day, appellant
    filed a petition for Proposition 47 resentencing (Pen. Code, § 1170.18, subd. (b)) in case
    number C1358576. The petitions requested recall of the felony sentences for the vehicle
    thefts and misdemeanor resentencing.
    The trial court denied both of the resentencing petitions on January 12, 2015. In
    denying the petitions, the trial court explained that appellant was “not eligible” for
    Proposition 47 resentencing “by virtue of being convicted under Vehicle Code section
    10851, a section not covered or contemplated by Proposition 47.”
    DISCUSSION
    Appellant contends that the trial court erred in finding him ineligible for
    Proposition 47 resentencing. His argument is twofold. He first asserts that Proposition
    47 “is properly construed as providing for a misdemeanor sentence on a violation of
    Vehicle Code section 10851 where the value of the vehicle does not exceed $950.” He
    next asserts that it violates equal protection principles to deny misdemeanor sentencing to
    a Vehicle Code section 10851 conviction involving “a vehicle costing less than $950.”
    As explained below, appellant has failed to show error.
    On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
    and Schools Act. (People v. Rivera (2015) 
    233 Cal.App.4th 1085
    , 1089.) Proposition 47
    “reduced the penalties for a number of offenses.” (People v. Sherow (2015) 
    239 Cal.App.4th 875
    , 879 (Sherow).) Appellant’s argument relies on Penal Code section
    490.2, which was added by Proposition 47. Penal Code section 490.2 provides, in
    pertinent part: “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
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    considered petty theft and shall be punished as a misdemeanor . . . .” (Pen. Code,
    § 490.2, subd. (a).)
    Penal Code section 1170.18, which was also added by Proposition 47, “creates a
    process where persons previously convicted of crimes as felonies, which would be
    misdemeanors under the new definitions in Proposition 47, may petition for
    resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 879.) Penal Code section 1170.18
    specifies that a person may petition for resentencing in accordance with Penal Code
    section 490.2. (Pen. Code, § 1170.18, subd. (a).)
    “[A] petitioner for resentencing under Proposition 47 must establish his or her
    eligibility for such resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The
    petitioner for resentencing has the “initial burden of proof” to “establish the facts[] upon
    which his or her eligibility is based.” (Id. at p. 880.) If the crime under consideration is a
    theft offense, “ ‘the petitioner will have the burden of proving the value of the property
    did not exceed $950.’ [Citation.]” (Id. at p. 879.) In making such a showing, “[a] proper
    petition could certainly contain at least [the petitioner’s] testimony about the nature of the
    items taken.” (Id. at p. 880.) If the petition makes a sufficient showing, the trial court
    “can take such action as appropriate to grant the petition or permit further factual
    determination.” (Ibid.)
    “Perhaps the most fundamental rule of appellate law is that the judgment
    challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
    demonstrate error.” (People v. Sanghera (2006) 
    139 Cal.App.4th 1567
    , 1573.) “The
    very settled rule of appellate review is a trial court’s order/judgment is presumed to be
    correct, error is never presumed, and the appealing party must affirmatively demonstrate
    error on the face of the record.” (People v. Davis (1996) 
    50 Cal.App.4th 168
    , 172.)
    Here, appellant’s entire argument is premised on the assumption that the vehicles
    he stole were each valued at $950 or less. He presented no facts or evidence in his
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    resentencing petitions, however, to show that the vehicles were worth $950 or less. Nor
    do the records of appellant’s convictions contain any evidence showing that the vehicles
    were valued at $950 or less. Indeed, appellant’s appellate briefs do not even attempt to
    identify any evidence showing that the vehicles were worth $950 or less. Given the
    absence of any facts or evidence showing that the vehicles were valued at $950 or less,
    appellant has failed to demonstrate error, and we must affirm.
    We will affirm without prejudice. We note that a petition containing a declaration
    regarding the value of the stolen vehicles could be sufficient to set the resentencing
    matter for hearing. (See Sherow, supra, 239 Cal.App.4th at p. 880 [a proper resentencing
    petition “could certainly contain at least” the petitioner’s testimony about the stolen item,
    and on a sufficient showing the trial court “can take such action as appropriate to grant
    the petition or permit further factual determination”].)
    DISPOSITION
    The order denying resentencing is affirmed without prejudice to subsequent
    consideration of a resentencing petition that demonstrates stolen vehicles valued at $950
    or less.
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    ______________________________________
    RUSHING, P.J.
    WE CONCUR:
    ____________________________________
    PREMO, J.
    ____________________________________
    MÁRQUEZ, J.
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Document Info

Docket Number: H041942

Filed Date: 12/7/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021