People v. Juarez CA2/6 ( 2021 )

Filed 12/15/21 P. v. Juarez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309938
(Super. Ct. No. 2003012255)
Plaintiff and Respondent, (Ventura County)
v.
RICARDO DIAZ JUAREZ,
Defendant and Appellant.
Ricardo Diaz Juarez appeals the denial of his
application under Penal Code section 1170.181 to reduce a 2003
felony conviction of unlawful driving or taking of a vehicle to a
misdemeanor. The trial court denied the application because it
found appellant had a prior conviction of a “super strike” that
made him ineligible for relief. (§ 667, subd. (e)(2)(C)(iv).) As
respondent correctly concedes, this finding was in error.
Appellant does not have a disqualifying prior conviction.
All statutory references are to the Penal Code unless
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otherwise stated.
Consequently, we reverse the order denying appellant’s
application and remand the matter to permit the trial court to
determine whether appellant is eligible for relief.
FACTS
Appellant pleaded guilty in 2003 to unlawful driving
or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) Evidence
at his preliminary hearing showed the vehicle was a 1989 Jeep
Cherokee. Appellant later violated the terms of his probation. In
2004, the trial court sentenced him to two years in state prison.
In 2015, appellant was convicted of assault with a
semiautomatic firearm (§ 245, subd. (b)), assault with a deadly
weapon (§ 245, subd. (a)(1)), street terrorism (§ 186.22, subd. (a))
and resisting a peace officer. (§ 148, subd. (a)(1).) He was
sentenced to a term in state prison of 30 years. We affirmed his
conviction in an unpublished opinion. (People v. Juarez (Oct. 19,
2016, B263348).)
Appellant then filed an application to reduce his 2003
conviction to a misdemeanor on the ground that the vehicle he
took was worth less than $950. (§ 1170.18, subd. (f); People v.
Page (2017) 3 Cal.5th 1175, 1183.) The district attorney
responded that appellant was not eligible for relief because he
had “at least one prior conviction of an offense under Penal Code,
§ 667 (e)(2)(C)(iv).” The trial court accepted that representation
and denied the petition. The trial court made no findings
regarding the value of the vehicle appellant took.
DISCUSSION
Proposition 47, adopted in November 2014, added
section 490.2 to the Penal Code. This statute provides that theft
of property not exceeding $950 in value, “shall be considered
petty theft and shall be punished as a misdemeanor . . . .” (§
2
490.2, subd. (a).) Section 1170.18, also added by Proposition 47,
establishes a procedure for redesignating a past felony conviction
as a misdemeanor if the offender has already completed his or
her sentence and if the offender “would have been guilty of a
misdemeanor under [Proposition 47] had this act been in effect at
the time of the offense . . . .” (§ 1170.18, subd. (f).) Section
1170.18 applies to the unlawful taking of a vehicle in violation of
Vehicle Code section 10851, subdivision (a). (People v. Lara
(2019) 6 Cal.5th 1128, 1135-1137 (Lara).)
Section 1170.18 expressly disqualifies certain
offenders from resentencing, including those with a prior
conviction for one of the offenses listed in section 667, subdivision
(e)(2)(C)(iv). These so-called “super strike” offenses include many
felony sex offenses, homicide, attempted homicide and solicitation
to commit murder, assault with a machine gun on a peace officer
or firefighter, possession of a weapon of mass destruction and any
offense punishable by life imprisonment or death.
Here, the trial court denied appellant’s application on
the sole ground that he had a disqualifying “super strike”
conviction. This finding is not supported by the record. Although
appellant was subsequently charged with attempted murder, he
was acquitted of that charge. Because there is no evidence
appellant has a disqualifying prior conviction, the order denying
his application to reclassify his conviction of vehicle taking must
be reversed.
Appellant has the burden to prove his prior
conviction is eligible for reclassification based on the nature of
the offense and value of the property taken. (Lara, supra, 6
Cal.5th at pp. 1135-1137; People v. Bullard (2020) 9 Cal.5th 94,
110.) We remand the matter for that purpose.
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DISPOSITION
The order denying appellant’s application for
reduction of conviction from felony to misdemeanor is reversed.
The matter is remanded to permit the superior court to
determine whether appellant is eligible for relief pursuant to
section 1170.18.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Nancy Ayers, Judge
Superior Court County of Ventura
______________________________
Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Stephanie C. Santoro, Deputy Attorney
General, for Plaintiff and Respondent.