P. v. Casias

Filed 3/22/16 P. v. Casias CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
FREDDY CASIAS,
Defendant and Appellant.
H042065
(Santa Clara County
Super. Ct. No. C1369155)
After the electorate approved Proposition 47 in November 2014, defendant Freddy
Casias brought a petition to reduce his conviction for vehicle theft with a prior conviction
(Veh. Code, § 10851; Pen. Code, § 666.5) to a misdemeanor and be resentenced
accordingly. The trial court denied the petition. On appeal, defendant contends that the
voters intended that Proposition 47 would apply to the theft of a vehicle valued at no
more than $950. He also contends that his felony conviction violates his right to equal
protection. We affirm the order because defendant failed to show that the value of the
vehicle did not exceed $950.
I. Statement of the Case
In February 2014, defendant pleaded no contest to vehicle theft with a prior
conviction, possession of a controlled substance (Health & Saf. Code, § 11377,

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subd. (a)), and using or being under the influence of a controlled substance (Health &
Saf. Code, § 11550, subd. (a)). Defendant also admitted the allegations that he had three
prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served three
prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to
four years in state prison.
In January 2015, defendant brought a petition for resentencing. About a month
later, the trial court concluded that a Vehicle Code section 10851 conviction was not
affected by Proposition 47 and denied the petition as to that conviction. However, the
trial court granted the petition as to his conviction of possession of a controlled
substance.
II. Statement of Facts
The complaint alleged that on November 4, 2013, defendant committed vehicle
theft with a prior conviction when he drove and took a 1995 Oldsmobile Cutlass, which
belonged to Mauricio Gutierrez. It was further alleged that the vehicle was taken and
driven without Gutierrez’s consent and with the intent to deprive him of title to and
possession of the vehicle.
At the sentencing hearing, defendant was ordered to pay $1,217.97 in restitution to
Gutierrez.
III. Discussion
Proposition 47 established procedures for petitions for reduced sentences for
specified nonserious and nonviolent property and drug crimes by adding Penal Code
section 1170.18. This statute provides in relevant part: “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

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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.” (Pen. Code, § 1170.18, subd. (a).)
Penal Code section 1170.18, subdivision (b) provides that a court that receives such a
petition shall resentence the petitioner “unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
Though Penal Code section 1170.18 does not refer to Vehicle Code section 10851,
defendant argues that “the voters intended Vehicle Code section 10851 to come under the
provisions of Proposition 47.” He points to Proposition 47’s addition of Penal Code
section 490.2, which states in relevant 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 considered petty theft and shall be punished as a
misdemeanor . . . .” (Pen. Code, § 490.2, subd. (a).) Thus, he argues that all thefts of
property, including violations of Vehicle Code section 10851, with a value less than $950
are characterized as petty thefts under Penal Code section 490.2.
The Attorney General responds that defendant was convicted of vehicle theft
(Veh. Code, § 10851) with a prior felony conviction of vehicle theft (Pen. Code, § 666.5).
She points out that while Penal Code section 6661 was included in Penal Code section
1170.18, subdivision (a), Penal Code section 666.5 was not. Thus, she argues that since
1 Penal Code section 666, subdivision (a) provides that any person with a prior
violent or serious felony conviction “who, having been convicted of . . . auto theft under
Section 10851 of the Vehicle Code . . . , and having served a term of imprisonment
therefor in any penal institution . . . and who is subsequently convicted of petty theft, is
punishable by imprisonment in the county jail not exceeding one year, or in the state
prison.”

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Penal Code section 666.52 was not among the statutes listed as amended or added by
Proposition 47, defendant was ineligible for resentencing.
We need not resolve this issue, because, even assuming that defendant’s argument
has merit, he has failed to establish that he was entitled to relief.3
“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. [Citations.]” (People v. Davis
(1996) 50 Cal.App.4th 168, 172.)
“[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.)
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.) 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.)
Here, defendant’s petition did not include any information as to the value of the
stolen vehicle. He argues in his reply brief that the record establishes that the vehicle was
approximately 18 years old when it was taken and thus “it is reasonable to infer that the
car would be worth less than $950.” Defendant’s argument is not evidence. Moreover,
2 Penal Code section 666.5, subdivision (a) provides in relevant part: “Every person
who, having been previously convicted of a felony violation of Section 10851 of the
Vehicle Code [theft and unlawful driving or taking of a vehicle], or felony grand theft
involving an automobile in violation of subdivision (d) of Section 487 . . . , or a felony
violation of Section 496d regardless of whether or not the person actually served a prior
prison term for those offenses, is subsequently convicted of any of these offenses shall be
punished by imprisonment pursuant to subdivision (h) of section 1170 for two, three, or
four years . . . ”
3 The issue of whether Proposition 47 applies to convictions of Vehicle Code
section 10851 is currently pending before the California Supreme Court in People v.
Page (2015) 241 Cal.App.4th 714, review granted, January 27, 2016, S230793.

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the trial court ordered defendant to pay the victim $1,217.97 in restitution. As defendant
points out, the record does not disclose whether the restitution order included
compensation for the value of the stolen property, repair costs, or lost wages. (Pen. Code,
§ 1202.4, subd. (f)(3).) Nevertheless, we cannot assume error. Since defendant failed to
meet his burden of proving that the value of the vehicle did not exceed $950, the order
must be affirmed.
IV. Disposition
The order is affirmed.

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_______________________________
Mihara, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
______________________________
Bamattre-Manoukian, J.
People v. Casias
H042065

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