P v. Ortiz (6th Dist.): Some VC10851 Convictions Fall Within PC490.2 and are PC1170.18 Eligible

This is another opinion finding that certain VC 10851 convictions fall within PC490.2, necessarily making such convictions misdemeanors, and eligible for relief pursuant to PC 1170.18.

Two weeks after the owner reported her car stolen, Ortiz was found in possession of the car.  The license plate of the car had been switched and burglary tools were found.  Ortiz was charged with, and pled guilty to, violating VC 10851 which proscribes taking or driving a vehicle without the owners permission.

Following the November 4, 2014, passage of Proposition 47, Ortiz petitioned pursuant to PC 1170.18 to reduce his VC10851 conviction to a misdemeanor.  The trial court denied the petition, without receiving any evidence, on the basis that a VC10851 conviction is not an eligible conviction under PC 1170.18.

A Sixth District panel affirms the denial, without prejudice, but holds that a 10851 conviction for taking a vehicle worth 950 dollars or less is eligible for 1170.18 relief.  Since the trial court did not receive any evidence, Ortiz may file another petition and present evidence the car's value.

The analysis is tight, focusing on the statutory language without any premature larks to the land of initiative history and avoiding defendant "windfalls".  The threshold issue is identified, correctly, as whether or not Ortiz's VC 10851 conviction would have necessarily been a misdemeanor had Ortiz committed the crime after November 4, 2014.  Resolving this issue requires looking to Penal Code section 490.2 and determining whether Ortiz's 10851 conviction falls within the language of 490.2.

The court treats the opening prepositional phrase of 490.2 as illustrative, not mandatory.  This finding means the fact 10851 does not define "grand theft" is not fatal; any theft of property not more than 950 dollars falls under 490.2.

Since 10851 is disjunctive, it can be violated by either taking a vehicle (a theft) or just driving a vehicle (not a theft), the court addresses whether Ortiz's conviction was for taking or driving.  The panel finds the facts support a finding that Ortiz's conviction was for taking the car.  So if Ortiz refiles his petition and can meet his burden of showing, by a preponderance of evidence, that the car was not worth more than 950 dollars, he can get his misdemeanor.