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Name: People v. Orozco
Case #: D067313
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/24/2018

Defendant with Vehicle Code section 10851 conviction whose Proposition 47 petition was denied before People v. Page (2017) 3 Cal.5th 1175 was decided may file a new petition alleging information that demonstrates eligibility for relief. Orozco filed a Proposition 47 petition to have his felony convictions under Vehicle Code section 10851 and Penal Code section 496d reduced to misdemeanors. The superior court concluded he was ineligible for relief, finding that Proposition 47 did not apply to either offense. After the Court of Appeal affirmed, the Supreme Court directed the appellate court to reconsider the matter in light of People v. Page. Held: Affirmed, without prejudice to filing a new petition on the section 10851 conviction. Proposition 47 reduced a number of nonviolent drug and theft-related felonies to misdemeanors and allows qualified offenders previously convicted of such crimes to apply for reduced sentences (Pen. Code, § 1170.18). In People v. Page, the Supreme Court concluded that a felony section 10851 conviction may be resentenced to a misdemeanor under Proposition 47 (See Pen. Code, § 490.2, subd. (a)) if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle. However, a section 10851 conviction based on unlawful driving or a taking without the intent to permanently deprive the owner of possession is not a theft offense and Proposition 47 does not apply. In Page, the Supreme Court permitted the defendant to file a new petition in which he may allege the necessary eligibility factors, because neither the proper allocation of the burden of proof nor the facts necessary to resentencing on section 10851 had been settled at the time he filed his petition. Orozco stands in the same position, as his petition was filed before the requirements were settled. The Court of Appeal affirmed the superior court’s denial without prejudice to consideration of a new petition providing evidence of his eligibility for relief on the section 10851 conviction.

Proposition 47 does not apply to a violation of Penal Code section 496d (receiving a stolen vehicle). Orozco also argued the trial court should have reduced his felony section 496d conviction to a misdemeanor under Proposition 47. The Court of Appeal disagreed. Proposition 47 amended Penal Code section 496 to provide that receiving stolen property worth $950 or less is a misdemeanor. But section 496d was not amended. There is nothing in Proposition 47 that shows that the electorate intended Proposition 47 to apply to section 496d. The Court of Appeal agreed with, and adopted the reasoning of, People v. Varner (2016) 3 Cal.App.5th 360, which held that Proposition 47 does not apply to section 496d. It was therefore proper to deny the petition on that count. [Editor’s Note: The California Supreme Court granted review in this case to address the following issue: Can a felony conviction for receiving a stolen vehicle in violation of Penal Code section 496d be reclassified as a misdemeanor under Proposition 47 in light of Penal Code section 496, subdivision (a), which provides that receiving other stolen property is a misdemeanor when the value of the property does not exceed $950? (People v. Orozco (2018) 24 Cal.App.5th 667, review granted 8/15/2018 (S249495/D067313).)]

The full opinion is available on the court’s website here: