Filed 3/23/18 P. v. Aguayo CA1/4
Opinion on remand from supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN AGUAYO,
Defendant and Appellant.

A144051

(Solano County
Super. Ct. No. VCR219459)



Defendant John Aguayo appeals from the trial court’s denial of his petition to recall his sentence pursuant to Penal Code section 1170.18, a recently enacted provision of Proposition 47, and to reduce his prior conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) from a felony to a misdemeanor. In our initial opinion in this case, we did not reach the merits of Aguayo’s argument that Vehicle Code section 10851 convictions may be reduced under Proposition 47. Instead, we concluded that, even if such reduction is available in some circumstances, Aguayo had not met his burden to show that he was eligible for resentencing, because he had not shown the value of the vehicle at issue was $950 or less. We therefore affirmed the denial of his petition without prejudice.
The Supreme Court granted Aguayo’s petition for review pending its decision in People v. Page (2017) 3 Cal.5th 1175 (Page), and, now that the court has decided Page, it has transferred this case back to us for reconsideration in light of that decision. In Page, the court held a felony violation of Vehicle Code section 10851 is eligible for resentencing under Proposition 47 if the conviction is based on the theft of a vehicle worth $950 or less. (Page, supra, 3 Cal.5th at p. 1180.) Applying Page, we conclude again that Aguayo’s petition did not establish his eligibility for resentencing. Accordingly, we affirm the denial of Aguayo’s petition without prejudice to consideration of a subsequent petition providing evidence of his eligibility for resentencing.
I. BACKGROUND
A complaint filed on December 3, 2013 charged Aguayo with (1) felony evading of a peace officer with willful disregard (Veh. Code, § 2800.2, subd. (a)), (2) felony driving in a direction opposite to traffic while evading an officer (Veh. Code, § 2800.4), (3) felony unlawful driving or taking of a 1995 Acura Integra (Veh. Code, § 10851, subd. (a)), (4) felony receiving of the 1995 Acura Integra, knowing it was stolen (§ 496d, subd. (a)), and (5) possession of burglary tools (a misdemeanor) (§ 466).
On December 12, 2013, as part of a negotiated resolution of the case, Aguayo entered a plea of no contest to the charge of felony unlawful driving or taking of a vehicle, and the court dismissed the remaining counts on the prosecution’s motion. The court suspended imposition of sentence, placed Aguayo on three years’ formal probation, and ordered him to serve 120 days in jail. On three subsequent occasions, Aguayo admitted to violating the terms of his probation; in each instance, the court reinstated probation.
On December 10, 2014, while still on probation, Aguayo filed a petition pursuant to section 1170.18 (the resentencing provision of Proposition 47), asking the court to recall his felony sentence and to resentence him to a misdemeanor. In his petition, Aguayo argued that (1) the unlawful driving or taking of a vehicle under Vehicle Code section 10851, subdivision (a) is a theft offense, and (2) pursuant to section 490.2 (added by Proposition 47), the theft of a vehicle valued at $950 or less is a misdemeanor. The petition stated there was no evidence in the record that the value of the vehicle in the present case was more than $950. The petition also stated that “the condition of the vehicle according to the reports appears to be poor as the vehicle is older and had faded paint on the hood and roof.”
At the hearing on Aguayo’s petition, the deputy district attorney argued Aguayo was not eligible for resentencing because Vehicle Code section 10851 is not “one of the enumerated offenses” eligible for resentencing under Proposition 47. The deputy district attorney also argued Aguayo, the moving party, had not met his burden to show he was eligible for resentencing.
Aguayo’s counsel responded by arguing that, under section 490.2, the theft of a vehicle valued at $950 or less is a misdemeanor. Aguayo’s counsel suggested a defendant seeking resentencing under Proposition 47 should not bear the burden to prove the value of the vehicle involved. As to the value of the 1995 Acura Integra involved in the present case, counsel for Aguayo stated that, based on the year, make and model of the car, and after reviewing Kelley Blue Book, “the information that we have is that it would be less than $950.” Counsel added: “We have not been provided any information from the district attorney that would state contrary to this.” Aguayo’s counsel did not offer to present evidence as to the value of the vehicle.
After hearing the parties’ arguments, the trial court denied Aguayo’s resentencing petition without prejudice. The court concluded Aguayo was not entitled to relief because Vehicle Code section 10851 is not one of the listed offenses that qualify for resentencing under Proposition 47. The court also denied the petition based on the value of the vehicle at issue. The court stated: “I think that the moving party [i.e., Aguayo] bears the burden of establishing that the value [of the vehicle] falls below $950. And in this motion, I have nothing to establish that.” Aguayo appealed.
II. DISCUSSION
In November 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the offenses were committed by otherwise ineligible defendants. (Id. at p. 1091.) Among other things, Proposition 47 added section 490.2, which provides in part that, “[n]otwithstanding 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,” unless the offense was committed by a defendant who is required to register as a sex offender (§ 290) or has previously been convicted of one or more serious or violent felonies listed in section 667, subdivision (e)(2)(C)(iv). (§ 490.2, subd. (a).)
Proposition 47 also added a new resentencing provision, section 1170.18, which permits “a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47 [to] petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47.” (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.) “Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions ‘designated as misdemeanors.’ ” (Id. at p. 1093.)
“Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner’s consent, and ‘with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.’ ” (Page, supra, 3 Cal.5th at p. 1182.) Although section 1170.18 does not expressly refer to Vehicle Code section 10851, it does permit resentencing to a misdemeanor under section 490.2 for theft of property worth $950 or less. (Page, supra, 3 Cal.5th at p. 1180.) “Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle. [Citation.] A person convicted before Proposition 47’s passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less.” (Page, supra, 3 Cal.5th at p. 1180.)
A defendant seeking to have pre-Proposition 47 felonies reduced to misdemeanors bears the burden of proving his or her eligibility for such relief. (Page, supra, 3 Cal.5th at p. 1188; People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski).) Aguayo concedes this point in the supplemental brief he filed after this case was transferred back from the Supreme Court.
Our Supreme Court explained in Romanowski: “In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, ‘the petitioner’s felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 [(Sherow)] . . . [‘A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.’].)” (Romanowski, supra, 2 Cal.5th at p. 916.) “ ‘If the crime under consideration is a theft offense under [section 490.2], the petitioner will have the . . . burden of proving the value of the property did not exceed $950.’ ” (Sherow, supra, at p. 879; accord, Page, supra, 3 Cal.5th at p. 1188; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)
Here, as Aguayo concedes in his supplemental brief, he has not met an essential part of his burden because he has not shown the value of the Acura Integra was $950 or less. As the trial court noted, and as Aguayo acknowledges, neither the record of conviction nor Aguayo’s resentencing petition establishes the value of the vehicle. Aguayo’s counsel’s assertions in the petition and at the hearing about the vehicle’s likely value, without any evidence supporting them, are insufficient to establish the vehicle’s value.
In addition, to be eligible for resentencing, under Page, Aguayo must establish the basis for his felony conviction under Vehicle Code section 10851, i.e., he must show the conviction “was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation].” (Page, supra, 3 Cal.5th at p. 1188.) A resentencing court may be able to make this determination from the record of conviction. (Id. at p. 1189.) Here, because the trial court concluded Vehicle Code section 10851 offenses are never eligible for resentencing, it did not address whether Aguayo’s felony conviction was based on vehicle theft.
In his supplemental brief, Aguayo contends the record on appeal establishes his conviction was based on vehicle theft. He relies on a portion of the colloquy at the time he entered his no contest plea, during which the court stated: “Looks like you want to enter a new and different plea of no contest to Count Three, which is a felony violation of 10851 of the Vehicle Code, that’s auto theft. Is that what you want to do?” Aguayo replied: “Yes, sir.” After finding Aguayo had voluntarily waived his constitutional rights, the court asked counsel for the parties: “[D]o the two of you want to stipulate to a factual basis?” Aguayo’s counsel responded, “[s]o stipulated”; the prosecutor stated, “[y]es”; and the court accepted Aguayo’s plea. Neither attorney described any details of the underlying offense.
This passage, without more, does not establish Aguayo’s eligibility. It appears that, when the court used the phrase “that’s auto theft,” it was providing a shorthand summary of the offense charged in Count 3 of the complaint (i.e., a violation of Veh. Code, § 10851), rather than specifying the type of Vehicle Code section 10851 violation Aguayo committed. (We note Count 3 itself uses general language encompassing multiple theories of culpability, stating Aguayo “did unlawfully drive and take” the vehicle, “with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.”)
In December 2014, when Aguayo filed his petition for resentencing, the requirements governing pleading and proof in requests for relief under Proposition 47 were less settled. Accordingly, we will affirm the trial court’s denial of Aguayo’s Proposition 47 resentencing petition without prejudice to subsequent consideration of a properly filed petition providing evidence of Aguayo’s eligibility for relief under Proposition 47. (See Page, supra, 3 Cal.5th at p. 1189; People v. Perkins (2016) 244 Cal.App.4th 129, 139–140, 142; Sherow, supra, 239 Cal.App.4th at p. 881.)
III. DISPOSITION
The order denying Aguayo’s petition to recall his sentence and for resentencing under section 1170.18 is affirmed, without prejudice to consideration of a properly filed petition supplying evidence of his eligibility for relief under Proposition 47.









_________________________
Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Schulman, J.*