Filed 1/19/18 P. v. Baquiran CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

EMMANUEL MORALES BAQUIRAN,

Defendant and Appellant.
H044676
(Santa Clara County
Super. Ct. No. EE221913)
I. INTRODUCTION
In 2002, defendant Emmanuel Morales Baquiran pleaded no contest to taking or driving a vehicle without the owner’s consent in violation of former Vehicle Code section 10851, subdivision (a) (hereafter Vehicle Code section 10851(a)), and receiving stolen property in violation of former Penal Code section 496, subdivision (a). Defendant was placed on probation, and his probation was terminated in 2005.
In 2017, defendant filed a petition with the trial court pursuant to section 1170.18, subdivision (f), which was enacted as part of Proposition 47, to have both felony convictions redesignated as misdemeanors. The court granted the petition as to the conviction for receiving stolen property (former § 496, subd. (a)) but denied the petition as to the conviction for taking or driving a vehicle without the owner’s consent (former Veh. Code, § section 10851(a)). The court determined that the Vehicle Code offense was categorically ineligible for redesignation under section 1170.18. On appeal, defendant contends that the trial court erred by denying the petition.
While this case was pending on appeal, the California Supreme Court in People v. Page (2017) 3 Cal.5th 1175 (Page) held that a defendant who has been convicted of a violation of Vehicle Code section 10851(a) is not categorically ineligible for relief under section 1170.18. (Page, supra, at p. 1180.) We will therefore reverse the order denying defendant’s petition for redesignation and remand the matter for a determination of the merits of the petition.
II. BACKGROUND
A. Vehicle Code Section 10851(a) Conviction
In 2002, defendant was charged by complaint with taking or driving a vehicle without the owner’s consent in violation of former Vehicle Code section 10851(a) (count 1) and receiving stolen property in violation of former section 496, subdivision (a) (count 2). Defendant pleaded no contest to both counts. The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve eight months in jail. Defendant’s probation was terminated in 2005.
B. Petition for Redesignation as a Misdemeanor
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Page, supra, 3 Cal.5th at p. 1179.) Proposition 47 “reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies.” (Page, supra, at p. 1179.) Relevant here, Proposition 47 added section 490.2, which provides that “obtaining any property by theft,” where the value of the property taken is $950 or less, is petty theft and shall generally be punished as a misdemeanor. (§ 490.2, subd. (a).) In addition, Proposition 47 added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g); People v. Gonzales (2017) 2 Cal.5th 858, 863.)
In March 2017, defendant filed a petition for redesignation of his felony convictions. He stated in the petition that he had completed his sentence for the convictions. In support of the petition, defendant provided a declaration from trial counsel, an excerpt from a crime report by law enforcement, and the complaint.
According to the crime report by law enforcement, defendant was found sleeping in a parked vehicle that had been reported stolen. The right front passenger door lock “had been forcibly pried,” and the ignition switch was “punched.” A “flat bladed screwdriver” was on the right front passenger seat. The crime report indicated that the “Extent of Injuries/Dollar Loss” was $500. Defendant was arrested without incident.
The complaint alleged that a violation of Vehicle Code section 10851(a) was committed by defendant, “who did drive and take a vehicle, a 1984 Nissan Sentra, belonging to Klauer’s Pick N’ Pull, without the consent of the owner and with the intent to deprive the owner of title to and possession of the vehicle.” The complaint also alleged that a violation of section 496, subdivision (a) was committed by defendant, “who did buy and receive, and conceal and withhold and aid in concealing and withholding from the owner, property, [a] 1984 Nissan Sentra, that had been stolen, knowing the property to have been stolen.”
Defendant requested a hearing on his petition for redesignation only if the petition was opposed by the prosecution.
In a written response, the prosecutor argued that defendant’s Vehicle Code conviction did “not qualify” for redesignation as a misdemeanor. The prosecutor conceded, however, that defendant’s conviction for receiving stolen property (former § 496, subd. (a)) should be redesignated as a misdemeanor.
C. The Trial Court’s Order
By written order filed May 2, 2017, the trial court granted defendant’s petition for redesignation regarding his conviction for receiving stolen property (former § 496, subd. (a)), but denied the petition regarding his conviction for violating former Vehicle Code section 10851(a). The court stated that “only certain charges are affected by the provisions of” section 1170.18, and that Vehicle Code section 10851 was not one of them. The court determined that defendant’s petition therefore failed to set forth a prima facie case of eligibility regarding the Vehicle Code conviction, and the court denied the request for a hearing.
III. DISCUSSION
Defendant contends that a felony conviction for theft under Vehicle Code section 10851(a) may be redesignated as misdemeanor petty theft under section 490.2. He further argues that he was convicted of a theft under Vehicle Code section 10851(a) for taking a vehicle worth less than $950, and that therefore his offense should have been redesignated as a misdemeanor.
The Attorney General contends that a violation of Vehicle Code section 10851 is not an offense that may be redesignated as a misdemeanor under Proposition 47. The Attorney General does not address whether defendant’s Vehicle Code section 10851 offense was based on the theft of a vehicle, nor does the Attorney General address whether the value of the vehicle was $950 or less.
While this appeal was pending, the California Supreme Court in Page determined that “Proposition 47 makes some, though not all, section 10851 defendants eligible for resentencing.” (Page, supra, 3 Cal.5th at p. 1184.) Specifically, the court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor “if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle.” (Page, supra, at p. 1187, italics added; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for redesignation after the sentence has been completed].)
The California Supreme Court explained that a person who has been convicted of grand theft is “clearly eligible” for resentencing under section 1170.18 if the value of the property taken was $950 or less. (Page, supra, 3 Cal.5th at p. 1182; see § 490.2, subd. (a).) The court observed that “while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under section 10851, it is, in effect, a form of grand, rather than petty, theft. [Citations.]” (Page, supra, at pp. 1186-1187, italics added.)
The California Supreme Court stated that “Vehicle Code section 10851 may be violated in several ways,” but that only a certain type of violation of that section constitutes theft of a vehicle. (Page, supra, 3 Cal.5th at p. 1180.) The court explained: “Theft . . . requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession.” (Id. at p. 1182.) “ ‘Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .’ [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [Citation.]” (Id. at p. 1183.) Consequently, “[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.” (Id. at p. 1180, italics added.) The California Supreme Court determined that it was therefore error for a court to conclude that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47. (Page, supra, at p. 1180.)
The California Supreme Court further explained that “[t]o establish eligibility for resentencing [or redesignation] on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less [citation], but also that 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, italics added & fn. omitted.)
In this case, regarding the factual issue of whether defendant’s Vehicle Code section 10851 conviction was based on a theft, defendant contended below and continues to contend on appeal that he committed the theft of a vehicle. The prosecutor did not address this factual issue in the trial court, and the Attorney General does not address this issue on appeal. Instead, they each contended that defendant’s Vehicle Code section 10851 conviction was categorically ineligible for redesignation as a misdemeanor.
The trial court also never reached the factual issue of whether defendant’s Vehicle Code section 10851 conviction was based on a theft, because the trial court determined that such convictions are categorically ineligible for redesignation as a misdemeanor. Under Page, which was decided after the trial court denied defendant’s petition in this case, the ruling was erroneous. We will therefore reverse the order denying the petition and remand the matter so the trial court can determine the merits of the petition.
IV. DISPOSITION
The May 2, 2017 order denying defendant’s petition to have his felony conviction for violating Vehicle Code section 10851, subdivision (a) (count 1) redesignated as a misdemeanor pursuant to Penal Code section 1170.18 is reversed, and the matter is remanded for consideration of the merits of the petition.






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.