Filed 5/18/18 P. v. Cruder CA5
Opinion on remand from Supreme Court


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DESIREE ALAYNA CRUDER,

Defendant and Appellant.

F072625

(Super. Ct. No. F13903072)


OPINION


THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jon Nick Kapetan, Judge.
Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Raymond L. Brosterhouse II and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Desiree Alayna Cruder appeals from the denial of her petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on her conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that her conviction under section 10851 is eligible for resentencing under Proposition 47 generally, that her petition factually demonstrated eligibility, and that the trial court should have permitted her the opportunity to offer evidence regarding the value of the stolen vehicle. For the reasons set forth below, we affirm without prejudice to the filing of a new petition.
FACTUAL AND PROCEDURAL BACKGROUND
On April 1, 2013, the victim in this case reported her 1993 green Ford Escort had been stolen from the front of her residence. On April 2, 2013, at approximately 1:32 a.m., a Fresno Police Department officer conducted a traffic stop after spotting the stolen vehicle. Appellant was the sole occupant of the vehicle. When questioned, appellant admitted to stealing the vehicle.
On December 19, 2013, appellant pled nolo contendere to one count of unlawfully driving or taking a vehicle. Appellant received a five-year sentence.
On March 19, 2015, appellant filed a one-page petition for resentencing under Proposition 47. No opposition was filed and, at least according to the record provided on appeal, no hearing was held on appellant’s petition. Rather, the trial court denied appellant’s petition with prejudice on the ground appellant was ineligible for relief “as his or her conviction(s) do not qualify for relief” under the relevant statutory code.
This appeal timely followed. In our initial opinion, we affirmed appellant’s conviction. However, following an appeal to our Supreme Court, the case was remanded with instructions to reconsider our opinion in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
DISCUSSION
Appellant argues that, on its face, a violation of section 10851 is a theft offense, subject to resentencing under Penal Code section 1170.18. Appellant further argues that treating a conviction for theft of an automobile under section 10851 as a felony while other similar property thefts are treated as misdemeanors under Penal Code section 490.2 would create constitutional difficulties by violating equal protection principles. In her supplemental briefing, appellant contends she is entitled to an opportunity to demonstrate eligibility under Page.
In our prior opinion in this matter, we relied upon our decision in People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), disapproved in part by Page, supra, 3 Cal.5th at page 1187, footnote 4, to conclude appellant’s conviction under section 10851 was not categorically defined as a theft offense and thus, the mere fact of conviction was insufficient to support resentencing. In Page, our Supreme Court explained that “Proposition 47 makes some, though not all, section 10851 defendants eligible for resentencing: A defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft—taking a vehicle with the intent to permanently deprive the owner of possession—could (if the vehicle was worth $950 or less) receive only misdemeanor punishment pursuant to [Penal Code] section 490.2 and is thus eligible for resentencing under [Penal Code] section 1170.18.” (Page, supra, 3 Cal.5th at p. 1184.) Under the Supreme Court’s analysis, if a defendant can demonstrate conviction under the theft portion of section 10851 relating to a vehicle worth less than $950, they are eligible for resentencing under Proposition 47.
In her supplemental briefing, appellant does not allege she has properly demonstrated eligibility for resentencing. Rather, appellant contends she is in a similar position to the defendant in Page, arguing that despite any failures in her first petition she should be provided the opportunity to file a new petition demonstrating facts rendering her eligible for resentencing. The People oppose this request, arguing appellant’s failure to demonstrate eligibility in the first instance is determinative. However, the Supreme Court’s opinion in Page does not support the People’s position. (Page, supra, 3 Cal.5th at p. 1189 [“But as the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and as neither had yet been judicially articulated when defendant submitted his petition for recall, petitioner is entitled to an opportunity to file a new petition meeting the statutory requirements. Such a petition should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under [Penal Code] section 1170.18.”].)
Accordingly, in our independent review we conclude appellant’s petition did not demonstrate eligibility under the standard articulated in Page, but affirm without prejudice to appellant filing a new petition demonstrating eligibility. As Page did not overrule our determination in Sauceda that there is no equal protection violation in the disparate treatment of punishments for those convicted under section 10851, and appellant does not renew her equal protection argument, we affirm our prior conclusion that no equal protection violation exists. (See Sauceda, supra, 3 Cal.5th at pp. 644–650.)
DISPOSITION
The order is modified to provide that the superior court’s order denying appellant’s petition is affirmed without prejudice to consideration of a petition providing evidence of her eligibility.