Filed 4/9/18 P. v. Gratiano CA4/2
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

LAUREN ANTHONY GRATIANO,

Defendant and Appellant.


E066820

(Super.Ct.No. FVI1101688)

OPINION ON REMAND


APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Lauren Anthony Gratiano appeals the denial of his Proposition 47 resentencing petition. (Pen. Code, § 1170.18.) The petition arose from his 2011 felony conviction for unlawfully taking or driving a vehicle. (Veh. Code, § 10851.) The trial court ruled that Vehicle Code section 10851 convictions were ineligible for resentencing and denied the petition. After defendant’s petition was denied, the Supreme Court decided People v. Page (2017) 3 Cal.5th 1175 (Page), which held that Vehicle Code section 10851 convictions are not categorically ineligible for resentencing under Penal Code section 1170.18. (Page, at p. 1189.)
Pursuant to Page, supra, 3 Cal.5th 1175, we affirm the denial of defendant’s petition, without prejudice to the trial court’s consideration of a petition providing evidence of his eligibility.
PROCEDURAL BACKGROUND
On July 25, 2011, defendant was charged by felony complaint with receiving stolen property (Pen. Code, § 496d, subd. (a), count 1). The complaint also alleged that he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) On August 8, 2011, the complaint was amended by interlineation to add a charge of attempted unlawful taking or driving of a vehicle (Pen. Code, § 664; Veh. Code, § 10851, subd. (a), count 2). Defendant entered a plea agreement and pled guilty to count 2. In accordance with the agreement, the court sentenced him to one year in state prison and dismissed count 1 and the prison prior allegations.
On July 20, 2016, defendant filed a Proposition 47 petition, alleging that he had completed his sentence and requesting to have his felony designated as a misdemeanor. (§ 1170.18, subd. (f).) On September 9, 2016, the court found that defendant’s offense did not qualify for relief under Proposition 47 and denied the petition. It did not consider whether the facts of this case supported reduction of the conviction to a misdemeanor or reach the issue of the value of the stolen vehicle.
ANALYSIS
Defendant’s Petition Was Properly Denied
Defendant argues that the court erred in denying his petition on the basis that a conviction of Vehicle Code section 10851 is ineligible for reduction to a misdemeanor under Proposition 47. He contends this case should be remanded for the trial court to make findings regarding the value of the stolen vehicle and whether his conviction was based on theft. We affirm the trial court’s denial without prejudice to its consideration of a new petition providing evidence of his eligibility.
A. A Defendant with a Vehicle Code Section 10851 Conviction is Not Categorically Ineligible for Relief Under Proposition 47
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 allows convicted felons to seek reduced sentences for nonserious, nonviolent theft and drug crimes. (§ 1170.18, subd. (b).) Our Supreme Court recently held that “[a] defendant who, at the time of Proposition 47’s passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is . . . eligible for resentencing under [Penal Code] section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle.” (Page, supra, 3 Cal.5th at p. 1187.)
B. Defendant Failed to Establish He Was Convicted of Vehicle Theft or That the Value of the Stolen Vehicle Was Under $950
“A defendant seeking resentencing under [Penal Code] section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility. [Citations.] To establish eligibility for resentencing 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.” (Page, supra, 3 Cal.5th at p. 1188.) In other words, Vehicle Code section 10851 convictions are eligible for resentencing if the petitioning defendant shows: (1) the vehicle was worth $950 or less; and (2) the sentence was imposed for theft of the vehicle rather than posttheft driving of the vehicle. (Page, at p. 1188.)
The trial court here erred in holding defendant’s Vehicle Code section 10851 conviction categorically ineligible for relief under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) Nonetheless, the court properly denied the petition since the record is inadequate regarding the two factual showings that must be made under Page. Defendant’s petition did not establish that he was convicted of vehicle theft under Vehicle Code section 10851; in fact, his attorney cited the wrong code—Penal Code section 496d, subdivision (a)—in the petition. At the hearing on the petition, the court recognized that defendant’s plea was to Vehicle Code section 10851. However, the record is unclear as to whether his conviction was based on theft of the vehicle or posttheft driving of the vehicle. Defendant asserts that the plea form he executed states he was pleading guilty to “PC664/VC 10851 attempt taking motor vehicle.” Yet, we note the probable cause declaration submitted by the arresting officer simply states that defendant was observed “driving a reported stolen vehicle.” Furthermore, defendant’s petition did not include any evidence to show that the value of the stolen vehicle was $950 or less.
We conclude that, under Page, supra, 3 Cal.5th 1175, defendant is entitled to the opportunity to prove his eligibility for relief under Proposition 47. (Id. at p. 1189.)
DISPOSITION
The order denying defendant’s Proposition 47 petition is affirmed without prejudice to the trial court’s consideration of a petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


McKINSTER
J.


We concur:


RAMIREZ
P. J.


MILLER
J.