Filed 4/24/18 P. v. Haywood CA3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

PHARAOH HAYWOOD,

Defendant and Appellant.
C078609

(Super. Ct. No. 95F04059)

OPINION ON TRANSFER



In January 2015, defendant Pharaoh Haywood filed a petition in propria persona pursuant to Penal Code section 1170.18 to redesignate as a misdemeanor his 1996 felony conviction for the unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)). He waived personal appearance if the matter was not contested.
The record does not contain any information about the prior conviction other than its superior court case number (95F04059). We take judicial notice of our records sua sponte, which include separate appeals from two codefendants under that case number. (Evid. Code, § 452, subd. (d).) We do not have any record of defendant appealing this judgment. Those opinions indicate defendant was part of a quartet involved in the murder and attempted murder of two men, the kidnapping of the surviving victim, and the taking of the car of another victim. Defendant apparently was convicted of kidnapping the surviving victim and unlawful taking/driving. (People v. Gordon (Dec. 23, 1998, C025388) [nonpub. opn.]; People v. Ceasar (Oct. 14, 1997, C025156) [nonpub. opn.].) A fourth codefendant apparently was acquitted on all counts. (People v. Gordon (Mar. 23, 2000, C033460) [nonpub. opn.] [appeal on resentencing].) We also take judicial notice sua sponte of the records of the superior court under this case number, which show that defendant received a four-year state prison sentence. (Evid. Code, § 452, subd. (d).) Even though defendant has completed his sentence for the 1996 conviction, section 1170.18, subdivision (f) permits him to seek redesignation of the felony conviction.
The trial court, acting ex parte, appointed a public defender. It then summarily denied the petition in a minute order “due to ineligibility based due to: [c]urrent [sic] conviction(s).” Defendant appealed. (Cf. Teal v. Superior Court (2014) 60 Cal.4th 595, 597 [§ 1170.126 eligibility is appealable].)
In the original appeal, defendant argued that even if unlawful taking/driving of a vehicle is not expressly included among the offenses “in accordance with” which he can be resentenced to a misdemeanor (§ 1170.18, subd. (a)), we must construe section 1170.18 as including it, and the trial court erred as a result in summarily denying his petition. We rejected his claim and affirmed the order denying the redesignation petition. The Supreme Court granted review pending its disposition of the issue. (People v. Haywood (2015) 243 Cal.App.4th 515, review granted Mar. 9, 2016, S232250.)
The Supreme Court has now issued its decision in People v. Page (2017) 3 Cal.5th 1175 (Page), which concluded a conviction for unlawfully taking a vehicle valued at less than $950 is eligible for resentencing under section 1170.18; unlawful driving, on the other hand, is not an eligible offense. (Page, supra, at pp. 1180, 1187.) It has transferred the matter back to this court for reconsideration in light of Page.
As noted, the record is silent regarding whether the 1996 conviction is premised on an unlawful taking or on an unlawful driving (although it would appear from the appeals of his codefendants that a taking was at issue), or the value of the vehicle at issue (which was not a material fact prior to Page). Under Page, we are directed as a result to affirm the order without prejudice to defendant’s filing a new petition alleging the facts that make the conviction eligible for resentencing. (Page, supra, 3 Cal.5th at p. 1189.) As we do not have anything further to reconsider, we dispense with any additional facts or discussion.
DISPOSITION
The order disposing of defendant’s petition is affirmed without prejudice to a new petition alleging facts that make the 1996 conviction for unlawful taking or driving eligible for resentencing.



BUTZ , Acting P. J.



We concur:



MAURO , J.



MURRAY , J.