Filed 10/11/18 P. v. James CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Masala James appeals the denial of his petition for resentencing under Penal Code section 1170.18, subdivision (f), part of Proposition 47, the Safe Neighborhoods and Schools Act of 2014. His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable issues and affirm.

I. FACTS AND PROCEDURAL HISTORY

On July 29, 1991, a 1990 red Honda Civic was stolen. On August 30, 1991, appellant was observed by officers driving the stolen car. Appellant sped away when the officers tried to pull him over, reaching speeds of 60-70 miles per hour in a residential area. He got out of the car during the chase and fled on foot, but was apprehended. Several stolen items were found in the car.

An information was filed after a preliminary hearing charging appellant with taking or driving a stolen vehicle (Veh. Code, § 10851), receiving stolen property (Pen. Code, § 496) and evading a peace officer (Veh. Code, § 2800.2), and alleging four prior prison term enhancements (Pen. Code, § 667.5, sub. (b)). On October 15, 1991, appellant pled no contest to unlawful taking or driving of a vehicle in exchange for a state prison term of three years and immediate sentencing.

On November 4, 2014, California voters passed Proposition 47, which reduced certain theft and drug related offenses from felonies or wobblers to misdemeanors. (People v. Buycks (2018) 5 Cal.5th 857, 870.)

On February 5, 2018, appellant filed an application seeking to reduce his Vehicle Code section 10851 conviction to a misdemeanor. On February 26, 2018, the court denied the application. “Ineligible Vehicle Code sec. 10851. Not applicable under Prop. 47.” This appeal follows.

II. DISCUSSION

As required by People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appointed counsel has filed a Wende/Anders brief raising no issues, that appellant has been advised of his right to file a supplemental brief, and that appellant did not file such a brief. His notice of appeal identified People v. Page (2017) 3 Cal.5th 1175 (Page), and we have considered that authority. We have independently reviewed the entire record for potential error and find none.

The passage of Proposition 47 created section 1170.18, subdivision (f) of which provides, “A person who has competed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (Pen. Code, § 1170.18, subd. (f).)

In Page, supra, 3 Cal.5th at pages 1179, 1189, our high court held that Vehicle Code section 10851 convictions “are not categorically ineligible for resentencing” under section 1170.18 although they are not specifically enumerated in Proposition 47. Section 10851 convictions based on theft of a vehicle are eligible; convictions based on post-theft driving or taking without the intent to permanently deprive the owner of possession are not. (Id. at p. 1188–1189.)

Here, the transcript of the preliminary hearing shows appellant drove a stolen car about one month after it was taken. When there is post-theft driving following a substantial break in time after the vehicle has been stolen, the conviction is based on the driving rather than the theft and the defendant cannot establish eligibility under Page. (See Page, supra, 3 Cal.5th at p. 1189.) The Supreme Court is currently considering whether equal protection or the avoidance of absurd consequences requires that misdemeanor sentencing under Proposition 47 extend not only to those convicted of theft under Vehicle Code section 10851, but also those convicted of driving a vehicle. (People v. Bullard (Dec. 12, 2016, E065918) [nonpub. opn.], review granted Feb. 22, 2017, S239488.) Regardless of what it decides, the petition was properly denied in this case because appellant did not allege that the Honda he drove (one year old at the time) was worth less than $950. “A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility . . . . ” (Page at p. 1188.) The lack of evidence concerning the vehicle’s value shows the petition was properly denied at that time. (Id. at pp. 1189–1190.)

We are satisfied that appellant’s appointed attorney has fully complied with the responsibilities of appellate counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 283.)

III. DISPOSITION

The order denying the application under Penal Code section 1170.18 is affirmed.

NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.

(A154230)