Filed 4/24/18 P. v. Johnston 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Calaveras)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

TONY DALE JOHNSTON,

Defendant and Appellant.
C080099

(Super. Ct. Nos.
F2763, F2825, 11F5155)

OPINION ON TRANSFER





In 2003, defendant Tony Dale Johnston entered guilty pleas to unlawful possession of a firearm (case No. F2763), and to first degree burglary, unlawfully taking or driving a vehicle, and arson of a vehicle (case No. F2825). The trial court sentenced him to state prison for over six years in the two matters. In 2011, defendant entered guilty pleas to possessing methamphetamine and receiving stolen property (case No. 11F5155). The trial court sentenced him to a two-year state prison term.
In May 2015, defendant filed a petition in propria persona to reduce these felony convictions to misdemeanors (as well as a 1999 conviction for receiving stolen property that is not pertinent to this appeal) pursuant to Penal Code section 1170.18 (hereafter section 1170.18). He asked that the trial court “broadly and liberally” construe section 1170.18 to apply to all of these offenses, even if they did not all “fi[t] squarely into [the] mold set forth in this act.” The petition does not provide any further information about the circumstances underlying the convictions. Defendant noted that he was presently serving an 11-year prison term for a 2014 conviction in a Tuolumne County case for criminal threats, and asserted that drugs or alcohol had fueled all of his crimes, stemming from his bipolar disorder, hyperactivity, and depression.
The prosecution opposed reduction of the 2003 convictions because they were not eligible offenses. It did not object to reduction of the 2011 methamphetamine conviction, but stated the value of the property at issue in the other 2011 conviction was a vehicle worth more than $950.
The trial court denied relief for the 2003 convictions as facially ineligible, reduced the 2011 methamphetamine conviction to a misdemeanor, and after holding a hearing (at which defendant appeared through counsel) denied relief on the other 2011 conviction because it involved property valued at more than $950. Defendant appealed from the adverse rulings in the three cases.
Defendant originally challenged only the ruling denying relief as to his 2003 conviction for unlawfully taking or driving a vehicle (case No. F2825). Defendant also noted that the trial court failed to issue an amended abstract of judgment for the 2011 convictions (case No. 11F5155), a point the People conceded. We originally affirmed the order in all respects, concluding that unlawfully taking or driving a vehicle was not an eligible offense under section 1170.18, and directed the trial court to issue a corrected abstract of judgment to reflect the reduction of the 2011 methamphetamine conviction to a misdemeanor. The Supreme Court granted review pending its disposition of the issue. (People v. Johnston (2016) 247 Cal.App.4th 252, review granted Jul. 13, 2016, S235041.)
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, 3 Cal.5th 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 2003 conviction is premised on an unlawful taking or on an unlawful driving, or the value of the 1995 Jeep Wrangler. Page directs that under such circumstances we must affirm the order without prejudice to a new petition from defendant establishing the facts that would 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 that establishes facts making the 2003 conviction for unlawful taking or driving eligible for resentencing. The trial court shall prepare a corrected abstract of judgment to


conform to its ruling on the 2011 convictions, and forward a certified copy to the Department of Corrections and Rehabilitation.



BUTZ , J.



We concur:



ROBIE , Acting P. J.



DUARTE , J.