Filed 1/9/18 P. v. Kutterer CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,
Plaintiff and Respondent,
v.
MARCUS KUTTERER,
Defendant and Appellant.

A148187

(Solano County
Super. Ct. No. FCR304637)


Defendant Marcus Kutterer appeals from the trial court’s denial of a petition to recall his sentence pursuant to Penal Code section 1170.18 and to reduce his prior conviction for unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a), from a felony to a misdemeanor. We shall reverse and remand for further proceedings in light of the Supreme Court’s recent decision in People v. Page (2017) 3 Cal.5th 1175 (Page).
I. BACKGROUND
On January 30, 2014, Kutterer pleaded nolo contendere to one count of the unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) On February 27, 2014, the court sentenced him to the upper term of three years, one of which he was required to serve with two years suspended, and he was placed on mandatory supervision. Kutterer violated the terms of his mandatory supervision seven times between July 2014 and March 2016, before being remanded to county jail to serve the remainder of his sentence.
The probation report prepared in anticipation of the original sentencing summarized the underlying offense, basing its summary on the police report of the incident. The stolen car was a 1993 gold Honda Accord. Using the car’s LoJack tracking device, police located the vehicle outside a residence in Fairfield. Upon the arrival of officers at that residence, Kutterer attempted to flee as the officers approached the house but was quickly detained. During questioning, he admitted involvement in the theft of the vehicle. The car was then returned to its owner. Kutterer later told the probation department he had been driving in a car with a friend at 3:00 a.m. when he saw the parked car and decided to steal it. He got the car open and took it.
Kutterer filed a petition for recall of sentence and request for resentencing pursuant to section 1170.18, subdivision (a), on March 28, 2016. The district attorney opposed the petition, arguing, “Violations of Vehicle Code [section] 10851 are not listed among the charges eligible for resentencing pursuant to Proposition 47.” On April 18, 2016, the court found the value of the vehicle which Kutterer took to be under $950, but nonetheless denied the petition because it concluded Vehicle Code section 10851, subdivision (a), is not an offense eligible for resentencing. Kutterer appealed.
II. DISCUSSION
In November 2014, Proposition 47, the Safe Neighborhoods and Schools Act, was enacted by California voters. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced some drug- and theft-related offenses to misdemeanors unless they were committed by ineligible defendants, by adding sections 490.2 and 1170.18 to the Penal Code, among other provisions. (Id. at pp. 1091–1092.)
Section 490.2, subdivision (a), in relevant part, states, “[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .” Section 1170.18 is a resentencing provision which permits “a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47 [to] petition for a recall of that sentence” and allows “persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 [to] file an application with the trial court to have their felony convictions ‘designated as misdemeanors.’ ” (Rivera, supra, 233 Cal.App.4th at pp. 1092–1093.)
In Page, supra, 3 Cal.5th at pages 1183–1184, the California Supreme Court resolved a split in authority on the dispositive question presented in this case: Whether those, like Kutterer, who were serving felony sentences for violation of Vehicle Code section 10851, subdivision (a), at the time Proposition 47 was enacted are entitled to reduction of their sentences under section 1170.18, even though violation of Vehicle Code section 10851, subdivision (a), is not expressly enumerated as an offense eligible for reduction by the terms of section 1170.18. The answer to that question is in some cases yes and in some cases no, depending on the showing a Proposition 47 petitioner is able to make about the nature of the underlying offense.
“Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner’s consent, and ‘with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.’ ” (Page, supra, 3 Cal.5th at p. 1182.) While a conviction for merely driving a vehicle without the owner’s consent or taking it temporarily with no intent to permanently deprive does not constitute theft, and therefore is not Proposition 47 eligible, a “ ‘defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession’ has been convicted of stealing the vehicle. It follows that Proposition 47 makes some, though not all, [Vehicle Code] 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 section 490.2 and is thus eligible for resentencing under section 1170.18.” (Page, supra, 3 Cal.5th at p. 1184.)
The burden lies on the petitioner to prove eligibility for resentencing under section 1170.18. (Evid. Code, § 500; People v. Romanowski (2017) 2 Cal.5th 903, 916.) Kutterer went partway towards meeting that burden with a showing, accepted by the trial court, that the vehicle involved here was worth less than $950. The probation report suggests that he may be able to make the additional showing now required under Page that he unlawfully took the vehicle with the intent to deprive the owner of possession permanently, but the trial court, having ruled categorically that Vehicle Code section 10851 is not a Proposition 47 eligible offense, has not addressed the issue. Nor has it addressed the further issue whether, under section 1170.18, subdivision (b), even if Kutterer’s offense is Proposition 47 eligible, he may pose an unreasonable risk to public safety, which, in the court’s discretion, may render him ineligible for the relief he seeks for that reason. We intimate no view on either issue.
III. CONCLUSION AND DISPOSITION
In light of Page, the denial of Kutterer’s petition for resentencing is reversed, and the case is remanded for further proceedings consistent with this opinion.






_________________________
Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.