Filed 4/30/18 P. v. Mahoney CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SEAN PATRICK MAHONEY,

Defendant and Appellant.


E065891

(Super.Ct.No. FVI1102874)

OPINION


APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorney Generals, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Daniel J. Hilton and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sean Patrick Mahoney appeals from the trial court’s order denying his petition under Penal Code section 1170.18 to have his felony conviction for driving or taking a vehicle under Vehicle Code section 10851, subdivision (a), reduced to a misdemeanor. We affirm the order without prejudice to filing a new petition pursuant to People v. Page (2017) 3 Cal.5th 1175 (Page).
FACTS AND PROCEDURE
On December 14, 2011, defendant drove or took a 1992 Honda Prelude. He was previously convicted of driving or taking a vehicle in 1995.
On December 22, 2011, the People filed a felony complaint charging defendant in count 1 with receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)) and in count 2 with unlawfully driving or taking the same motor vehicle (Veh. Code, § 10851, subd. (a)). The People alleged as to both counts that defendant had a prior conviction for Vehicle Code Section 10851, subdivision (a), and that defendant had eight prison term priors (Pen. Code, § 667.5, subd. (b)).
On January 3, 2012, defendant pled no contest to count 2 and admitted the prior conviction for unlawfully driving or taking a vehicle. As agreed, the court dismissed count 1 and struck the eight prison term priors. Also as agreed, the court sentenced defendant to the middle term of three years in county prison.
On November 4, 2014, voters enacted Proposition 47, entitled “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or “wobblers,” unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Proposition 47 provides for any defendant currently “serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing” under the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a).) Proposition 47 further provides that “[u]pon receiving a petition under subdivision (a) [i.e., defendant’s petition for recall of sentence], the court shall determine whether the petitioner satisfies the criteria in subdivision (a).” (§ 1170.18, subd. (b).)
On March 10, 2016, defendant filed a petition for resentencing asking to have his conviction for taking or driving a vehicle reduced to a misdemeanor. Also on that date, the People filed a response, arguing that Vehicle Code section “10851 is not affected by Prop. 47.” After a hearing held on April 15, 2016, the trial court denied the petition. During the hearing, defense counsel indicated that “this was a 1992 Honda Prelude, and according to Kelley Blue Book the value of the vehicle would be approximately $706.”
This appeal followed.
Following this court’s February 28, 2017 opinion in this case affirming the trial court’s order, defendant petitioned for review by the Supreme Court, which issued a “grant and hold” order deferring further briefing pending its decision in Page (case No. S241154, review granted May 10, 2017). On November 30, 2017, the Supreme Court issued its opinion in Page, supra, 3 Cal.5th 1175. On March 21, 2018, the Supreme Court transferred this case back to this court for reconsideration in light of Page. On March 22, 2018, this court vacated its opinion and invited supplemental briefing, which the parties have provided.
DISCUSSION
1. Vehicle Code section 10851 and Proposition 47
The parties and this Court agree that, under Page, a defendant convicted of Vehicle Code section 10851 is eligible for resentencing under Proposition 47 where the violation involves (1) the actual theft of the vehicle (2) whose value is $950 or less.
Unlawfully driving or taking a vehicle does not appear on the list of felonies reduced to misdemeanors by Proposition 47. (§ 1170.18, subd. (a).) However, among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, is petty theft, defined as “obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed . . . $950.” (§ 490.2, italics added.) The Supreme Court in Page reasoned that, “An automobile is personal property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $ 950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.’ ” (Page, supra, 3 Cal.5th at p. 1183.) “A defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft . . . 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 [Penal Code] section 1170.8.” (Id. at p. 1184.)
2. Affirm Without Prejudice or Reverse and Remand?
Defendant argues this court should reverse the trial court’s denial of his motion and order his conviction for Vehicle Code section 10851, subdivision (a), be reduced to a misdemeanor. The People counter that we should affirm the court’s order without prejudice to the court considering a subsequent petition for Proposition 47 relief. Under Page, the People are correct.
Page does not change the established rule that “[a] defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility.” (Page, supra, 3 Cal.5th at p. 1188.) Here, the record does not affirmatively establish both required prongs for resentencing—that defendant stole the 1992 Honda Prelude, and that the vehicle was worth $950 or less. Under Page, therefore, the court properly denied the petition. (Id. at p. 1189.) However, also under Page and the authorities it cites, defendant is entitled to file a new petition that meets the statutory requirements as fleshed out in the courts subsequent to the enactment of Proposition 47. (Ibid.)
DISPOSITION
The court’s order denying the petition is affirmed without prejudice to the trial court subsequently considering a properly filed petition providing evidence of defendant’s eligibility for relief under Proposition 47. (See Page, supra, 3 Cal.5th at pp. 1180, 1189; People v. Perkins (2016) 244 Cal.App.4th 129, 139-140; People v. Sherow (2015) 239 Cal.App.4th 875, 881.).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


CUNNISON
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.