Filed 4/30/18 P. v. Mendoza CA6
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL ANTONIO MENDOZA,

Defendant and Appellant.
H042293
(Santa Clara County
Super. Ct. No. EE014970)
This case concerns defendant Manuel Antonio Mendoza’s petition for resentencing pursuant to Penal Code section 1170.18, which was added in 2014 by Proposition 47 (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74, eff. Nov. 5, 2014; see Cal. Const., art. II, § 10, subd. (a)), also known as “the Safe Neighborhoods and Schools Act.” (Voter Information Guide, supra, text of Prop. 47, § 1, p. 70). Proposition 47 “reduced the punishment for certain theft- and drug related offenses, making them punishable as misdemeanors rather than felonies.” (People v. Page (2017) 3 Cal.5th 1175, 1179 (Page).) “To that end, Proposition 47 amended or added several statutory provisions, including new Penal Code section 490.2, which provides that ‘obtaining any property by theft’ is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. [Citation.] A separate provision of Proposition 47, codified in Penal Code section 1170.18, subdivision (a), establishes procedures under which a person serving a felony sentence at the time of Proposition 47’s passage may be resentenced to a misdemeanor term if the person ‘would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense.’ (Pen. Code, § 1170.18, subd. (a).)” (Ibid.)
Defendant filed his pro se petition in March 2015, not long after Proposition 47’s effective date. Defendant had been convicted of several crimes, including a violation of Vehicle Code section 10851, subdivision (a), and sought resentencing as to all offenses. The trial court concluded defendant was categorically ineligible for resentencing and denied relief under section 1170.18. We affirmed the order. (People v. Mendoza (Feb. 29, 2016, H042293 [nonpub. opn.]).)
The California Supreme Court granted review in this case, but it deferred action pending consideration and disposition of a related issue in People v. Page, S230793. (See People v. Mendoza (May 11, 2016, S233575).) The court has now transferred the matter to this court for reconsideration in light of Page, supra, 3 Cal.5th 1175.
In Page, the Supreme Court concluded that “the lower courts erred in holding that a defendant with a Vehicle Code section 10851 conviction is categorically ineligible for resentencing under Proposition 47.” (Page, supra, 3 Cal.5th at p. 1180.) It held that “[a] person convicted before Proposition 47’s passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less.” (Ibid., italics added.)
The Supreme Court explained: “ ‘[A] defendant convicted under [Vehicle Code] section 10851[, subdivision] (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, 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, second italics added.) It clarified that, “[t]o establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less (§ 490.2, subd. (a)), but also that the conviction was based on theft of the vehicle rather than on posttheft driving (see [People v. Garza (2005) 35 Cal.4th 866,] 871) or on a taking without the intent to permanently deprive the owner of possession (see People v. Riel [(2000)] 22 Cal.4th [1153,] 1205).” (Page, supra, 3 Cal.5th at p. 1188, fn. omitted, italics added.)
The Supreme Court observed in Page that, “because defendant’s uncounseled petition in this case provides no information concerning the basis for his Vehicle Code section 10851 conviction, it fail[ed] to establish either that defendant was convicted for theft of the vehicle or that the vehicle was worth $950 or less.” (Page, supra, 3 Cal.5th at p. 1180.) It concluded that the defendant was “entitled to the opportunity to allege and prove his eligibility for resentencing” and, therefore, it “modif[ied] the judgment of the Court of Appeal to provide that its affirmance of the superior court’s denial order [was] without prejudice to the filing of a new petition.” (Ibid.)
Like the petition for resentencing in Page, defendant’s petition was “uncounseled” and “provide[d] no information concerning the basis for his Vehicle Code section 10851 conviction.” (Page, supra, 3 Cal.5th at p. 1180.) Under the guidance of Page, we will now affirm the superior court’s order without prejudice to the filing of a new petition for resentencing pursuant to section 1170.18. The Page decision makes it unnecessary for us to reach defendant’s alternative equal protection argument.
DISPOSITION
The superior court’s order denying defendant’s petition for resentencing pursuant to section 1170.18 is affirmed without prejudice to consideration of a petition providing evidence of his eligibility for resentencing.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



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BAMATTRE-MANOUKIAN, J.



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MIHARA, J.