Filed 4/24/18 P. v. Pifer CA4/2
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN ANDREW PIFER,

Defendant and Appellant.


E064119

(Super.Ct.No. FVI022671)

OPINION


APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
In 2005, defendant and appellant Brian Andrew Pifer pled guilty to attempted unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); Pen. Code, § 664) with a prior conviction for receipt of a stolen motor vehicle (Pen. Code, §§ 496d, subd. (a), 666.5), and he admitted one prison prior (Pen. Code, § 667.5, subd. (b)). Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.)
In a previous nonpublished opinion, we affirmed the trial court’s denial of defendant’s petition for resentencing pursuant to Proposition 47. (People v. Pifer (Sept. 23, 2016, E064119 [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Ca1.5th 1175 (Page). For the reasons stated below, we affirm the trial court’s order denying defendant’s petition without prejudice to consideration of a subsequent petition providing evidence of his eligibility.
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
On October 7, 2005, defendant attempted to drive and take a 1988 Honda CRX without the consent of the vehicle’s owner, and with the intent to either permanently or temporarily deprive the owner of title to and possession of the vehicle. On October 27, 2005, defendant pled guilty to attempted unlawful driving or taking of a vehicle with a prior conviction for receipt of a stolen vehicle and admitted a prison prior for second degree commercial burglary.
On May 1, 2015, defendant filed a petition for resentencing pursuant to Penal Code section 1170.18. The trial court denied the petition, explaining that defendant “does not satisfy the criteria in [Proposition 47] and is not eligible for resentencing” “[b]ecause [Vehicle Code section] 10851 and attempt[ed] [Vehicle Code section] 10851 [are] not covered by Prop[osition] 47 . . . .” In our previous opinion in this matter, we affirmed the trial court’s ruling, finding that the trial court correctly determined defendant to be ineligible for recall of sentence and resentencing pursuant to Penal Code section 1170.18. (People v. Pifer, supra, E064119, pp. 6-8.) Defendant sought review in the California Supreme Court. In an order filed March 21, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page, supra, 3 Ca1.5th 1175. On March 22, 2018, we issued an order vacating our previous opinion and inviting the parties to submit supplemental briefing. Both the People and defendant did so.
II. DISCUSSION
In Page, the Supreme Court held that Vehicle Code section 10851 convictions “are not categorically ineligible for resentencing” under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) The defendant seeking resentencing bears the burden of establishing his or her eligibility by showing that the vehicle was worth $950 or less and the conviction “was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession [citation].” (Id. at p. 1188, fn. omitted.) The petition at issue in Page “included no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle’s value was $950 or less.” (Id. at p. 1189.) On that basis, the Supreme Court found the defendant’s petition was properly denied, but that he was “entitled to an opportunity to file a new petition meeting the statutory requirements.” (Ibid.)
In the present case, defendant’s petition was not supported by any evidence of the vehicle’s value. Furthermore, the defendant’s plea form indicates that he pled guilty to count 1, which was charged as “attempted unlawful driving or taking of a vehicle.” However, nothing in the record of conviction establishes whether that taking was with or without the intent to permanently deprive the owner of possession. Therefore, like the defendant in Page, defendant’s petition was properly denied, but he is entitled to an opportunity to file a new petition meeting the statutory requirements.
III. DISPOSITION
The trial court’s order denying defendant’s petition is affirmed without prejudice to consideration of a petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORT


RAMIREZ
P. J.
We concur:

SLOUGH
J.

FIELDS
J.