Filed 4/16/18 P. v. Rios CA6
Opinion on transfer 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

CESAR MARCOS RIOS,

Defendant and Appellant.
H043450
(Monterey County
Super. Ct. No. SS141968A)
I. INTRODUCTION
This case is before us for a second time, after the California Supreme Court transferred it back to this court with directions to reconsider in light of the recent opinion in People v. Page (2017) 3 Cal.5th 1175 (Page).
In September 2014, defendant Cesar Marcos Rios pleaded no contest to a felony violation of Vehicle Code section 10851, subdivision (a) (hereafter Vehicle Code section 10851(a)), and admitted that he had suffered a prior strike conviction (Pen. Code, § 1170.12, subd. (c)(1)). The trial court sentenced defendant to two years eight months in prison.
In March 2016, the trial court denied defendant’s petition under section 1170.18, which was enacted as part of Proposition 47, to have his Vehicle Code section 10851(a) conviction resentenced to a misdemeanor. On appeal, defendant contends that the trial court erred by denying the petition.
In Page, the California Supreme Court determined that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor if (1) the conviction was based on the theft of a vehicle and (2) the vehicle was worth $950 or less. (Page, supra, 3 Cal.5th at p. 1180.) Because defendant’s petition failed to establish either ground, we will affirm the court’s order without prejudice to consideration of a new petition providing evidence of defendant’s eligibility.
II. BACKGROUND
In August 2014, defendant was charged by information with driving or taking a vehicle in violation of Vehicle Code section 10851(a) (count 1) and misdemeanor false identification to a police officer (§ 148.9, subd. (a); count 2). Regarding the Vehicle Code offense, the information alleged that on or about July 31, 2014, defendant “did unlawfully drive and take a certain vehicle, . . . [a] 1994 Honda Accord, . . . then and there the personal property of [the victim] without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.” The information also alleged that defendant had one prior strike conviction for a violation of section 186.22, subdivision (a) (§ 1170.12, subd. (c)(1)), and that he had served one prior prison term (§ 667.5, subd. (b)).
In September 2014, defendant pleaded no contest to count 1, a violation of Vehicle Code section 10851(a). The factual basis for his plea was that he “did unlawfully drive and take a vehicle . . . without the consent and with the intent either to permanently or temporarily deprive the owner of title and possession of the vehicle.” Defendant also admitted that he had suffered a prior strike conviction. The trial court sentenced defendant to two years eight months in prison and granted him 124 days of custody credits. The remaining count and enhancement were dismissed.
In November 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Page, supra, 3 Cal.5th at pp. 1179, 1181.) Proposition 47 “reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies.” (Page, supra, at p. 1179.) Proposition 47 also added section 490.2, which provides that “obtaining any property by theft,” where the value of the property taken is $950 or less, is petty theft and shall generally be punished as a misdemeanor. (§ 490.2, subd. (a).) In addition, Proposition 47 added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g).) A defendant is not eligible for resentencing or redesignation if he or she has suffered a specified prior conviction. (Id., subd. (i).)
In December 2015, defendant filed two petitions seeking to have his felony Vehicle Code section 10851(a) conviction treated as a misdemeanor. In the first petition, filed December 7, 2015, defendant requested, in a single sentence, that the court resentence him to a misdemeanor pursuant to section 1170.18, subdivision (a). In the second petition, which was on a preprinted form and filed on December 21, 2015, defendant stated that he had completed his sentence and requested redesignation as a misdemeanor pursuant to section 1170.18, subdivisions (f) and (g).
The prosecution filed opposition, contending that a Vehicle Code section 10851(a) offense is not eligible for resentencing or redesignation as a misdemeanor.
On March 29, 2016, a hearing was held on the matter. Defense counsel argued that defendant’s offense was a misdemeanor under section 490.2, which defines petty theft as theft of property worth $950 or less. (Id., subd. (a).) The trial court asked defense counsel whether he was “presenting evidence” that the vehicle was less than $950. Defense counsel responded that he “just came into this today” and requested “another date” if the court wanted evidence of value. The prosecution argued that a Vehicle Code section 10851 offense is not eligible for resentencing or redesignation as a misdemeanor, and thus the value of the vehicle was not “applicable in this case.” The court determined that Vehicle Code section 10851 “is not an eligible statute for the benefits of [section] 1170.18.” A written order denying defendant’s petition was filed on March 29, 2016.
III. DISCUSSION
Defendant contends that a conviction for violating Vehicle Code section 10851(a) may be resentenced to misdemeanor petty theft under section 490.2, subdivision (a). He further argues that to construe Proposition 47 otherwise would violate his federal and state constitutional rights to equal protection. Defendant also contends that it should be “presume[d]” that his conviction was based on an amount less than $950.
The Attorney General contends that a violation of Vehicle Code section 10851 is not an offense that may be resentenced to a misdemeanor under Proposition 47. The Attorney General contends that defendant has forfeited his equal protection claim by failing to raise it below, and that the claim also fails on the merits. Alternatively, the Attorney General argues that even if a Vehicle Code section 10851 offense may be resentenced to or redesignated as a misdemeanor, defendant failed to establish his eligibility for relief by showing that the value of the vehicle taken did not exceed $950.
A. A Vehicle Code Section 10851 Conviction May Be Eligible for Resentencing or Redesignation as a Misdemeanor Under Proposition 47
While this appeal was pending, the California Supreme Court in Page determined that “Proposition 47 makes some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing.” (Page, supra, 3 Cal.5th at p. 1184.) Specifically, the court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor “if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle.” (Page, supra, at p. 1187, italics added; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for redesignation after the sentence has been completed].)
The California Supreme Court explained that a person who has been convicted of grand theft is “clearly eligible” for resentencing under section 1170.18 if the value of the property taken was $950 or less. (Page, supra, 3 Cal.5th at p. 1182; see § 490.2, subd. (a).) The court observed that “while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under section 10851, it is, in effect, a form of grand, rather than petty, theft. [Citations.]” (Page, supra, at pp. 1186-1187, italics added.)
The California Supreme Court further explained: “Theft . . . requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession.” (Page, supra, 3 Cal.5th at p. 1182.) “ ‘Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete . . . . Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction . . . .’ [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [Citation.]” (Id. at p. 1183.) Consequently, “[a] person convicted before Proposition 47’s passage for vehicle theft under Vehicle Code section 10851 may . . . be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less.” (Id. at p. 1180, italics added.)
B. Defendant’s Failure to Establish His Eligibility for Relief Warranted the Denial of His Petitions
“A defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility. [Citations.]” (Page, supra, 3 Cal.5th at p. 1188.) If the defendant fails to meet this burden, the trial court’s order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (People v. Perkins (2016) 244 Cal.App.4th 129, 139.) “[O]n appeal we are concerned with the correctness of the superior court’s determination, not the correctness of its reasoning. [Citation.] ‘ “[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]” [Citation.]’ [Citation.]” (Ibid.)
To establish eligibility for resentencing or redesignation for a Vehicle Code section 10851 conviction, the defendant must show that (1) the conviction was based on theft of the vehicle, rather than on posttheft driving or on a taking without the intent to permanently deprive the owner of possession, and (2) the vehicle was worth $950 or less. (Page, supra, 3 Cal.5th at p. 1188.) In Page, the California Supreme Court found that the defendant’s “uncounseled petition” was properly denied where it contained “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 pp. 1180, 1189.) The California Supreme Court determined, however, that the defendant was “entitled to an opportunity to file a new petition” because “the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and . . . neither had yet been judicially articulated when defendant submitted his petition.” (Id. at p. 1189.) The California Supreme Court concluded that the trial court’s order denying the defendant’s petition should be “affirmed without prejudice to consideration of a petition providing evidence of his eligibility.” (Id. at p. 1190.)
In this case, similar to Page, neither of defendant’s two petitions contained allegations, testimony, or record references showing that (1) his Vehicle Code section 10851 conviction was based on the theft of the vehicle, and (2) the vehicle’s value was $950 or less. Defendant’s petitions were therefore properly denied. (Page, supra, 3 Cal.5th at p. 1189.) However, because his petitions were filed before “the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction” were clearly established, he is “entitled to an opportunity to file a new petition” to “allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under section 1170.18.” (Ibid.)
IV. DISPOSITION
The March 29, 2016 order is affirmed without prejudice to consideration of a new petition providing evidence of defendant’s eligibility.



___________________________________________
BAMATTRE-MANOUKIAN, J.





WE CONCUR:




__________________________
ELIA, ACTING P.J.







__________________________
MIHARA, J.














People v. Rios
H043450