Filed 3/23/18 P. v. Warren CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN WARREN,

Defendant and Appellant.


C082601

(Super. Ct. Nos. STKCRFE20130009103, SF126203A)





Defendant Marvin Warren appeals from the trial court’s denial of his Penal Code section 1170.18 petition for resentencing on his convictions for unlawfully driving or taking a vehicle and receiving a stolen vehicle. He contends the trial court erred in finding the convictions ineligible for resentencing.
After the first round of briefing was completed in this case, we asked the parties to file supplemental letter briefs addressing what effect the California Supreme Court’s recent decision in People v. Page (2017) 3 Cal.5th 1175 (Page) has on the disposition of this case.
We will affirm the trial court's order without prejudice to defendant filing a new petition supplying proof of eligibility for resentencing.
BACKGROUND
Defendant was subjected to a traffic stop in 2013 while driving a 1995 Nissan Sentra that had been reported stolen. He misidentified himself to the officer and claimed he had purchased the car without knowing it was stolen. The Sentra had 210,000 miles on the odometer.
Defendant pleaded no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851), receiving a stolen vehicle (§ 496d), and misdemeanor providing false information to a law enforcement officer (§ 148.9, subd. (a)). He also admitted allegations regarding prior prison terms. (§ 667.5, subd. (b).) The trial court imposed a five-year state prison term, suspended execution of sentence, and placed defendant on probation for five years.
The trial court subsequently reinstated probation after defendant admitted violating probation. Later the trial court found that defendant violated probation again. The trial court terminated probation and executed the five-year prison term in 2015.
In 2016 defendant filed a section 1170.18 petition for resentencing of his two felony convictions, alleging that the Nissan was worth less than $950. The trial court denied the petition, finding the crimes were ineligible for resentencing.
DISCUSSION
I
Defendant contends the trial court erred in finding his conviction for unlawfully driving or taking a vehicle ineligible for resentencing.
In November 2014, the voters passed Proposition 47, which reduced a number of felony or wobbler offenses to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Among the crimes reduced to misdemeanors by Proposition 47 is petty theft (§ 490.2), defined as theft of property where the value of the money, labor, or real or personal property taken does not exceed $950. (See § 1170.18, subd. (a).)
Section 1170.18, subdivision (a) provides: “A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .”
While this appeal was pending, the California Supreme Court issued its decision in Page, supra, 3 Cal.5th 1175. A conviction under Vehicle Code section 10851 may be for unlawfully taking or unlawfully driving a vehicle, and the court in Page differentiated between the two types of conduct for purposes of Proposition 47: petty theft under section 490.2 includes convictions for vehicle theft under Vehicle Code section 10851 where it is shown the vehicle was worth $950 or less; but petty theft does not include convictions for posttheft driving under Vehicle Code section 10851. (Page, supra, 3 Cal.5th at pp. 1180, 1188-1189.)
To determine whether a Vehicle Code section 10851 conviction is based on vehicle theft, as opposed to posttheft driving, the court instructed: “Where the trial testimony . . . shows posttheft driving -- that is, driving the vehicle following a ‘substantial break’ after the vehicle had initially been stolen -- the defendant cannot establish eligibility [for resentencing] under section 1170.18 by declaring or testifying that he or she also stole the vehicle: such testimony would not prove the conviction was based on theft rather than on posttheft driving, and therefore would fail to establish that the defendant would only have been guilty of a misdemeanor (petty theft under section 490.2, subd. (a)) had Proposition 47 been in effect at the time of the offense.” (Page, supra, 3 Cal.5th at p. 1189, italics omitted.)
As the petitioner in a section 1170.18 proceeding, the defendant bears the burden of establishing his conviction was for theft rather than for unlawful driving. “To 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 [citation], but also that 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].” (Page, supra, 3 Cal.5th at p. 1188.)
Defendant admits his petition for resentencing does not offer proof sufficient to establish eligibility under Page, but asserts he is entitled to file a successive petition providing evidence of eligibility. We agree. (See Page, supra, 3 Cal.5th at p. 1190 [affirming the denial of the defendant’s petition “without prejudice to consideration of a petition providing evidence of his eligibility”].) We will affirm the trial court's order without prejudice to defendant filing a new petition supplying proof of eligibility for resentencing.
II
Defendant next contends the trial court erred in finding his conviction for receiving a stolen vehicle (§ 496d) ineligible for resentencing.
Receiving a stolen vehicle under section 496d is not one of the offenses listed in section 1170.18 as eligible for resentencing. (See § 1170.18, subd. (a).) While Proposition 47 amended the crime of receiving stolen property (§ 496) so that a case involving property worth $950 or less is a misdemeanor, it did not amend the statute for receiving a stolen vehicle or list that offense as eligible for resentencing. (See §§ 1170.18, subd. (a), 496, 496d.)
Defendant nevertheless argues the “logic” in Page applies to receiving a stolen vehicle. Although there is some superficial appeal to defendant’s claim -- theft of a vehicle can be more blameworthy than receiving a stolen vehicle -- the statutory language interpreted in Page is not present in the context of receiving stolen property. The statute addressed in Page, section 490.2, subdivision (a), includes the words “ ‘Notwithstanding Section 487 or any other provision of law defining grand theft . . . .’ ” (Page, supra, 3 Cal.5th at p. 1182.) But there is no equivalent language in the receiving statutes. Proposition 47 applies to certain violations of Vehicle Code section 10851 because of the broad, preemptive language of section 490.2. Proposition 47 did not enact similar language in the context of receiving stolen property. The lack of such a provision, coupled with the fact that the initiative did not amend section 496d, is dispositive on defendant’s receiving conviction. Proposition 47 does not apply to the crime of receiving a stolen vehicle.
III
Defendant further claims we must apply Proposition 47 to section 496d as a matter of equal protection. He makes a similar argument regarding nontheft convictions under Vehicle Code section 10851. His arguments lack merit.
“[N]either the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion in charging under one such statute and not the other, violates equal protection principles. [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 838.) It has therefore long been the case that “a car thief may not complain because he may have been subjected to imprisonment for more than 10 years for grand theft of an automobile [citations] when, under the same facts, he might have been subjected to no more than 5 years under the provisions of section 10851 of the Vehicle Code.” (People v. Romo (1975) 14 Cal.3d 189, 197.) Unless the defendant can show that he or she “ ‘has been singled out deliberately for prosecution on the basis of some invidious criterion,’ . . . the defendant cannot make out an equal protection violation. [Citation.]” (Wilkinson, at p. 839.) Defendant has not made such a showing.
DISPOSITION
The trial court's order denying defendant's petition for resentencing is affirmed without prejudice to consideration of a petition providing evidence of his eligibility.



/S/
MAURO, J.



We concur:



/S/
RAYE, P. J.



/S/
HULL, J.