Filed 12/15/17 In re A.J. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re A.J., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.J.,
Defendant and Appellant.




A146739

(Contra Costa County
Super. Ct. No. J1100090)


I. INTRODUCTION
Minor defendant A.J. appeals from an order by the Contra Costa County Juvenile Court denying her petition to reclassify a felony violation of Vehicle Code section 10851, subdivision (a), as a misdemeanor pursuant to Proposition 47. She contends that a violation of Vehicle Code section 10851 involving the theft of a vehicle falls within Proposition 47, that she met her burden to show the value of the car involved in the present case was $950 or less, and that the trial court used an incorrect formula to determine the fair market value of the car at the time of her offense. In its recent decision in People v. Page (Nov. 30, 2017, S230793) ___ Cal.5th ___ [2017 D.A.R. 11358, 11359; 2017 Cal. Lexis 8926, *3; 2017 WL 5895782, *1] (Page), our Supreme Court held a felony violation of Vehicle Code section 10851 is eligible for resentencing under Proposition 47 if the conviction is based on the theft of a vehicle worth less than $950. A.J.’s petition, however, did not establish her eligibility for resentencing. Accordingly, we affirm the denial of A.J.’s petition without prejudice to consideration of a subsequent petition providing evidence of her eligibility for resentencing.
II. FACTUAL BACKGROUND
The probation report summarizes the following facts from the California Highway Patrol (CHP) report. A CHP officer spotted A.J. at the wheel of a silver Toyota Camry, merging onto Highway 4. The officer directed her to pull over. After first pulling to the shoulder and slowing down, A.J. then accelerated and drove off, and the officer pursued her. A CHP motorcycle officer also joined the chase. After traveling about five miles, the Camry began to fishtail. The Camry struck the center median and was propelled across all four lanes before hitting a Mercedes and then the sound wall on the right shoulder.
With A.J. in the crashed Camry was her friend, minor T.B. Both minors were transported for medical treatment. T.B. was treated for a broken clavicle, and A.J. was released to juvenile hall after a medical examination.
While on the scene, the officers determined the Camry was stolen from the Bay Point BART parking lot. The owner was in the process of reporting the car stolen.
III. PROCEDURAL BACKGROUND
In November 2013, the Contra Costa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602) alleging two counts against A.J.: (1) unlawfully driving or taking a vehicle, a felony (Veh. Code, § 10851, subd. (a)); and (2) evading a peace officer and causing serious bodily injury, a felony (Veh. Code, § 2800.3). In March 2014, A.J. pled no contest to the first count, and the court dismissed the second count. This was A.J.’s first offense.
A.J. has been in and out of the Welfare and Institutions Code section 300 dependency system since 1999, due to her parents’ history of substance abuse, neglect, and domestic violence. At a March 2014 disposition hearing pursuant to Welfare and Institutions Code section 241.1, the court vacated A.J.’s section 300 status and made her an indefinite ward of the court under section 602. The court ordered an out-of-home placement and placed A.J. on three years’ probation.
In September 2015, A.J. filed a petition under Proposition 47 to redesignate the Vehicle Code section 10851 offense a misdemeanor. The juvenile court denied the petition, determining that Vehicle Code section 10851 is not covered under Proposition 47 and that the value of the car was $1,000, since that was the amount invested in it by the owner. The owner of the Camry requested $1,000 in restitution for repairs and towing fees incurred over the past year. A.J. filed a timely notice of appeal.
IV. DISCUSSION
In November 2014, the California electorate passed Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Descano (2016) 245 Cal.App.4th 175, 180.) Proposition 47 reduced specified drug and theft offenses from felonies to misdemeanors, unless the defendant has prior convictions for specified violent or serious crimes. (Ibid.) Among other things, Proposition 47 added Penal Code section 490.2, which provides in part, “[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor,” unless the offense was committed by a defendant who is required to register as a sex offender (§ 290) or has previously been convicted of one or more serious or violent felonies listed in section 667, subdivision (e)(2)(C)(iv). (§ 490.2, subd. (a).)
Proposition 47 also added a resentencing provision, section 1170.18, which permits a defendant serving a felony sentence at the time of Proposition 47’s passage to file a petition for resentencing the offense as a misdemeanor 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” as long as resentencing would not present an unreasonable risk of danger to public safety. (§ 1170.18, subd. (a); see Page, supra, ___ Cal.5th ___ [2017 D.A.R. at pp. 11358–11359; 2017 Cal. Lexis 8926 at pp. *1–*2; 2017 WL 5895782 at p. *1]; People v. Bush (2016) 245 Cal.App.4th 992, 1000.) “Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions ‘designated as misdemeanors.’ ” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1093.) “After resentencing under Proposition 47, an eligible conviction is considered a misdemeanor for all purposes.” (Bush, supra, 245 Cal.App.4th at p. 1000.) A juvenile offender, including one who pleads no contest to a Proposition 47 eligible felony, may bring a petition for reclassification. (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652–653.)
“Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner’s consent, and ‘with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle.’ ” (Page, supra, ___ Cal.5th ___ [2017 D.A.R. at p. 11360; 2017 Cal. Lexis 8926 at p. *7; 2017 WL 5895782 at p. *3].) Although section 1170.18 does not expressly refer to Vehicle Code section 10851, it does permit resentencing to a misdemeanor under section 490.2 for theft of property worth $950 or less. (Page, supra, ___ Cal.5th ___ [2017 D.A.R. at p. 11359; 2017 Cal. Lexis 8926 at p. *2; 2017 WL 5895782 at p. *1].) “Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle. [Citation.] 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.” (Page, supra, ___ Cal.5th ___ [2017 D.A.R. at p. 11359; 2017 Cal. Lexis 8926 at pp. *2–*3; 2017 WL 5895782 at p. *1].)
A defendant seeking to have pre-Proposition 47 felonies reduced to misdemeanors bears the burden of proving his or her eligibility for such relief. (People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski).) As our Supreme Court explained in Romanowski: “In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, ‘the petitioner’s felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 [(Sherow)] [citation] [‘A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.’].)” (Romanowski, supra, 2 Cal.5th at p. 916.) “ ‘If the crime under consideration is a theft offense under [section 490.2], the petitioner will have the . . . burden of proving the value of the property did not exceed $950.’ ” (Sherow, supra, at p. 879; see also People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)
Here, A.J. has not met an essential part of her burden because she has not shown the value of the Camry was $950 or less. As evidence of the value of the Camry, A.J. points to a statement made by her defense attorney at the hearing on the petition for resentencing: “[T]he officer involved estimated the car to be worth $100. The car was an ’84 Toyota Camry, which would be 30 years old. The fact that it was still running is amazing.” A reference to the officer’s estimate appears in the record only once more, in A.J.’s brief in support of her petition for resentencing. The CHP report is not attached to her petition and does not appear elsewhere in the record. A March 2014 probation report summarizes many of the facts recorded in the CHP report but does not mention the estimated value of the car. No declaration or other evidence addressing the value of the car was submitted with the unverified petition. The petition itself just asserts, without elaboration, that the value of the car was under $950.
In addition, to be eligible for resentencing, under Page, A.J. must establish the basis for her felony adjudication under Vehicle Code section 10851, i.e., she must show the adjudication “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, ___ Cal.5th ___ [2017 D.A.R. at p. 11363; 2017 Cal. Lexis 8926 at p. *17; 2017 WL 5895782 at p. *7].) A resentencing court may be able to make this determination from the record of conviction. (Id. at p. ___ [2017 D.A.R. at p. 11363; 2017 Cal. Lexis 8926 at p. *18; 2017 WL 5895782 at p. *7.) Here, because the trial court concluded Vehicle Code section 10851 offenses are never eligible for resentencing, it did not address whether A.J.’s felony adjudication was based on vehicle theft.
In September 2015, when A.J. filed her petition for resentencing, the requirements governing pleading and proof in requests for relief under Proposition 47 were less settled. Accordingly, we will affirm the juvenile court’s denial of A.J.’s Proposition 47 resentencing petition without prejudice to subsequent consideration of a properly filed petition providing evidence of A.J.’s eligibility for relief under Proposition 47. (See Page, supra, ___ Cal.5th ___ [2017 D.A.R. at pp. 11363–11364; 2017 Cal. Lexis 8926 at pp. *19–*20; 2017 WL 5895782 at p. *8]; People v. Perkins (2016) 244 Cal.App.4th 129, 139–140, 142; Sherow, supra, 239 Cal.App.4th at p. 881.)
V. DISPOSITION
The order denying A.J.’s petition for resentencing under section 1170.18 is affirmed without prejudice to consideration of a properly filed petition supplying evidence of her eligibility for relief under Proposition 47. 





_________________________
Streeter, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Rivera, J.
























A146739/In re A.J.