Filed 4/17/18 P. v. Richards 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MATTHEW CHRIS RICHARDS,

Defendant and Appellant.


E065398

(Super.Ct.No. FVI021550)

OPINION


APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed.
Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Matthew Chris Richards, pleaded no contest to one count of unlawfully taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). 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. Richards (Feb. 28, 2017, E065398) [nonpub. opn.].) In the instant case, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Cal.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.
II
PROCEDURAL AND FACTUAL BACKGROUND
In 2005, defendant was charged in San Bernardino County Superior Court case No. FVI021550 with two felonies: unlawful driving or taking of a motor vehicle (a 1990 Honda Accord) (Veh. Code, § 10851, subd. (a); count 1), and receiving stolen property (Pen. Code, § 496d, subd. (a); count 2). In 2005, defendant pleaded no contest to unlawful taking of a motor vehicle (count 1). The parties stipulated that, if the court were to review police reports, it would find that a factual basis existed for defendant’s guilty plea to unlawfully driving a motor vehicle. The reports are not part of the record on appeal. The court sentenced defendant to 16 months in state prison. The sentence was ordered to run concurrent with the sentence in another case, San Bernardino County Superior Court case No. FVI019384, in which defendant admitted a violation of probation for possession of a short-barreled shotgun. (formerly Pen. Code, § 12020, subd. (a), currently Pen. Code, § 33210.)
On January 13, 2016, defendant filed a form petition for resentencing pursuant to section 1170.18. Defendant checked the box alleging he “has completed his/her sentence and petitions to have the felony count(s) designated as a misdemeanor(s).” The petition was unsupported by any evidence, including any information regarding the value of the stolen vehicle or the circumstances of the offense. The prosecutor filed a form response: “Defendant is not entitled to the relief requested” because “VC 10851 is not affected by Prop. 47.”
On January 29, 2016, the court heard and summarily denied the petition. The minute order states: “The court finds that Petitioner does not satisfy the criteria in Penal Code [section] 1170.18 and is not eligible for resentencing. Defense petition/Motion for resentencing is DENIED.”
In our previous opinion in this matter, we affirmed the trial court’s ruling, finding that the trial court correctly determined defendant was ineligible for recall of sentence and resentencing pursuant to section 1170.18. (People v. Richards, supra, E065398.) Defendant sought review in the California Supreme Court. By order entered on March 22, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page, supra, 3 Cal.5th 1175. On March 22, 2018, we issued an order vacating our previous opinion and inviting the parties to submit supplemental briefing. Defendant filed a supplemental brief. The People responded by filing a letter brief stating the People do not oppose defendant’s request to remand the case to the trial court to allow defendant to demonstrate he is eligible for Proposition 47 relief.
III
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, defendant’s plea form indicates that he pleaded guilty to “unlawful taking of a vehicle,” but 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.
In his supplemental briefing, defendant suggests that instead of affirming the trial court’s denial of his petition without prejudice to consideration of a subsequent petition, we should remand the matter with directions to allow defendant to make an evidentiary showing. That is not, however, the approach adopted by the Supreme Court in Page, supra, 3 Cal.5th at page 1190. Therefore, we decline to do so.
IV
DISPOSITION
The trial court’s order denying defendant’s petition is affirmed without prejudice to defendant filing a new petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.