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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GABRIEL GOMEZ, JR.,

Defendant and Appellant.


E062867

(Super.Ct.No. FSB1402290)

OPINION ON REMAND

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Sheila Quinlan for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Gabriel Gomez, Jr., pleaded guilty to unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). Thereafter, Proposition 47 went into effect. Proposition 47 allows a defendant convicted of one of several theft-related felonies to petition to have that conviction treated as a misdemeanor, provided the value of the property involved did not exceed $950. Defendant filed a petition pursuant to Proposition 47, but the trial court denied it on the ground that Proposition 47 does not apply to a conviction for unlawfully driving or taking a vehicle.
Defendant appeals, arguing that Proposition 47 does apply to a conviction for unlawfully driving or taking a vehicle, or, alternatively, it must be deemed to apply as a matter of equal protection. Pursuant to People v. Page (2017) 3 Cal.5th 1175, we will hold that Proposition 47 may or may not apply, depending on the circumstances of the underlying crime, and defendant is entitled to an opportunity to file an amended petition alleging the requisite circumstances. This obviates his equal protection argument.
I
PROCEDURAL BACKGROUND
On July 9, 2014, defendant pleaded guilty to unlawful driving or taking of a motor vehicle. (Veh. Code, § 10851, subd. (a).) According to the complaint, the subject vehicle was a 2002 Chevrolet Suburban that belonged to Rotolo Chevrolet. As defendant concedes, “it is not apparent from the record whether [his] conviction . . . was for his theft of the vehicle, or for simply driving it.” {ASB 9} Pursuant to the plea bargain, defendant was sentenced to two years in prison.
On November 5, 2014, Proposition 47 went into effect. (See People v. Esparza (2015) 242 Cal.App.4th 726, 735.)
On November 14, 2014, defendant, in propria persona, filed a petition to have the conviction redesignated as a misdemeanor pursuant to Penal Code section 1170.18 (part of Proposition 47). At a hearing on the petition, at which defendant was represented by appointed counsel, the trial court denied the petition. It ruled that “defendant’s convicted charge does not qualify for relief under Prop. 47 or Penal Code section 1170.18 . . . .”
II
PROPOSITION 47 MAY OR MAY NOT APPLY
In general, Proposition 47 reduced certain theft-related offenses — provided they involve property worth $950 or less — as well as certain possessory drug offenses from felonies (or wobblers) to misdemeanors, unless the defendant has a disqualifying prior conviction. (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (May 2017 rev. ed.) p. 27 (Couzens & Bigelow), available at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of Apr. 17, 2018.)
It also allowed persons previously convicted of one of the specified offenses as a felony to petition to reduce the conviction to a misdemeanor. (Pen. Code, § 1170.18.)
“The ultimate burden of proving . . . eligibility lies with the petitioner. [Citation.] In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. . . . 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.’ [Citations.]” (People v. Romanowski (2017) 2 Cal.5th 903, 916.)
In People v. Page (2017) 3 Cal.5th 1175, the California Supreme Court held that a person convicted under Vehicle Code section 10851 is eligible for resentencing under Proposition 47, on two conditions. First, he or she must show that the crime constituted theft — i.e., unlawful taking (rather than unlawful driving) with the intent to permanently deprive (rather than temporarily deprive). (People v. Page, supra, at pp. 1181-1189.) And second, he or she must show that the value of the property taken was $950 or less. (Ibid.) The court further held that, in cases decided before these principles were “judicially articulated,” the defendant “is entitled to an opportunity to file a new petition meeting the statutory requirements.” (Id. at p. 1189.)
Defendant did not meet his burden in this case. The petition provided insufficient information about the nature of the crime and the value of the vehicle to permit the superior court to determine whether defendant is eligible for resentencing. However, he is entitled to an opportunity to file a petition meeting the statutory requirements.
III
DISPOSITION
The order appealed from is reversed and the matter is remanded with directions to allow defendant to file an amended petition within a reasonable time to be fixed by the trial court. (See People v. Sweeney (2016) 4 Cal.App.5th 295, 303.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.


We concur:

MILLER
J.

CODRINGTON
J.