Filed 4/23/18 P. v. Flaherty 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

RYAN PATRICK FLAHERTY,

Defendant and Appellant.


E063718

(Super.Ct.No. RIF10001926)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, Allison V. Acosta, and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found defendant and appellant Ryan Patrick Flaherty guilty of unlawfully driving or taking a vehicle, with a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, count 1), and receiving, withholding, or concealing a stolen vehicle from its owner, with a prior vehicle theft conviction (Pen. Code, §§ 666.5, subd. (a), 496d, subd. (a), count 2). In a bifurcated proceeding, the trial court found true that defendant had served four prior prison terms (§ 667.5, subd. (b)) and that defendant had sustained one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 10 years in state prison.
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.)
We affirmed the trial court’s denial of defendant’s petition for resentencing pursuant to Proposition 47; at the direction of our 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
FACTUAL AND PROCEDURAL BACKGROUND
On March 31, 2010, defendant unlawfully took or drove a stolen 1998 Ford Expedition without the owner’s consent and with the intent to permanently or temporarily deprive the owner of title and possession.
On August 31, 2010, an amended information was filed charging defendant with the unlawful driving or taking of a vehicle, with a prior vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, count 1), and receiving, withholding, or concealing a stolen vehicle from its owner, with a prior vehicle theft conviction (Pen. Code, §§ 666.5, subd. (a), 496d, subd. (a), count 2). The amended information also alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)), and had one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
Prior to trial, for purposes of the charges in counts 1 and 2, defendant admitted suffering prior convictions for violating Vehicle Code section 10851, subdivision (a), in 2003 and 2005, and Penal Code section 496d, subdivision (a), in 2008. On September 13, 2010, a jury found defendant guilty as charged. Defendant subsequently waived his right to a jury trial on the prior conviction allegations, and the trial court held a bifurcated hearing. After reviewing the evidence, the trial court found true all of the prior conviction allegations. Defendant was sentenced to a total term of 10 years in state prison.
On November 4, 2014, voters enacted Proposition 47, entitled “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classified as misdemeanors certain drug- and theft-related offenses that previously were felonies or “wobblers,” unless they were committed by certain ineligible defendants. (Pen. Code, § 1170.18, subd. (a).)
On December 11, 2014, defendant filed a form petition to recall his felony convictions (vehicle theft with priors and receiving a stolen vehicle with priors), to reduce them to misdemeanors, and for resentencing pursuant to Proposition 47. Defendant checked the box, alleging he “is currently serving” a 10-year sentence and “requests that the felony sentence be recalled and that [he] be resentenced to a misdemeanor under Penal Code section 1170.18(b), (d).” 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 his offenses are “[n]ot [ ] qualifying” felonies.
On April 14, 2015, the trial court considered and summarily denied defendant’s petition, finding defendant’s convictions under Penal Code section 666.5 are not qualifying offenses. The minute order states: “Petition for resentencing pursuant to 18-PC 1170.18 is denied. 666.5 (a) PC is not a qualifying felony.”
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 Penal Code section 1170.18. Defendant sought review in the California Supreme Court. By order entered on March 21, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page, supra, 3 Cal.5th at p. 1175. On March 22, 2018, we issued an order vacating our previous opinion and invited the parties to submit supplemental briefing.
On March 28, 2018, defendant filed a supplemental opening brief. On April 2, 2018, respondent filed a supplemental brief.
III
DISCUSSION
In his supplemental opening brief, defendant contends: (1) the absurd consequences doctrine requires that defendant’s conviction for unlawfully driving a motor vehicle under Vehicle Code section 10851 be treated the same way as a conviction for the unlawful taking of a vehicle under Page, supra, 3 Cal.5th 1175; (2) the equal protection clause also requires that defendant’s conviction for unlawfully driving a vehicle be treated the same as a conviction for unlawfully taking a vehicle; and (3) even if the holding of Page is not extended to those not convicted of a theft-based violation of Vehicle Code section 10851, the matter must be remanded so the trial court can make a factual determination as to whether defendant stole the car.
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. & italics 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, there is no evidence in the record of conviction to show whether defendant unlawfully drove a vehicle or unlawfully took a vehicle. Nothing in the record of conviction also establishes whether the 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 p. 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
RAMIREZ
P. J.
We concur:


McKINSTER
J.


CODRINGTON
J.