Filed 4/26/18 P. v. Hubert CA3
Opinion on transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN LLOYD HUBERT,

Defendant and Appellant.
C080123

(Super. Ct. No. CRF-2012-1622-2)

OPINION ON TRANSFER




Defendant Kevin Lloyd Hubert appeals from the trial court’s denial of his Penal Code section 1170.18 (unless otherwise set forth, statutory references that follow are to the Penal Code) petition for resentencing on his conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). He contends that the crime of unlawfully driving or taking a vehicle comes within the resentencing provisions of section 1170.18 because it is a theft statute subject to section 490.2.
We previously affirmed the denial of the resentencing petition. (People v. Hubert (Sept. 2, 2016, C080123) [nonpub. opn.].) In this opinion, 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 without prejudice to consideration of a subsequent petition providing evidence of eligibility.
FACTS AND PROCEEDINGS
On April 3, 2012, Jonathan Flores found his white Oldsmobile was not in its usual parking spot at his Woodland apartment complex. A police officer spotted defendant driving the car on April 7, 2012. When the officer started to follow him, defendant accelerated rapidly and ran a red light, almost hitting a truck. The officer broke off pursuit when defendant reached a speed of about 100 miles per hour. The officer continued in the same direction defendant drove, and found the Oldsmobile crashed into the front yard of a house, damaging a city water main and a pole. Defendant tried to run away, but was caught by the officer and a police dog. Upon being searched, defendant was found to possess methamphetamine. He said that he had bought the vehicle “for a couple hundred dollars” from a person named “Slick” and had received a pink slip recording the transaction. Defendant could not produce the pink slip.
A jury convicted defendant of three misdemeanor offenses, reckless driving, hit-and-run with property damage, and resisting or obstructing a peace officer, acquitted him of transportation of a controlled substance, and could not reach a verdict on unlawfully driving or taking a vehicle. The trial court declared a mistrial on the unlawful driving or taking charge, and following a second trial, a jury convicted defendant of that offense. The trial court sustained a strike and three prior prison term allegations, and sentenced defendant to nine years in state prison.
Defendant later filed a section 1170.18 petition for resentencing on the unlawful driving or taking conviction. In a supporting memorandum, defendant recognized that Vehicle Code section 10851 could be violated by either theft or unlawfully driving a vehicle, and asserted the crime was a theft offense eligible for resentencing. The defense memo argued that since Vehicle Code section 10851 encompassed acts either identical to (car theft) or less serious than (unlawfully driving a vehicle) the behavior contained in grand theft auto (§ 487, subd. (d)(1)), section 490.2 should be interpreted to apply to Vehicle Code section 10851 convictions. At the hearing on the petition, the prosecution and the defense agreed that the Oldsmobile was worth less than $950. Defendant did not assert or provide evidence at the hearing showing his conviction was for theft of the car rather than for unlawfully driving the vehicle after it was stolen. The trial court denied the petition, finding that Vehicle Code section 10851 was not subject to section 1170.18 resentencing.
DISCUSSION
Defendant argues the trial court erred in finding his conviction for unlawfully driving or taking a vehicle was not subject to the resentencing provisions of section 1170.18.
Section 1170.18, subdivision (a) provides: “A person currently 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 . . . .”
Section 1170.18 was enacted as part of Proposition 47, which reduced many crimes from felony to misdemeanor. As pertinent to this case, Proposition 47 added section 490.2, which states in pertinent part: “Notwithstanding 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 . . . .” (§ 490.2, subd. (a).)
In Page, the Supreme Court held that Vehicle Code section 10851 convictions “are not categorically ineligible for resentencing” under section 1170.18. (Page, supra, 3 Cal.5th at p. 1189.) Under Page: “[a] defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility, including by providing in the petition a statement of personally known facts necessary to eligibility. [Citations.] 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].” (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.)
While defendant’s petition recognized the distinction between the two ways of violating Vehicle Code section 10851, theft of a motor vehicle and unlawfully driving a motor vehicle, his petition did not allege his conviction was for theft and argued that a conviction under either theory of guilt would be eligible for resentencing. Likewise, he made no such argument at the hearing on the petition. Applying Page, we conclude the petition was properly denied because defendant did not carry the burden of establishing his conviction was for theft rather than unlawfully driving a vehicle, but that he is entitled to file a successive petition containing evidence of his eligibility.
DISPOSITION
The judgment (order) is affirmed without prejudice to consideration of a petition providing evidence of defendant’s eligibility.



HULL , Acting P. J.



We concur:



ROBIE , J.



BUTZ , J.