Filed 4/26/18 P. v. Ashley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM LEE ASHLEY,

Defendant and Appellant.
C080297

(Super. Ct. No. 03F0348)

OPINION ON TRANSFER




Defendant William Lee Ashley 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 to reduce his felony conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851) to a misdemeanor. He contends the trial court erred in finding his conviction ineligible for section 1170.18 relief.
We previously affirmed the denial of the resentencing petition. (People v. Ashley (Sept. 20, 2016, C080297) [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 or about April 18, 2002, defendant unlawfully drove and took a 1981 Mercury Cougar owned by Jennifer McCrody without her consent. Defendant pleaded guilty to unlawfully driving or taking a vehicle and was placed on three years’ formal probation. Defendant’s probation was subsequently revoked and he was sentenced to a two-year state prison term, to be served concurrently with a two-year term imposed in another case.
Defendant subsequently filed a section 1170.18 petition to reduce his conviction to a misdemeanor. Attached to the petition was a declaration from counsel that the vehicle in question “was valued at around $500.00.” Neither the petition nor counsel’s declaration alleged the crime was for stealing rather than unlawfully taking the vehicle in question. The trial court denied the petition, finding defendant’s crime was ineligible for resentencing. No hearing was held on the petition.
DISCUSSION
Section 1170.18 allows certain classes of offenders to have their convictions reduced to misdemeanors if those convictions would have been misdemeanors if committed on or after the enactment of Proposition 47. (§ 1170.18, subd. (a).)
As pertinent to this case, Proposition 47 added section 490.2, which states: “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.)
Defendant contends he is eligible for resentencing because the “record of conviction,” here, the probation report, establishes that he sustained a conviction for theft rather than unlawful driving because he took the vehicle and abandoned it on the side of the road in order to take revenge on his victim.
According to the probation report, the victim told an officer defendant “stole[]” the car and, in a phone call to her, defendant admitted that he took the car in order to get back at her. The vehicle was found abandoned and undamaged in Shasta Lake City. Questioned about the incident six months later, defendant admitted taking the car from the victim’s residence using his set of keys and dumping it on a road in Shasta Lake City to teach the victim a lesson. Defendant said he and the victim were fighting over child visitation and she was dating a new guy. He told the officer he took the car only to bother her.
While the petition here contained an allegation that the value of the vehicle rendered the crime eligible for resentencing, it was silent on whether the crime involved the theft of the vehicle rather than posttheft driving or a taking without the intent to permanently deprive. The probation report does not unequivocally support eligibility as defendant infers. Defendant’s apparent motive for the crime was not to gain ownership from the car or some financial benefit from taking it or to otherwise permanently deprive her of the vehicle, but to get back at the victim for personal reasons. He used his keys to the car, and left it undamaged on a road where it was recovered, and presumably returned to the victim. Taking an item and abandoning it in a place where it is not likely to be recovered can support an inference of an intent to permanently deprive the owner of possession. (See People v. Davis (1998) 19 Cal.4th 301, 307, fn. 4; People v. Brown (1894) 105 Cal. 66, 68-69; People v. Zangari (2001) 89 Cal.App.4th 1436, 1446.) The fact that the car was left on a road where it was later found undamaged, when combined with defendant’s motive for the crime, suggests he did not intend to permanently deprive the victim of possession.
The Supreme Court found in Page that the resentencing court should normally be able to determine from the record whether the crime was for theft or involved posstheft driving, but indicated that where the resentencing court could not make such a determination, “an evidentiary hearing may be warranted upon presentation of prima facie proof[.]” (Page, supra, 3 Cal.5th at p. 1189.)
Since defendant’s petition did not present a prima facie case of eligibility, remand for a resentencing hearing is not appropriate. Since the record before us does not establish eligibility for relief, affirmance without prejudice to his filing a new petition is appropriate.
DISPOSITION
The judgment (order) is affirmed without prejudice to consideration of a petition providing evidence of his eligibility.



HULL , Acting P. J.



We concur:



MAURO , J.



MURRAY , J.