Filed 4/30/18 P.v. Foley CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(El Dorado)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES MICHAEL FOLEY,

Defendant and Appellant.
C078306

(Super. Ct. No. P14CRF0262)




This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, and considered defendant’s supplemental brief, the amicus curiae brief of the El Dorado County Public Defender’s Office and our high court’s opinion in People v. Page (2017) 3 Cal.5th 1175 (Page), we affirm the trial court’s order denying defendant’s petition for resentencing pursuant Penal Code section 1170.18 without prejudice to consideration of a new petition providing evidence of his eligibility.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2014, defendant James Michael Foley took Rosalinda Soto’s 2003 Kia Sedona without her permission. He pleaded no contest to unlawfully driving or taking a vehicle with three prior convictions under this section (Veh. Code, § 10851, subd. (e)) and admitted a prior strike (§§ 1170.12, 667, subds. (b)-(i)). The trial court imposed a stipulated term of four years in state prison.
Defendant subsequently filed a petition for recall of sentence pursuant to section 1170.18. Attached to the petition was a police report for the theft, which indicated the value of the stolen vehicle was $350 and related that the victim told the reporting officer that her vehicle was worth that much. The prosecution filed an opposition arguing that the petition should be denied because Vehicle Code section 10851 was not an offense covered by Proposition 47.
At a hearing on the motion, defense counsel argued that Vehicle Code section 10851 was subject to Proposition 47, and that the statements in the police report establish that the vehicle was worth $350, thereby qualifying the offense for a reduction to petty theft, a misdemeanor. The trial court denied the petition, ruling that Proposition 47 did not apply to Vehicle Code section 10851, subdivision (e), as that provision is a recidivism statute.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief and we granted leave for the El Dorado County Public Defender’s Office to file an amicus curiae brief in support of defendant.
Whether the protections afforded by Wende, and the United States Supreme Court decision in Anders v. California (1967) 386 U.S. 738 [18 L.Ed.2d 493], apply to an appeal from an order denying a petition brought by section 1170.18, remains an open question. Our Supreme Court has not spoken. The Anders/Wende procedures address appointed counsel’s representation of an indigent criminal defendant in the first appeal as a matter of right and courts have been loath to expand their application to other proceedings or appeals. (See Pennsylvania v. Finley (1987) 481 U.S. 551 [95 L.Ed.2d 539]; Conservatorship of Ben C. (2007) 40 Cal.4th 529; In re Sade C. (1996) 13 Cal.4th 952; People v. Dobson (2008) 161 Cal.App.4th 1422; People v. Taylor (2008) 160 Cal.App.4th 304; People v. Thurman (2007) 157 Cal.App.4th 36; Glen C. v. Superior Court (2000) 78 Cal.App.4th 570.) Nonetheless, in the absence of authority to the contrary, and to avoid claims of ineffective assistance of appellate counsel, we will adhere to Wende in the present case where appellate counsel sought Wende review instead of challenging the trial court’s ruling on defendant’s section 1170.18 petition, defendant has filed a supplemental brief, and there is an amicus brief supporting defendant.
The passage of Proposition 47 created section 1170.18, which provides for any defendant “currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . .” (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
Defendant contends the trial court should have granted his petition because the stolen vehicle was worth $350. Amicus asserts that defendant was entitled to resentencing because unlawfully driving or taking a vehicle is a lesser included offense of grand theft (People v. Barrick (1982) 33 Cal.3d 115, 128), and to deny him resentencing because Vehicle Code section 10851 is not one of the offenses listed in section 1170.18, subdivision (a), would violate his right to equal protection. Amicus also argues that defendant was entitled to present the trial court with evidence of the vehicle’s value.
In Page, supra, 3 Cal.5th 1175, our high court held that Vehicle Code section 10851 convictions “are not categorically ineligible for resentencing” under section 1170.18. (Page, at p. 1189.) Section 10851 convictions based on theft are eligible; convictions based on posttheft driving or taking without the intent to permanently deprive the owner of possession are not. (Id. at p. 1188.) “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.” (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.) Accordingly, the Supreme Court concluded that the defendant’s petition was properly denied, but held he was “entitled to an opportunity to file a new petition meeting the statutory requirements.” (Ibid.)
We do the same here.
DISPOSITION
The judgment (order) is affirmed without prejudice to consideration of a new petition providing evidence of eligibility.



MURRAY , J.



We concur:



ROBIE , Acting P. J.



MAURO , J.