Filed 5/14/18 P. v. Ghoston 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TRIAS GHOSTON,

Defendant and Appellant.


E063457

(Super.Ct.No. FVI016266)

OPINION


APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

I.
INTRODUCTION
Defendant Trias Ghoston appeals from the denial of his request under Penal Code section 1170.18, added by Proposition 47, for redesignation of his conviction for felony unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) to misdemeanor petty theft (Pen. Code, § 490.2). Defendant argues a violation of Vehicle Code section 10851 is a theft crime within the scope of Proposition 47 and Penal Code section 1170.18, and the trial court therefore erred in denying his request. In our original opinion, we concluded Vehicle Code section 10851 is not a theft crime for purposes of Proposition 47, and we affirmed the order denying defendant’s petition.
Defendant successfully petitioned our Supreme Court for review. (People v. Ghoston, review granted Jul. 13, 2016, S234970; matter transferred to this court Mar. 21, 2018, with directions.) In People v. Page (2017) 3 Cal.5th 1175 (Page), the Supreme Court held a violation of Vehicle Code section 10851 qualifies for misdemeanor treatment pursuant to Proposition 47 when the defendant had the intent to permanently deprive the owner of the vehicle, as opposed to the intent to temporarily deprive the owner of the vehicle, and the vehicle is worth no more than $950. (Page, at p. 1180.) The Supreme Court thereafter transferred this case back to us for reconsideration in light of Page.
We have vacated our prior opinion. After considering Page, we affirm the order denying defendant’s petition. Defendant offered no proof in support of his petition that he intended to permanently deprive the owner of the vehicle. In addition, although the parties appeared to be in agreement that the vehicle was worth less than $950, defendant submitted no proof of value.
Our affirmance is without prejudice to defendant filing a new petition and proving his conviction qualifies for reclassification under Proposition 47.
II.
FACTS AND PROCEDURAL BACKGROUND
On December 20, 2002, defendant was charged by felony complaint with unlawfully driving or taking a 1985 Oldsmobile Cutlass without the consent of the owner (Veh. Code, § 10851, subd. (a), count 1) and receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a), count 2). On December 31, 2002, defendant pleaded guilty to “auto theft” as alleged in count 1. The record is silent as to the factual basis of defendant’s plea.
On March 30, 2015, defendant filed a form motion for modification of sentence. Defendant requested that his conviction be reduced to a misdemeanor pursuant to Penal Code section 1170.18. The prosecutor filed an opposition to the motion, stating, “PC 496d is not affected by Prop. 47.” (See, ante, fn. 1.) During the hearing on defendant’s motion, the judge stated, “I think both sides would say that the value of the vehicle in question is less than $950.” The court indicated that, “interpreted liberally,” Vehicle Code section 10851 is a theft offense “and . . . it should be reduced to a misdemeanor just like any other theft offense.” The prosecutor disagreed, informing the court that Vehicle Code section 10851 “is not included in Prop. 47.” The prosecutor added, however, that “it is probably fair to infer” that the 1985 Oldsmobile Cutlass was worth $950 or less. The trial court concluded Vehicle Code section 10851 “is not listed under Prop 47,” and denied the petition.
Defendant timely appealed.
III.
DISCUSSION
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, Penal Code section 1170.18. Penal Code section 1170.18 creates a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
Specifically, Penal Code section 1170.18, subdivision (f), provides: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.”
As relevant to the present case, Proposition 47 added Penal Code section 490.2, which provides as follows: “Notwithstanding [Penal Code] 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 . . . .” (Pen. Code, § 490.2, subd. (a).)
“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 Page, supra, 3 Cal.5th 1175, the California Supreme Court held that a person convicted under Vehicle Code section 10851, subdivision (a), 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). (Page, 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. The petition provided no information whatsoever about the nature of the crime and the value of the vehicle to permit the trial court to determine whether defendant is eligible for resentencing. In a supplemental brief, defendant argues it is “evident” that his conviction under Vehicle Code section 10851 was for vehicle theft, and he argues we need not remand the matter for another hearing. He points to the fact that he was also originally charged with receipt of a stolen vehicle. But count 2 was dismissed when defendant pleaded guilty, and the record contains no information whatsoever about defendant’s intent when he took the vehicle. In addition, defendant contends “the parties agreed” that the vehicle’s value was less than $950. True, the trial court assumed the parties would agree as to value, and the prosecutor said it was fair to infer that the vehicle was worth no more than $950. But the prosecutor did not expressly concede the point, and the trial court made no finding as to value because it concluded the conviction was simply not covered by Proposition 47. In short, the record does not contain sufficient evidence of value to justify this court directing the trial court to resentence defendant.
IV.
DISPOSITION
The post judgment order is affirmed without prejudice to defendant filing a new petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J


MILLER
J