Filed 5/18/18 P. v. Baughman CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDEL WAYANE BAUGHMAN, JR.,

Defendant and Appellant.

F071518

(Super. Ct. No. 1463111)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.
Michael Satris, 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, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Randel Wayane Baughman, Jr., appeals from the denial of his petition for resentencing under Penal Code section 1170.18, seeking modification of the sentence imposed on his prior conviction for unlawfully driving or taking a vehicle (Veh. Code, § 10851). Appellant contends that his conviction under section 10851 is eligible for resentencing under Proposition 47 and that the denial of his request violates principles of equal protection. For the reasons set forth below, we affirm without prejudice to the filing of a new petition.
FACTUAL AND PROCEDURAL BACKGROUND
On or around October 30, 2013, appellant pled nolo contendere to unlawfully driving or taking a vehicle under section 10851 and admitted to an enhancement for a prior theft conviction. In exchange, two related charges were dismissed and appellant received a four-year sentence.
Appellant’s arrest originated from a call to 911 placed by a citizen concerned about possible drunk driving. When police arrived to investigate the call, they found the suspect vehicle was reported as stolen. Appellant, who had been identified as the suspected drunk driver by a witness who saw him exit the vehicle with a gas can, was arrested in a nearby store and found in possession of gloves, a screwdriver, pliers, and pictures of the victim’s family that had been in the car when it was stolen.
On or around December 1, 2014, appellant filed a petition for a writ of habeas corpus, seeking resentencing under Proposition 47. The writ was treated as a petition for resentencing. The People opposed the petition, both informally and formally, on the ground a conviction under section 10851 is not eligible for resentencing. Appellant was provided a public defender, who argued appellant was statutorily eligible. The trial court denied appellant’s petition.
This appeal timely followed. In our initial opinion, we affirmed appellant’s conviction. However, following an appeal to our Supreme Court, the case was remanded with instructions to reconsider our opinion in light of People v. Page (2017) 3 Cal.5th 1175 (Page).
DISCUSSION
Appellant argues that a violation of section 10851 is a theft offense, subject to resentencing under Penal Code section 1170.18. Appellant further argues that treating a conviction for theft of an automobile under section 10851 as a felony while other similar property thefts are treated as misdemeanors under Penal Code section 490.2 would create constitutional difficulties by violating equal protection principles.
In our prior opinion in this matter, we relied upon our decision in People v. Sauceda (2016) 3 Cal.App.5th 635 (Sauceda), disapproved in part by Page, supra, 3 Cal.5th at page 1187, footnote 4, to conclude appellant’s conviction under section 10851 was not categorically defined as a theft offense and thus, the mere fact of conviction was insufficient to support resentencing. In Page, our Supreme Court explained that “Proposition 47 makes some, though not all, section 10851 defendants eligible for resentencing: A defendant convicted and serving a felony sentence under Vehicle Code section 10851, subdivision (a), for vehicle theft—taking a vehicle with the intent to permanently deprive the owner of possession—could (if the vehicle was worth $950 or less) receive only misdemeanor punishment pursuant to [Penal Code] section 490.2 and is thus eligible for resentencing under [Penal Code] section 1170.18.” (Page, supra, 3 Cal.5th at p. 1184.) Under the Supreme Court’s analysis, if a defendant can demonstrate conviction under the theft portion of section 10851 relating to a vehicle worth less than $950, they are eligible for resentencing under Proposition 47.
In his supplemental briefing, appellant does not allege he has properly demonstrated eligibility for resentencing. Rather, appellant contends he is in a similar position to the defendant in Page, arguing that despite any failures in his first petition he should be provided the opportunity to file a new petition demonstrating facts rendering him eligible for resentencing. The People support this request, as does the Supreme Court’s opinion in Page. (Page, supra, 3 Cal.5th at p. 1189 [“But as the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and as neither had yet been judicially articulated when defendant submitted his petition for recall, petitioner is entitled to an opportunity to file a new petition meeting the statutory requirements. Such a petition should allege and, where possible, provide evidence of the facts necessary to eligibility for resentencing under [Penal Code] section 1170.18.”].) Accordingly, in our independent review we affirm appellant’s petition did not demonstrate eligibility under the standard articulated in Page, but affirm without prejudice to appellant filing a new petition demonstrating eligibility. As Page did not overrule our determination in Sauceda that there is no equal protection violation in the disparate treatment of punishments for those convicted under section 10851, and appellant does not renew his equal protection argument, we affirm our prior conclusion that no equal protection violation exists. (See Sauceda, supra, 3 Cal.5th at pp. 644–650.)
DISPOSITION
The order is modified to provide that the superior court’s order denying appellant’s petition is affirmed without prejudice to consideration of a petition providing evidence of his eligibility.