Filed 5/23/18 P. v. Jurado CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD JURADO,

Defendant and Appellant.
B271171

(Los Angeles County
Super. Ct. No. KA031959)



APPEAL from an order of the Superior Court of Los Angeles County. Daniel Lopez, Judge. Affirmed.

Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Heather B. Arambarri, Deputy Attorney General, for Plaintiff and Respondent.


Defendant and appellant Richard Jurado (defendant) appealed from the trial court’s denial of his petition for resentencing under Proposition 47. We affirmed the trial court’s denial of the petition on the ground that defendant’s conviction for taking or driving a vehicle in violation of Vehicle Code section 10851 was not a theft offense eligible for resentencing under Proposition 47. (People v. Jurado (May 26, 2017, B271171) [nonpub. opn.] (Jurado I).) Defendant sought review in the California Supreme Court, and the Supreme Court transferred the matter back to this court for reconsideration in light of its decision People v. Page (2017) 3 Cal.5th 1175 (Page). We issued a notice to the parties inviting them to submit letter briefs addressing the effect, if any, the Supreme Court’s decision Page should have on this case. Upon consideration of the parties’ letter briefs and the Page decision, we again affirm the order denying defendant’s petition, but do so without prejudice to consideration of a new petition providing evidence of defendant’s eligibility.
DISCUSSION
Proposition 47 added Penal Code section 1170.18, which allows a person currently serving a felony sentence “who would have been guilty of a misdemeanor” if Proposition 47 had been in effect at the time of the offense, to petition the court for resentencing “in accordance with” certain specified statutes that “have been amended or added by this act” which provide for different, lesser punishment than applied before Proposition 47. (§ 1170.18, subd. (a).)
Section 490.2 is one of the statutes amended or added by Proposition 47. Section 490.2 provides that “obtaining any property by theft” is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less. In Page, the Supreme Court resolved a conflict among the courts of appeal as to whether felony violations of Vehicle Code section 10851 were eligible for resentencing under Proposition 47. Rejecting the view that a Vehicle Code section 10851 conviction was categorically ineligible for resentencing under Proposition 47, the Supreme Court concluded “that obtaining an automobile worth $950 or less by theft constitutes petty theft under [Penal Code] section 490.2 and is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged. A defendant who, at the time of Proposition 47’s passage, was serving a felony sentence for taking or driving a vehicle in violation of Vehicle Code section 10851 is therefore eligible for resentencing under [Penal Code] section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle.” (Page, supra, 3 Cal.5th at pp. 1187, 1188 & fn. 6.)
The court in Page pointed out, however, that Vehicle Code section 10851 may be violated in several ways, including by theft of the vehicle and by unlawfully driving the vehicle without the intent to steal it, a non-theft offense. (Page, supra, 3 Cal.5th at pp. 1182-1183.) Only those defendants “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 [are] thus eligible for resentencing under section 1170.18.” (Page, at p. 1184; see also People v. Van Orden (2017) 9 Cal.App.5th 1277, 1286-1288, review dismissed, Mar. 14, 2018, S241574.) Thus, a defendant seeking resentencing bears the burden of showing that (1) his conviction was based upon his theft of a vehicle, and (2) the vehicle was worth $950 or less. (Page, at p. 1184.) The evidence will ordinarily come from the record of conviction, such as trial testimony or the factual basis for a negotiated plea. (Id. at p. 1189.) In Page, the “[d]efendant’s petition included no allegations, testimony, or record references to show either” requirement; however, the court held there that “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 section 1170.18. [Citations.]” (Page, at p. 1189.)
In the instant case, the Attorney General concedes that the vehicle taken by defendant was worth less than $950. The issue presented is whether defendant’s petition sufficiently alleged and presented evidence of the facts necessary to establish that his Vehicle Code section 10851 conviction was based on a theft, and therefore eligible for resentencing under Proposition 47.
Defendant contends the record demonstrates that he was convicted of a theft offense under Vehicle Code section 10851 because the one-count information alleged that he did “willfully and unlawfully drive and take a certain vehicle . . . with intent, either permanently or temporarily, to deprive [the] owner of title and to possession of said vehicle.” Defendant further contends he was convicted of the crime as charged and therefore was convicted of a theft offense. The record does not include the jury’s verdict, and the abstract of judgment indicates only that defendant was convicted of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a). Defendant contends the evidence in the record shows that he was convicted of a theft and not post-theft driving because there was not a “substantial break” between the time the vehicle was reported stolen and the time of defendant’s arrest. He points out that the victim parked his car at approximately 10:00 p.m. and later reported it stolen, and that defendant was arrested following a traffic stop while driving the car at approximately 10:00 p.m. on that same night. Defendant did not present this evidence to the trial court, however, in his petition for resentencing. There was accordingly no finding by the trial court as to the theft element of defendant’s conviction. Defendant did not satisfy his burden of showing that his conviction was based on theft rather than on driving. Under Page, however, he should have the opportunity to do so in a new petition providing evidence of the facts to establish his eligibility for resentencing.
DISPOSITION
The trial court’s order denying defendant’s petition is affirmed without prejudice to consideration of a new petition providing evidence of his eligibility.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


____________________________, J.
CHAVEZ
We concur:


__________________________, Acting P. J.
ASHMANN-GERST


__________________________, J.*
MATZ










____________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.