Opinion
H042040
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANK ALEX GONZALES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1371872)
The present case is before this court for a second time, after the California Supreme Court granted review, deferred briefing, and then transferred it back to this court for reconsideration in light of People v. Page (2017) 3 Cal.5th 1175 (Page). At issue is whether the trial court erred when it denied defendant Frank Alex Gonzales's petition to reduce his conviction for theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)) to a misdemeanor and be resentenced accordingly. We affirm the order because defendant failed to show that he was convicted of a theft offense and that the value of the vehicle did not exceed $950.
I. Statement of the Case
Pursuant to a negotiated agreement in February 2014, defendant pleaded no contest to theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), reckless driving in an attempt to elude a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), and resisting a peace officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1)). Defendant also admitted that he had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to 32 months in state prison.
In January 2015, defendant filed a petition for resentencing pursuant to Penal Code section 1170.18. The trial court denied the petition.
II. Statement of Facts
The complaint alleged: "[o]n or about December 22, 2013, . . . [defendant] . . . did drive and take a vehicle, a Honda Civic . . . belonging to Ray Bianchi, without the consent of the owner and with the intent to deprive the owner of title to and possession of the vehicle." The complaint did not allege whether defendant intended to permanently or temporarily deprive the owner of possession. The value of the vehicle was not alleged in the complaint or established in the underlying proceedings.
III. Discussion
Defendant contends that the trial court erred when it denied his petition to reduce his Vehicle Code section 10851 conviction to a misdemeanor.
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (Page, supra, 3 Cal.5th at p. 1179.) Proposition 47 "reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies." (Page, at p. 1179.) As relevant here, Proposition 47 added Penal Code section 490.2, which provides that "obtaining any property by theft," where the value of the property taken is $950 or less, is petty theft and shall generally be punished as a misdemeanor. (Pen. Code, § 490.2, subd. (a).) In addition, Proposition 47 added Penal Code section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (Pen. Code, § 1170.18, subds. (a), (b), (f) & (g); People v. Gonzales (2017) 2 Cal.5th 858, 863.)
The California Supreme Court held that a Vehicle Code section 10851 conviction may be resentenced to a misdemeanor "if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle." (Page, supra, 3 Cal.5th at p. 1187; see id. at pp. 1184-1185 [similar eligibility criteria for resentencing and for redesignation after the sentence has been completed].) The court explained that a defendant who has been convicted of grand theft is "clearly eligible" for resentencing under Penal Code section 1170.18 if the value of the property taken was $950 or less. (Page, at p. 1182; see Pen. Code, § 490.2, subd. (a).) The court observed that "while Vehicle Code section 10851 does not expressly designate the offense as theft, the conduct it criminalizes includes theft of a vehicle . . . . And to the extent vehicle theft is punished as a felony under [Vehicle Code] section 10851, it is, in effect, a form of grand, rather than petty, theft. [Citations.]" (Page, at pp. 1186-1187, italics added.)
A defendant has the burden to show his eligibility for relief under Penal Code section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 880.) "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]." (Page, supra, 3 Cal.5th at p. 1188.)
Here, since defendant failed to show that he was convicted of a theft offense and the value of the vehicle did not exceed $950, the petition for resentencing was properly denied. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450.)
IV. Disposition
The order is affirmed without prejudice to consideration of a subsequent petition that supplies evidence of defendant's eligibility for resentencing or redesignation of his Vehicle Code section 10851 conviction.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.