Opinion
F072560
05-18-2018
THE PEOPLE, Plaintiff and Respondent, v. LUIS FRANCISCO ABRAMS, JR., Defendant and Appellant.
Stephen M. Hinkle, 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, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F09906199)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jon Nick Kapetan, Judge. Stephen M. Hinkle, 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, Catherine Chatman and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J. --------
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Appellant Luis Francisco Abrams, Jr., appeals from the denial of his application 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 Vehicle Code section 10851 is eligible for resentencing under Proposition 47 and that the trial court should have held a hearing on the value of the car in question. For the reasons set forth below, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On November 13, 2009, appellant pled no contest to charges of unlawfully driving or taking a vehicle under Vehicle Code section 10851 and evading an officer, and further admitted to enhancements from four prior convictions. Appellant received a two-year sentence.
On February 23, 2015, appellant filed an application for reduction of felony conviction, seeking resentencing for the Vehicle Code section 10851 conviction, and several other charges not relevant to this appeal, under Proposition 47. No opposition was filed and, at least according to the record provided on appeal, no hearing was held on appellant's application. Rather, the trial court denied appellant's application with prejudice on the ground appellant was ineligible for relief "as his or her conviction(s) do not qualify for relief" under the relevant statutory code.
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, on its face, a violation of Vehicle Code 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 Vehicle Code 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, disapproved in part by Page, supra, 3 Cal.5th at page 1187, footnote 4, to conclude appellant's conviction under Vehicle Code 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 Vehicle Code section 10851 relating to a vehicle worth less than $950, they are eligible for resentencing under Proposition 47.
In its supplemental briefing, the People concede appellant provided sufficient evidence to infer he was convicted of the theft portion of Vehicle Code section 10851, although they do not concede that factual dispute. In light of the trial court's denial on the grounds that Vehicle Code section 10851 convictions are categorically not eligible for resentencing, the People request a remand to provide appellant an opportunity to demonstrate eligibility for resentencing. (See Page, supra, 3 Cal.5th at p. 1188 [defendants bear the burden of demonstrating eligibility].) We accept the People's request. As our Supreme Court has explained that certain individuals convicted under Vehicle Code section 10851 are eligible for resentencing under Proposition 47, appellant should be provided an opportunity to demonstrate eligibility under that legal framework. Because we agree to remand this matter, we do not need to review our prior conclusion that appellant cannot demonstrate an equal protection violation.
DISPOSITION
The order is reversed and the matter remanded to provide appellant an opportunity to demonstrate eligibility under Proposition 47.