Opinion
E063650
05-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN LAUER, Defendant and Appellant.
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, and Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. FVI05913 & FVI019883) 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, and Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
In two separate cases, defendant and appellant Jonathan Lauer pled guilty to one count of unlawful driving or taking of a vehicle. (Veh. Code, § 10851, subd. (a).) Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.)
In a previous nonpublished opinion, we affirmed the trial court's denial of defendant's petitions for resentencing pursuant to Proposition 47. (People v. Lauer (Apr. 12, 2016, E063650 [nonpub. opn.].) In this opinion, at the direction of the California Supreme Court, we reconsider the matter in light of People v. Page (2017) 3 Cal.5th 1175 (Page). For the reasons stated below, we affirm the trial court's order denying defendant's petitions without prejudice to consideration of subsequent petitions providing evidence of his eligibility.
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
On October 8, 2002, defendant was charged by felony complaint with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1) and receiving stolen property (Pen. Code, § 496d, subd. (a); count 2), in case No. FVI015913. On November 20, 2002, defendant entered a plea agreement, in which he pled guilty to count 1. The court sentenced him to 16 months in state prison, and count 2 was dismissed.
On September 10, 2004, defendant was charged by another felony complaint with unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) in case No. FVI019883. The complaint also alleged that defendant had served one prior prison term (Pen. Code, § 667.5, subd. (b)). On February 16, 2005, defendant entered a plea agreement, in which he pled guilty to driving a vehicle without the owner's permission. The court sentenced him to two years in state prison, and the prison prior allegation was dismissed.
On April 22, 2015, defendant filed petitions for resentencing in case Nos. FVI015913 and FVI019883, pursuant to Penal Code section 1170.18. The trial court denied the petitions, finding that defendant "does not satisfy the criteria in Penal Code [section] 1170.18 and is not eligible for resentencing," and that "[Vehicle Code section 10851, subdivision (a)] does not qualify under Prop[osition] 47." In our previous opinion in this matter, we affirmed the trial court's ruling, finding that the trial court correctly determined defendant to be ineligible for recall of sentence and resentencing pursuant to Penal Code section 1170.18. (People v. Lauer, supra, E063650, pp. 4-7.) Defendant sought review in the California Supreme Court. In an order filed March 21, 2018, the Supreme Court transferred the matter back to this court for reconsideration in light of Page, supra, 3 Cal.5th 1175. On March 22, 2018, we issued an order vacating our previous opinion and inviting the parties to submit supplemental briefing. Both the People and defendant did so.
II. DISCUSSION
In Page, the Supreme Court held that Vehicle Code section 10851 convictions "are not categorically ineligible for resentencing" under Proposition 47. (Page, supra, 3 Cal.5th at p. 1189.) The defendant seeking resentencing bears the burden of establishing his or her eligibility by showing that the vehicle was worth $950 or less and 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]." (Id. at p. 1188, fn. omitted.) The petition at issue in Page "included no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less." (Id. at p. 1189.) On that basis, the Supreme Court found the defendant's petition was properly denied, but that he was "entitled to an opportunity to file a new petition meeting the statutory requirements." (Ibid.)
In the present case, defendant's petitions were not supported by any evidence of the vehicle values, or whether defendant took the vehicles with or without the intent to permanently deprive the owner of possession. However, regarding case No. FVI015913, defendant argues that the pleadings establish that his conviction was based on theft because the "original . . . felony complaint charged [him] with both a violation of [Vehicle Code] section 10851 and of receiving stolen property, i.e., a motor vehicle under Penal Code section 496d, subdivision (a)." (Original underlining.) We disagree. The charge of receiving stolen property was dismissed as part of the plea agreement, and allegations are not evidence. Therefore, like the defendant in Page, defendant's petition was properly denied, but he is entitled to an opportunity to file another petition meeting the statutory requirements.
Defendant suggests that instead of affirming the trial court's denial of his petitions without prejudice to consideration of subsequent petitions, we should remand the matter with directions to allow defendant to make an evidentiary showing. That is not, however, the approach adopted by the Supreme Court in Page, supra, 3 Cal.5th at page 1190. Therefore, we decline to do so.
III. DISPOSITION
The trial court's orders denying defendant's petitions are affirmed without prejudice to consideration of petitions providing evidence of his eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORT
RAMIREZ
P. J. We concur: MCKINSTER
J. CODRINGTON
J.