Opinion
H043415
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MORGAN RAMSEY REES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. No. F24434)
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 Morgan Ramsey Rees's petition to redesignate his conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851) as a misdemeanor. We affirm the order because defendant failed to show that he was convicted of a theft offense.
I. Background
A. Vehicle Code Section 10851 Conviction
In May 2013, defendant pleaded no contest to unlawful driving or taking of a vehicle (Veh. Code, § 10851 - count 1) and driving under the influence of drugs (Veh. Code, § 23152, subd. (a) - count 2). As to count 1, the information charged that on or about March 16, 2013, defendant "did unlawfully drive and take a . . . 1987 Toyota pickup . . . without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle."
The remaining charges of receiving stolen property, a motor vehicle (Pen. Code, § 496d, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), hit and run driving (Veh. Code, § 20002, subd. (a)), driving without a license (Veh. Code, § 12500, subd. (a)), and possession of burglar tools (Pen. Code, § 466) were dismissed. --------
The trial court suspended imposition of sentence and placed defendant on probation for three years. After several probation violations, the trial court terminated defendant's probation on June 2, 2014, and imposed an eight-month prison term to run consecutively to an unrelated sentence.
B. Petition for Redesignation as 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," when 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.)
In February 2016, defendant filed an application for redesignation of his conviction as a misdemeanor (Pen. Code, § 1170.18, subd. (f)). The trial court found that the vehicle was worth less than $950, but denied the application.
II. Discussion
Defendant contends that the trial court erred when it denied his petition to redesignate his Vehicle Code section 10851 conviction.
The California Supreme Court held that a defendant who has been convicted of Vehicle Code section 10851 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.)
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 [or redesignation] 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, the trial court found that defendant had met his burden to show that the value of the vehicle was less than $950. However, defendant made no showing that his conviction was based on the theft of the vehicle. Accordingly, the trial court properly denied the petition. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450.)
III. Disposition
The order is affirmed without prejudice to consideration of a subsequent petition that supplies evidence of defendant's eligibility for redesignation of his Vehicle Code section 10851 conviction.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.