Opinion
G051358
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO SALGADO, Defendant and Appellant.
Susan S. Bauguess, 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 Christen Somerville, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 12WF1843) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Jonathan S. Fish, Judge. Affirmed without prejudice. Susan S. Bauguess, 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 Christen Somerville, Deputy Attorney General, for Plaintiff and Respondent.
This case was transferred to us from the Supreme Court for reconsideration in light of its decision in People v. Page (2017) 3 Cal.5th 1175 (Page). Page held a defendant who is convicted of a felony for violating Vehicle Code section 10851 can obtain relief under Proposition 47 if the conviction was based on the theft of a vehicle, and the value of the vehicle was $950 or less. Because appellant Mario Salgado did not establish these elements when he petitioned for resentencing under Proposition 47, we affirm the trial court's decision to deny his petition. However, the affirmance is without prejudice to the filing of a future petition establishing his eligibility for relief.
Unless noted otherwise, all further statutory references are to the Vehicle Code. --------
PROCEDURAL BACKGROUND
In January 2013, appellant pleaded guilty to unlawfully taking or driving a vehicle pursuant to section 10851. As part of the plea agreement, the prosecution dismissed two prior strike allegations, and the trial court sentenced appellant to 16 months in prison. Following the passage of Proposition 47, appellant petitioned the trial court to reduce his felony conviction to a misdemeanor and resentence him accordingly. The court denied the petition, and we affirmed that order on appeal. We now reconsider our ruling in view of Page.
DISCUSSION
Proposition 47 reduced certain drug and theft-related felony offenses to misdemeanors. The initiative did not amend section 10851, which is punishable in the court's discretion as either a felony or a misdemeanor. (§ 10851, subd. (a); People v. Douglas (1999) 20 Cal.4th 85, 88.) However, as relevant here, Proposition 47 did add Penal Code section 490.2 to the books. That statute provides that "obtaining any property by theft where the value of the . . . property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor[.]" (Pen. Code, § 490.2.)
In Page, our Supreme Court addressed the interrelationship between Penal Code section 490.2 and section 10851. With respect to section 10851, the court recognized the statute encompasses both a theft offense and a nontheft offense. A theft occurs when the defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. And a nontheft offense occurs when the driving takes place after the theft is complete (known as "posttheft" driving), or when the defendant takes or drives the vehicle only to deprive the owner temporarily of possession (known as "joyriding"). (Page, supra, 3 Cal.5th at p. 1183.)
Page recognized that, "By its terms, Proposition 47's new petty theft provision, [Penal Code] section 490.2, covers the theft form of the . . . section 10851 offense." (Page, supra, 3 Cal.5th at p. 1183.) Thus, "'after the passage of Proposition 47, an offender who obtains a [vehicle] valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.' [Citation.]" (Ibid.) Conversely, when the value of the vehicle exceeds $950, or when the nontheft form of section 10851 is committed by virtue of posttheft driving or joyriding, the defendant may be charged with a felony. (Id. at pp. 1188-1189.)
Because the defendant's petition in Page "included no allegations, testimony or record references to show either that his . . . section 10851 conviction rested on the theft of the vehicle or that the vehicle's value was $950 or less" the Supreme Court determined his petition was properly denied. (Page, supra, 3 Cal.5th at p. 1189.) However, the court also acknowledged "the proper allocation of the burden of proof and the facts necessary to resentencing on a . . . section 10851 conviction were not set out expressly in the text of Proposition 47, and . . . neither had yet been judicially articulated when defendant submitted his petition[.]" (Ibid.) Page therefore concluded the defendant's petition should be denied "without prejudice" to his filing a new petition demonstrating his eligibility for relief. (Id. at p. 1190.)
Likewise here, appellant's petition for resentencing failed to establish the facts necessary to obtain relief under Proposition 47. Consequently, his petition was properly denied. However, as respondent concedes, appellant is entitled to file a new petition establishing his eligibility for relief now that Page has elucidated the conditions for doing so. Thus, our affirmance is without prejudice to the filing of a new petition should appellant have a factual basis for doing so.
DISPOSITION
The trial court's order denying appellant's petition for resentencing under Proposition 47 is affirmed without prejudice to his filing a new petition establishing his eligibility for relief.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.