Filed 5/1/18 P. v. Allison CA6
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN PATRICK ALLISON,

Defendant and Appellant.
H043417
(Santa Cruz County
Super. Ct. No. F23073)

This 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 Sean Patrick Allison’s petition to redesignate his conviction for unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)) as a misdemeanor. We affirm the order.

I. Background
A. Vehicle Code Section 10851 Conviction
In November 2012, defendant pleaded no contest to unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a) - count 1), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a) - count 2), driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a) - count 3), and reckless driving (Veh. Code, § 23103, subd. (a) - count 4). He also admitted that he had served two prior prison terms (Pen. Code, § 667.5) and had suffered a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). The trial court sentenced defendant to prison for a total term of two years and eight months.
As to count 1, the information charged defendant with “UNLAWFUL DRIVING OR TAKING OF A VEHICLE,” in violation of Vehicle Code section 10851, subdivision (a), and that defendant “did unlawfully drive and take a 1996 HONDA, . . . the personal property of ADAN ZEPEDA, without the consent of and with intent, either permanently or temporarily, to deprive the said owner of title to and possession of said vehicle.”
According to the probation report, police officers were dispatched based on a report of a reckless or intoxicated driver at 1:26 p.m. on July 14, 2012. The witness stated that the driver had been stopped in the middle of a lane and then drove a 1996 Honda Accord car into oncoming traffic. The driver subsequently drove into a parking lot and struck a stopping block with such force that the vehicle appeared to lift off the ground. When police officers arrived, defendant was slouched over the driver’s seat and displayed signs of intoxication. The ignition to the Honda had been tampered with. Adan Zepeda, the owner of the vehicle, did not know defendant and he had not given defendant permission to take the vehicle.

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 January 2016, defendant filed a petition for redesignation of his Vehicle Code section 10851 conviction. Defendant alleged that the value of the vehicle was less than $950 and he had completed his sentence for the conviction. The prosecutor took the position that this conviction was not eligible for redesignation under Proposition 47. Defendant filed points and authorities in which he outlined the legal bases for the petition. He also provided information as to the value of the vehicle, which was a 1996 Honda, had 157,213 miles, and was in poor condition. The California Highway Patrol (CHP) form No. 180 valued the vehicle at less than $300.
Following a hearing, the trial court denied the petition for redesignation on the ground that Vehicle Code section 10851, subdivision (a) convictions were not eligible for redesignation under Proposition 47. At defense counsel’s request, the trial court also found that the vehicle in the present case was worth less than $950.

II. Discussion
Defendant contends that the trial court erred when it denied his petition to resdesignate 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.)
The Page court stated that “Vehicle Code section 10851 may be violated in several ways,” but that only a certain type of violation of that section constitutes theft of a vehicle. (Page, supra, 3 Cal.5th at p. 1180.) The court explained: “Theft . . . requires a taking with intent to steal the property—that is, the intent to permanently deprive the owner of its possession.” (Id. at p. 1182.) “ ‘Unlawfully taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and the taking may be accomplished by driving the vehicle away. For this reason, a defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction . . . . On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete. . . . Therefore, a conviction under [Vehicle Code] section 10851(a) for posttheft driving is not a theft conviction . . . .’ [Citation.] The same is true when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal. But if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [Citation.]” (Id. at p. 1183.)
The Page court further explained: “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.)
“[A] petitioner for resentencing [or redesignation] under Proposition 47 must establish his or her eligibility . . . .” (People v. Sherow (2015) 239 Cal.App.4th 875, 878-880.)
Here, the trial court found that defendant had met his burden to show that the vehicle was less than $950. However, though the trial court concluded that Vehicle Code section 10851 convictions were categorically ineligible for redesignation under Proposition 47, defendant made no showing that his conviction was based on the theft of the vehicle. Accordingly, the trial court properly denied the petition.

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.











_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.