Filed 5/1/18 P. v. Blake CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

SHAWNCEY BLAKE,

Defendant and Appellant.
H043040
(Santa Clara County
Super. Ct. Nos. B1369406, F1451055)

Defendant Shawncey Blake appeals from an order denying his petition to have his Vehicle Code section 10851 conviction resentenced as a misdemeanor pursuant to Proposition 47.
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Page (2017) 3 Cal.5th 1175, 1179 (Page).) Proposition 47 “reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies.” (Page, at p. 1179.) Proposition 47 added Penal Code section 490.2, which provides that “obtaining any property by theft,” where 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).) Thus, a Vehicle Code section 10851 conviction 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, at p. 1187.) 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 a misdemeanor. (Pen. Code, § 1170.18, subds. (a), (b) & (g); People v. Gonzales (2017) 2 Cal.5th 858, 863.)
We affirm the order since defendant failed to state a prima facia case for relief under Proposition 47.

I. Statement of the Case
On November 8, 2013, the Santa Clara County District Attorney filed a complaint in case No. B1369406 charging defendant with theft or unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). The complaint alleged that defendant “did drive and take a vehicle, a Ford F-150, belonging to U-Haul, without the consent of the owner and with the intent to deprive the owner of title to and possession of the vehicle.” The complaint also alleged that defendant had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).
Five days later, defendant pleaded no contest to the charge and admitted the prior prison term allegations in exchange for a negotiated sentence of six months in county jail followed by 54 months of mandatory supervision. The trial court subsequently sentenced defendant to 54 months of mandatory supervision.
In May 2014, the Santa Clara County District Attorney filed a complaint in case No. F1451055 charging defendant with forgery (Pen. Code, § 470, subd. (d)). It was also alleged that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).
In July 2014, defendant pleaded no contest to the charge and admitted three of the four prior prison term allegations in exchange for three years in prison concurrent to the term in case No. B1369406.
In August 2014, the trial court imposed the negotiated sentence in case No. F1451055, struck punishment for two of the prior prison terms findings, terminated mandatory supervision in case No. B1369406, and ordered defendant to serve the balance of his sentence in case No. B1369406 while concurrently serving his sentence in case No. F1451055. Defendant filed a notice of appeal in both cases.
On January 23, 2015, defendant filed a petition for resentencing in case Nos. B1369406 and F1451055. The trial court denied the petition for lack of jurisdiction due to defendant’s pending appeal. Defendant filed a notice of abandonment and the appeal was dismissed.
On October 13, 2015, defendant filed a petition for writ of habeas corpus and a petition for resentencing. He alleged that he was entitled to have his sentence reduced under Penal Code section 1170.18, subdivision (f). He referred to his prior felony convictions and also argued that one of the convictions underlying a prison prior had been reduced to a misdemeanor. On the same day, the trial court construed the habeas petition as a petition for resentencing to misdemeanor terms defendant’s convictions for theft or unauthorized use of a vehicle in case No. B1369406 and forgery in case No. F1451055. The trial court concluded that Penal Code section 1170.18 did not authorize misdemeanor treatment of Vehicle Code section 10851 convictions. It also found that defendant had failed to state a prima facie case for relief in case No. F1451055.
On October 14, 2015, the trial court denied the petition to have defendant’s sentence reduced by one year based on the reduction to a misdemeanor of the conviction underlying the prison prior.
Defendant filed a timely notice of appeal from the October 13, 2015 order.
On July 19, 2017, defendant filed a motion to construe the notice of appeal to include case No. F1451055 and the October 14, 2015 order. This court denied the motion “without prejudice to reapplying with sufficient support regarding oversight and timeliness.” Defendant did not renew the motion.

II. Discussion
Defendant contends that he was eligible for relief under Proposition 47 for his convictions for theft or unauthorized use of a vehicle and forgery. He also contends that Proposition 47 applies to his prior prison term enhancement.
We first consider whether this court has jurisdiction to determine the merits of his contentions regarding his forgery conviction and his prior prison term enhancement. “ ‘Unless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.’ [Citations.]” (People v. Lyons (2009) 178 Cal.App.4th 1355, 1361.)
Defendant concedes in his reply brief that his notice of appeal did not include either his forgery conviction in case No. F1451055 or the October 14, 2015 order regarding his prior prison term enhancement in case No. B1369406. Though this court denied his motion to construe the notice of appeal to encompass case No. F1451055 and the October 14, 2105 order “without prejudice to reapplying with sufficient support regarding oversight and timeliness,” defendant did not renew his motion. Accordingly, this court does not have jurisdiction to consider defendant’s contentions regarding his forgery conviction or his prior prison term enhancement.
We next consider whether defendant was entitled to relief under Proposition 47 for his Vehicle Code section 10851 conviction.
The Attorney General contends that defendant’s petition for writ of habeas corpus sought to have his sentence reduced solely on the ground that the felony conviction underlying one of the prison priors had been reduced to a misdemeanor. Thus, he contends that the judgment is void and must be reversed, because the trial court did not have jurisdiction to consider whether defendant was entitled to Proposition 47 relief for his conviction for theft or unauthorized use of a vehicle.
We disagree with the Attorney General’s characterization of defendant’s habeas petition. In his habeas petition, defendant listed the Vehicle Code section 10851 conviction and the relevant case No. as B1369406. Defendant stated that the grounds for relief were “Petition for recall of sentence; resentencing procedures; reduction of prior felony to misdemeanors.” As supporting facts, defendant asserted not only that a felony conviction underlying one of his prison priors had been reduced to a misdemeanor in September 2015, but also that he had filed a prior petition for resentencing, which he had submitted on January 23, 2015. This prior petition sought reduction of his convictions in case No. B1369406. The trial court denied the prior petition due to his pending appeal. Defendant’s habeas petition stated: “Now that my appeal is abandoned, I ask the Court to consider my petition and reduce my sentence as if I had not been sentenced.” Given that the habeas petition referred to the relevant case and his prior petition for resentencing, which was submitted before his felony conviction underlying his prison prior was reduced to a misdemeanor, the trial court had jurisdiction to construe defendant’s habeas petition as a petition for resentencing of his convictions for theft or unauthorized use of a vehicle.
Regarding the merits of defendant’s petition for resentencing, we note that a defendant has the burden to show his eligibility for relief under Penal Code section 1170.18. (Pen. Code, § 1170.18, subds. (a) & (f); People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow).) “To establish eligibility for resentencing 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, italics added.) Here, defendant concedes that he failed to meet this burden. Thus, the petition for resentencing was properly denied. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450.)
The Attorney General argues that defendant should not be allowed to amend his petition, because he has already been afforded the opportunity to meet his burden in the trial court. We disagree. The California Supreme Court set forth the eligibility requirements for resentencing in cases involving Vehicle Code section 10851 in 2017, which was after defendant filed his petition. (Page, supra, 3 Cal.5th 1175.) Since the law was unsettled when defendant filed his petition, defendant is entitled to file another petition meeting the requirements outlined in Page.

III. Disposition
The order is affirmed without prejudice to consideration of a subsequent petition that supplies evidence of defendant’s eligibility for resentencing of his Vehicle Code section 10851 conviction.







_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.