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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FREDDY CASIAS,

Defendant and Appellant.
H042065
(Santa Clara County
Super. Ct. No. C1369155)

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 Freddy Casias’s petition to reduce his conviction for vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5) to a misdemeanor and be resentenced accordingly. We affirm the order because defendant failed to show that the value of the vehicle did not exceed $950.



I. Statement of the Case
In February 2014, defendant pleaded no contest to vehicle theft with a prior conviction, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant also admitted the allegations that he had three prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to four years in state prison.
In January 2015, defendant brought a petition pursuant to Penal Code section 1170.18, subdivision (b), which was enacted as part of Proposition 47, for recall of his felony sentence and to be resentenced. About a month later, the trial court concluded that a Vehicle Code section 10851 conviction was not affected by Proposition 47 and denied the petition as to that conviction. However, the trial court granted the petition as to his conviction for possession of a controlled substance.

II. Statement of Facts
On November 4, 2013, defendant committed vehicle theft with a prior conviction when he drove and took a 1995 Oldsmobile Cutlass, which belonged to Mauricio Gutierrez. It was further alleged that the vehicle was taken and driven without Gutierrez’s consent and with the intent to deprive him of title to and possession of the vehicle.
At the sentencing hearing, defendant was ordered to pay $1,217.97 in restitution to Gutierrez.



III. Discussion
Defendant contends that the trial court erred when it denied his petition to reduce his Vehicle Code section 10851 conviction to 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,” 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).) 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; People v. Gonzales (2017) 2 Cal.5th 858, 863.)
The California Supreme Court held that 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, supra, 3 Cal.5th at p. 1187.) 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. (Id. 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 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, defendant’s petition did not include any information as to the value of the vehicle. He argues in his reply brief that the record establishes that the vehicle was approximately 18 years old when it was taken and thus “it is reasonable to infer that the car would be worth less than $950.” Defendant’s argument is not evidence. Moreover, the trial court ordered defendant to pay the victim $1,217.97 in restitution. As defendant points out, the record does not disclose whether the restitution order included compensation for the value of the stolen property, repair costs, or lost wages. (Pen. Code, § 1202.4, subd. (f)(3).) Nevertheless, we cannot assume error. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Since defendant failed to make a prima facie showing that the value of the vehicle did not exceed $950, the petition for resentencing was properly denied. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450.)




IV. 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.