Filed 5/24/18; Certified for Publication 6/18/18 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



THE PEOPLE,                                                         D067313

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN335521 )

ERNEST OROZCO ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Michael J.

Popkins, Judge. Affirmed.

         Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan
Beale, Kristen Kinnaird Chenelia, and Daniel Hilton, Deputy Attorneys General, for

Plaintiff and Respondent.

       Ernest Orozco pled guilty to one count of unlawfully driving a vehicle of another

without permission (Veh. Code, § 10851, subd. (a)), and one count of receiving a stolen

vehicle (Pen. Code, 1 § 496d, subd. (a)). Subsequently, California voters enacted

Proposition 47, the Safe Neighborhoods and Schools Act of 2014, which among other

things, established a procedure for specified classes of offenders to have their felony

convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.)

       In a previous unpublished opinion, we affirmed the trial court's denial of Orozco's

petition for resentencing under Proposition 47. (People v. Orozco (May 25, 2016,

D067313) [nonpub. opn.].) In this opinion, at the direction of the California Supreme

Court, we reconsider the matter in light of People v. Page (2017) 3 Cal.5th 1175 (Page).

We affirm the trial court's order denying Orozco's petition without prejudice to

consideration of a subsequent petition providing evidence of eligibility.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On August 7, 2014, the police pulled Orozco over and a routine license plate

check showed the car Orozco was driving had been reported stolen. Orozco was the

vehicle's sole occupant, the car's ignition was damaged, and it was running without a key.

The police report listed the car's value at $301.




1      Statutory references are to the Penal Code unless otherwise specified.
                                              2
       After his arrest, Orozco pled guilty to one count of unlawfully driving a vehicle of

another without permission (Veh. Code, § 10851, subd. (a)), and one count of receiving a

stolen vehicle (§ 496d, subd. (a)). Orozco also admitted three prior convictions for

violations of Vehicle Code section 10851, subdivision (a), and eight prison priors under

section 667.5. His prior felony conviction under Vehicle Code section 10851 required

him to be sentenced as a felon under section 666.5 for both of his present violations.

(§ 666.5, subd. (a).)

       After Orozco entered his guilty plea, California voters passed Proposition 47.

Orozco then filed a petition under Proposition 47 to reduce the felonies to misdemeanors.

The trial court denied Orozco's petition, finding Proposition 47 does not apply to section

496d and Vehicle Code section 10851, subdivision (a), and sentenced him to one year in

prison with mandatory supervision for three years after his release. The trial court stayed

the sentence for Orozco's section 496d violation under section 654. Orozco timely

appealed the order.

       In our previous opinion in this matter, we affirmed the trial court's order,

concluding that the trial court correctly determined Orozco to be ineligible for relief

under Proposition 47. (People v. Orozco, supra, D067313.) Orozco sought review in the

California Supreme Court. The court issued a "grant and hold" order deferring further

briefing pending its decision in Page. (See People v. Orozco, review granted Aug. 10,

2016, No. S235603.) On November 30, 2017, our high court issued its opinion in Page,

supra, 3 Cal.5th 1175. On March 21, 2018, the Supreme Court transferred this case back

to this court for reconsideration in light of Page.

                                              3
                                       DISCUSSION

                                               I

    UNLAWFULLY DRIVING A VEHICLE OF ANOTHER WITHOUT PERMISSION

       Orozco asserts that the superior court erred when it denied his petition to reduce

his felony under Vehicle Code section 10851, subdivision (a). Although we conclude the

superior court did not err, as we explain below, Orozco is entitled to bring a new petition

and establish his eligibility for relief under Proposition 47.

       In Page, the California Supreme Court determined that "Proposition 47 makes

some, though not all, [Vehicle Code] section 10851 defendants eligible for resentencing."

(Page, supra, 3 Cal.5th at p. 1184.) Specifically, the 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, at

p. 1187; see id. at pp. 1184-1185 [similar eligibility criterion for resentencing and for

redesignation after the sentence has been completed].)

       Our high court explained that a person who has been convicted of grand theft is

"clearly eligible" for resentencing under section 1170.18 if the value of the property taken

was $950 or less. (Page, supra, 3 Cal.5th 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 section 10851, it is, in effect, a form of

grand, rather than petty, theft." (Page, supra, at pp. 1186-1187.)



                                               4
       The court further explained: "Theft . . . requires a taking with intent to steal the

property—that is, the intent to permanently deprive the owner of its possession." (Page,

supra, 3 Cal.5th 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[, subdivision] (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 section

10851[, subdivision] (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.' " (Page, supra, at p. 1183; italics omitted.) Consequently,

"[a] person convicted before Proposition 47's passage for vehicle theft under Vehicle

Code section 10851 may . . . be resentenced under section 1170.18 if the person can show

the vehicle was worth $950 or less." (Page, supra, at p. 1180.)

       "A defendant seeking resentencing under section 1170.18 bears the burden of

establishing his or her eligibility, including by providing in the petition a statement of

personally known facts necessary to eligibility." (Page, supra, 3 Cal.5th at p. 1188.) If

                                               5
the defendant fails to meet this burden, the trial court's order denying the petition must be

affirmed, even if the trial court expressed a different reason for denying the petition.

(People v. Perkins (2016) 244 Cal.App.4th 129, 139.) "[O]n appeal we are concerned

with the correctness of the superior court's determination, not the correctness of its

reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis

presented by the record whether or not relied upon by the trial court." ' " (Ibid.)

       To establish eligibility for resentencing or redesignation for a Vehicle Code

section 10851 conviction, the defendant must show that (1) the conviction was based on

theft of the vehicle, rather than on posttheft driving or on a taking without the intent to

permanently deprive the owner of possession, and (2) the vehicle was worth $950 or less.

(Page, supra, 3 Cal.5th at p. 1188.) In Page, the court found that the defendant's

"uncounseled petition" was properly denied where it contained "no allegations,

testimony, or record references to show either that his Vehicle Code section 10851

conviction rested on theft of the vehicle or that the vehicle's value was $950 or less."

(Page, supra, at pp. 1180, 1189.) The court determined, however, that the defendant was

"entitled to an opportunity to file a new petition" because "the proper allocation of the

burden of proof and the facts necessary to resentencing on a Vehicle Code 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." (Page, supra, at

p. 1189.) The court concluded that the trial court's order denying the defendant's petition

should be "affirmed without prejudice to consideration of a petition providing evidence

of his eligibility." (Id. at p. 1190.)

                                              6
       Here, like Page, Orozco's petition contained no allegations, testimony, or record

references showing that (1) his Vehicle Code section 10851 conviction was based on the

theft of the vehicle, and (2) the vehicle's value was $950 or less. Instead, Orozco asked

the superior court to examine the record to determine whether the violation was a theft,

and if the value of the subject vehicle was $950 or less. Therefore, the court properly

denied Orozco's petition. (Page, supra, 3 Cal.5th at p. 1189.) However, because his

petition was filed before "the proper allocation of the burden of proof and the facts

necessary to resentencing on a Vehicle Code section 10851 conviction" were clearly

established, Orozco is "entitled to an opportunity to file a new petition" to "allege and,

where possible, provide evidence of the facts necessary to eligibility for resentencing

under section 1170.18." (Page, supra, at p. 1189.)

                                              II

                            RECEIVING A STOLEN VEHICLE

       Additionally, Orozco contends the court should have reduced his violation of

section 496d, subdivision (a) from a felony to a misdemeanor under section 1170.18.

Section 496d is not among the statutes listed in section 1170.18, subdivision (a). Yet,

Orozco argues this felony offense should have been reduced to a misdemeanor because a

violation of section 496d, subdivision (a) is subject to the provisions of section 496,

which is one of the enumerated statutes per section 1170.18, subdivision (a). Put

differently, Orozco maintains that that the voters intended that all theft-related offenses

be treated as misdemeanors where the value of the property is less than $950.



                                              7
       Similar arguments were rejected in People v. Varner (2016) 3 Cal.App.5th 360

(Varner). 2 There, the court found "no indication that the drafters of Proposition 47

intended to include section 496d." (Varner, supra, at p. 366.) The court distinguished

"the changes made by Proposition 47 to the crimes of grand theft and petty theft," which

were accomplished in part by the addition of section 490.2, which defines petty theft and

references " 'any other provision of law defining grand theft.' " (Varner, supra, at

p. 367.) The court noted that no such broad language had been included in the changes

made to section 496, subdivision (a), and that section 496, subdivision (a) "contains no

reference to section 496d." (Varner, supra, at p. 367.) This indicated that "the drafters

[of Proposition 47] intended section 496d to remain intact and intended for the

prosecution to retain its discretion to charge section 496d offenses as felonies." (Varner,

supra, at p. 367.) The court also rejected the notion that section 490.2 applied to

receiving stolen property offenses, finding that if so, there would have been be "no need

to amend section 496." (Varner, supra, at p. 367.)

       We agree with Varner, supra, 3 Cal.App.5th 360 and adopt the court's analysis in

that case here. Also, we observe that nothing in Page alters that analysis. In Page,

supra, 3 Cal.5th 1175, the court interpreted section 490.2, subdivision (a), which

specifically defines theft crimes, and there is no equivalent language in the receiving



2     On November 22, 2016, the California Supreme Court granted review of Varner
(No. S237679) and ordered further action deferred pending its decision in People v.
Romanowski (2017) 2 Cal.5th 903 (Romanowski). On August 9, 2017, after the
Romanowski opinion was filed, the California Supreme Court dismissed review in
Varner, leaving the case published. (See Cal. Rules of Court, rule 8.1115(e).)
                                             8
statutes. The Supreme Court concluded that Proposition 47 applies to certain violations

of Vehicle Code section 10851 because of the broad, preemptive language of section

490.2. Yet, Proposition 47 did not enact similar language in the context of receiving

stolen property. Thus, Page does not provide support for Orozco's claim regarding

section 496d, subdivision (a).

                                      DISPOSITION

       The order is affirmed without prejudice to consideration of a new petition

providing evidence of Orozco's eligibility for relief pursuant to Proposition 47 for his

conviction under Vehicle Code section 10851.



                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



HALLER, J.



O'ROURKE, J.




                                             9
Filed 6/18/18
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                        D067313

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. SCN335521 )

ERNEST OROZCO ,

        Defendant and Appellant.


THE COURT:

        The opinion in this case filed May 24, 2018 was not certified for publication.

       IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and

      ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page one of said opinion be deleted and the opinion herein be published in the Official
Reports.



                                                                  HUFFMAN, Acting P. J.

Copies to: All parties
