Opinion
E068652
03-08-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAWN DANIEL BRADEHORST, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Heidi Salerno, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB 1302028) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Reversed with directions. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Shawn Daniel Bradehorst, appeals from the order denying his Proposition 47 petition to reduce his felony conviction for violating Penal Code section 487b to a misdemeanor. (Pen. Code, §§ 490.2, 1170.18, subd. (f).)
All further statutory references are to the Penal Code. --------
II. BACKGROUND
In 2013, defendant pled guilty to one felony count of converting real estate valued at more than $250 into personal property in violation of section 487b. He was sentenced to two years in prison, to be served in county jail.
In January 2017, defendant petitioned to reduce his felony section 487b conviction to a misdemeanor. (§ 1170.18, subd. (f).) In his petition, defendant alleged he had completed his sentence, and that the value of the property he stole was "less than $950." In their response, the People claimed defendant was "not entitled to the relief requested" because "[n]o sufficient evidence as to amount of theft was provided." The court set a hearing on the petition.
At the April 26, 2017, hearing, defendant's counsel represented that the section 487b conviction involved the severance from realty of two copper pipes, one 11 feet long and one inch wide, the other seven feet long and one-half inch wide. Defendant's counsel submitted evidence that the "scrap value" of the pipes was no more than $50. The court asked whether the relevant value was not the "replacement value" of the copper pipes. Defense counsel said she could obtain the replacement of the pipes from Home Depot, if necessary.
The prosecutor said she did not dispute that "any fair market value" of the copper pipes was $950 or less. Instead, she claimed only that a section 487b felony conviction cannot be reduced to a misdemeanor under Proposition 47. The court took the matter under submission and said it would put the matter back on calendar if it "need[ed] any further information." The matter was not put back on calendar.
On May 2, 2017, the court issued an order denying the petition, which states: "The Court finds that the offense . . . does not qualify as an offense reducible" to a misdemeanor under Proposition 47. Defendant timely appealed.
III. DISCUSSION
Defendant claims his petition to reduce his section 487b felony conviction to a misdemeanor was erroneously denied, given that it was a theft conviction involving the theft of property worth $950 or less, and given that he presented undisputed evidence that the conviction was based on his theft of property worth $950 or less. We agree.
Proposition 47, enacted by the voters in November 2014, added several statutes to the Penal Code, including sections 490.2 and 1170.18. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Under subdivision (f) of section 1170.18, a person who has completed his or her sentence for a felony conviction which would have been a misdemeanor had Proposition 47 been in effect when the offense was committed, may apply to the court that entered the judgment of conviction to reduce the felony conviction to a misdemeanor. Section 490.2 provides: "(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . ." (Italics added.)
As our Supreme Court recently explained: "Under these provisions [sections 1170.18 and 490.2], a person serving a sentence for grand theft under Penal Code section 487 or another statute expressly defining a form of grand theft (e.g., Pen. Code, §§ 484e, 487a, 487i) is clearly eligible for resentencing under section 1170.18 if he or she can prove the value of the property taken was $950 or less." (People v. Page (2017) 3 Cal.5th 1175, 1182, italics added; People v. Romanowski (2017) 2 Cal.5th 903, 910-914.)
By its terms, section 487b is plainly "another statute expressly defining a form of grand theft." (People v. Page, supra, 3 Cal.5th at p. 1182.) It states: "Every person who converts real estate of the value of two hundred fifty dollars ($250) or more into personal property by severance from the realty of another, and with felonious intent to do so, steals, takes, and carries away that property is guilty of grand theft . . . ." (§ 487b, italics added.) Thus, if section 490.2 had been in effect when defendant committed the section 487b violation, defendant would have been guilty of petty theft—if the value of the copper pipes he stole was $950 or less. (§§ 490.2, subd. (a), 1170.18, subd. (f).)
The People concede that a felony section 487b conviction is grand theft and is therefore "eligible for resentencing under Proposition 47." They argue, however, that the matter must be remanded to the superior court to determine (1) whether the "value" of the stolen copper pipes was $950 or less, and (2) if so, whether the petition should have been denied because defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subds. (b), (c).) We disagree that the matter must be remanded to make either of these determinations.
To be sure, defendant had the initial burden of showing that the "value" of the copper pipes he stole was $950 or less. (People v. Johnson (2016) 1 Cal.App.5th 953, 964, 969; People v. Perkins (2016) 244 Cal.App.4th 129, 136-139; § 490.2, subd. (a).) But defendant met this burden by showing that the "scrap value" of the copper pipes was no more than $50. "As with any other theft that is punished based on the stolen property's value, 'the reasonable and fair market value shall be the test' for applying section 490.2's $950 threshhold. (§ 484, subd. (a).)" (People v. Romanowski, supra, 2 Cal.5th at p. 917.) When there is no legal market for the stolen property in question, courts may consider its "illicit sale" or black market value. (Ibid. [value of stolen access card information may be determined based on their "illicit sale" value].) The "scrap value" of the copper pipes was a reasonable estimate of their "reasonable and fair market value." (§ 484, subd. (a).)
After defendant showed that the value of the copper pipes was $950 or less, the burden shifted to the People to rebut this showing. (People v. Johnson, supra, 1 Cal.App.5th at p. 965.) The People did not do so. Instead, the prosecutor expressly did not "dispute" that "any fair market value" of the copper pipes was $950 or less. (Italics added.) Because they conceded the value issue, the People may not now claim the matter must be remanded to determine the value issue anew. Further, the record shows that the court ultimately accepted that the value of the copper pipes was $950 or less, given that it did not put the matter back on calendar after it took the matter under submission.
Further, the People did not claim in the first instance that defendant was ineligible for Proposition 47 relief because he posed "an unreasonable risk of danger to public safety." (§ 1170.18, subds. (b), (c); see generally People v. Bunyard (2017) 9 Cal.App.5th 1237, 1246.) An "'unreasonable risk of danger to public safety'" means "'an unreasonable risk'" that the petitioner will commit a "super strike"—that is, a felony described in section 667, subdivision (e)(2)(C)(iv). (People v. Jefferson (2016) 1 Cal.App.5th 235, 242.) Having failed to raise the dangerous issue below, the People may not now claim the matter must be remanded to determine the dangerousness issue.
IV. DISPOSITION
The May 2, 2017, order denying defendant's Proposition 47 petition to reduce his felony section 487b conviction to a misdemeanor petty theft conviction is reversed. The matter is remanded with directions to grant the petition and to reduce the conviction to a misdemeanor petty theft conviction.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.