Opinion
H044589 H044612 H044618
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JOSEPH GARRETT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. 76523, 78076, 80439, 85754, 205682, 206612)
Defendant William Joseph Garrett appeals the trial court's denial of his petitions for recall and resentencing under Proposition 47. Defendant filed a total of six petitions under Penal Code section 1170.18 for six prior convictions of burglary (§ 459), arguing his crimes would have each been considered misdemeanor shoplifting as set forth under section 459.5, which was enacted by Proposition 47, if that statute had been in effect at the time of his offenses. On appeal, he challenges the denial of two of his petitions and insists the trial court should have held hearings to determine his eligibility for relief since he completed the forms provided by Santa Clara County Superior Court. For the reasons set forth below, we find the trial court did not err when it summarily denied the Proposition 47 petitions, because defendant failed to state prima facie cases for relief. We affirm the orders.
Unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant is presently serving an indeterminate sentence of 25 years to life under the Three Strikes Law following his convictions of residential burglary, second degree burglary, and vehicle theft. When he was sentenced in 1998, the trial court found true five prior strike convictions, which were all second degree burglaries. Defendant appealed his convictions, arguing his prior strike offenses were not strike priors under the then newly-enacted definition of a serious felony burglary set forth under section 1192.7, subdivision (c)(18). (People v. Garrett (2001) 92 Cal.App.4th 1417, 1420.) In 2001, we affirmed the judgment. (Id. at p. 1434.)
In 2017, defendant filed six separate petitions under section 1170.18 seeking to reduce his six prior burglary convictions to misdemeanors and requested resentencing on two of his convictions.
On April 4, 2017, the trial court denied each of defendant's petitions, finding that he failed to establish the burglaries involved entry into a commercial establishment during regular business hours. Defendant appealed from all six denials, but his arguments on appeal pertain only to the denial of the petitions in case Nos. 76523 and 85754. Thus, we briefly recite the facts for these two pertinent petitions and the underlying convictions.
Defendant's appeals resulted in three cases with this court, case Nos. H044589, H044512, and H044618. We ordered the cases considered together for the purposes of briefing, oral argument, and disposition.
1. Case No. 76523 (1980 Burglary)
On July 9, 1980, a complaint was filed charging defendant with a count of felony burglary (§ 459) for entering "an apartment" with the intent to commit theft. Defendant waived a preliminary hearing and pleaded guilty or no contest to second degree burglary. He was placed on probation for a period of two years. It is unclear from the record what defendant stipulated to as a factual basis for his plea. However, a probation report prepared after defendant entered his plea summarized the factual circumstances of the offense. According to the report, defendant and a co-participant broke into an apartment while the occupant was away by removing the bedroom window's screen and forcing the window open. Once inside, defendant took 15 record albums, a radio, a cassette player, and a necklace.
On March 8, 2017, defendant filed a petition on the form provided by Santa Clara County Superior Court requesting designation of the burglary as a misdemeanor. Defendant checked the box alleging he was convicted of burglary, section 459, and attesting that the value of the stolen property in the case did not exceed $950. Defendant also checked a box requesting a hearing only if the petition was opposed. The People opposed the petition, stating that there was "insufficient evidence that this 460(b) qualifies" and that defendant poses an unreasonable risk to public safety as defined under section 1170.18, subdivision (c).
On April 4, 2017, the trial court summarily denied defendant's petition without a hearing. The trial court reasoned that defendant's burglary conviction could not qualify as "shoplifting" under section 459.5, because it did not involve a commercial establishment that was open during business hours. The court noted the charging complaint specifically set forth that defendant committed burglary of an "apartment." Thus, the court found defendant failed to state a prima facie case for relief.
2. Case No. 85754 (1982 Burglary)
On October 29, 1982, a complaint was filed charging defendant with felony burglary (§ 459) for entering a house with the intent to commit theft. Without a preliminary hearing, defendant pleaded guilty to a count of second degree burglary on November 19, 1982. He was sentenced to a total term of two years in prison. It is unclear from the record what defendant stipulated to as a factual basis for his plea. According to the probation report, which was prepared after his plea, defendant entered a house by prying open the side door of the garage. Defendant was seen inside the house by police when they were called to investigate, and he was apprehended shortly thereafter. Later, the victim reported some jewelry was missing. At the time, defendant maintained he did not take anything from the victim's house, because he had been caught in the act by police.
On March 8, 2017, defendant filed a petition on the form provided by Santa Clara County Superior Court requesting designation of his conviction as a misdemeanor. Defendant checked the box indicating the value of the stolen property or checks involved did not exceed $950 and also checked the box requesting a hearing if the petition was opposed. Defendant did not provide a description of the charged offense. The People opposed the petition, stating that "per CJIC, this docket is '459-2nd' conviction" and there was "[n]o information from petitioner that this is a qualifying offense." The People also claimed that defendant poses an unreasonable risk of danger to public safety as defined under section 1170.18, subdivision (c).
On April 4, 2017, the trial court denied defendant's petition without a hearing. Again, the trial court reasoned that defendant's burglary conviction could not qualify as "shoplifting" under section 459.5, because it did not involve a commercial establishment that was open during business hours. The court specifically noted the charging complaint stated that defendant committed burglary of "a house." Thus, the trial court concluded defendant failed to state a prima facie case for relief.
DISCUSSION
On appeal, defendant argues the summary denials of his petitions in case Nos. 76523 and 85754 were erroneous and denied him due process of law. He insists he is entitled to hearings on both petitions, because the records of convictions do not conclusively determine his eligibility for relief under section 1170.18. As we explain below, we reject his contentions and find the trial court did not err in denying his petitions.
Here, defendant challenges the interpretation and application of section 1170.18, which we review de novo on appeal. (People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).) " 'In interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles that govern statutory construction.' [Citation.] ' "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" ' [Citation.] 'In determining intent, we look first to the words themselves. [Citations.] When the language is clear and ambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.' " (Ibid.)
Proposition 47, also known as the Safe Neighborhoods and Schools Act, reduced penalties for certain theft and drug offenses by enacting and amending certain statutes. Section 459.5, enacted by Proposition 47, created the new crime of shoplifting. Section 459.5, subdivision (a) provides: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." Under section 459.5, subdivision (a), shoplifting "shall" be punished as a misdemeanor except when a person has previously been convicted of certain specified offenses. Additionally, under section 459.5, subdivision (b), "[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting," and "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property."
Proposition 47 also enacted section 1170.18. Under section 1170.18, a defendant who has already completed a felony sentence for a crime that would have been a misdemeanor under Proposition 47 if it had been in effect at the time of the offense may petition the trial court to have the felony conviction be designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)
Defendant argues his two prior burglary convictions constitute "shoplifting" under section 459.5, and he is therefore entitled to designation of his convictions to misdemeanors. As defendant acknowledges, a petitioner seeking resentencing under Proposition 47 (§ 1170.18, subd. (a)) bears the burden to establish his or her eligibility for relief. (Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Sherow (2015) 239 Cal.App.4th 875, 878-879 (Sherow).) The petitioner must "set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950." (Perkins, supra, at pp. 136-137.) It is incumbent on the petitioner to attach information or evidence showing he is eligible for resentencing. (Sherow, supra, at p. 880.) We find this same rationale is applicable to petitions to designate felonies as misdemeanors under section 1170.18, subdivisions (f) and (g). Thus, it was defendant's burden to demonstrate eligibility for both convictions.
Defendant argues he alleged facial eligibility to the extent permitted on Santa Clara County Superior Court's form for section 1170.18 petitions, and the records of convictions are unclear as to whether either of his convictions are eligible. He therefore insists that People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski) establishes that an evidentiary hearing was required under the circumstances presented in his case. In Romanowski, the defendant pleaded no contest to a felony violation of section 484e, subdivision (d), for stealing access card information. (Romanowski, supra, at p. 906.) The defendant petitioned the court for resentencing, arguing that his offense now qualified as petty theft under section 490.2, subdivision (a), which is defined as obtaining any property by theft where the value of the stolen item is less than $950. (Romanowski, supra, at p. 906.) In its decision in Romanowski, our Supreme Court agreed with the defendant that theft of access card information (§ 484e, subd. (d)) can qualify as petty theft under section 490.2, subdivision (a).
The Romanowski court then turned to the issue of eligibility. At the time of the defendant's conviction, the value of the access card stolen by the defendant was not an element of the crime. (Romanowski, supra, 2 Cal.5th at p. 916.) The Supreme Court noted that the ultimate burden of proving section 1170.18 eligibility lies with the petitioner. Sometimes, the uncontested information in the petition and in the record of conviction can establish eligibility. (Romanowski, supra, at p. 916.) In other cases, a petitioner's eligibility can turn on facts or information that are not in the uncontested petition or the record of conviction. The Romanowski court asserted that in those types of cases, "an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' " (Ibid.)
We disagree with defendant that Romanowski mandates a hearing under the circumstances presented in defendant's case. Nothing in Romanowski suggests that an evidentiary hearing is required whenever eligibility cannot be conclusively established based on the petition or the record of conviction. We agree with defendant that it is unclear whether he pleaded guilty or no contest to burglary of an apartment and a house, as was indicated on the charging documents in case Nos. 76523 and 85754, because we cannot discern from the record the stipulated factual basis for either of his pleas. Nonetheless, defendant's bare showing of eligibility was insufficient to require a hearing, because he failed to demonstrate a reasonable likelihood he may be entitled to relief. (Romanowski, supra, 2 Cal.5th at p. 916.) Defendant did set forth a prima facie case for relief, and an evidentiary hearing is unnecessary until he has done so. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095 (Sledge).)
The appellate court in Perkins, supra, 244 Cal.App.4th 129 contemplated a similar situation. There, the defendant filed a form petition seeking resentencing under section 1170.18, subdivision (a), indicating his conviction for receiving stolen property was eligible for resentencing since the value of the stolen property in his case was less than $950. The defendant, however, failed to identify the stolen property or attach any evidence, declaration, or include citations to the record of conviction to support the purported value of the property in question. (Perkins, supra, at p. 135.) The Perkins court concluded the defendant failed to meet his burden of providing evidence establishing eligibility for resentencing; thus, the trial court did not err in summarily denying the petition. (Id. at pp. 137-138.) The court further noted that a superior court will often be able to deny relief without a hearing on petitions that are facially deficient. (Ibid.)
Defendant, like the defendant in Perkins, did not provide any evidence to support his claim that his burglaries met the statutory elements of shoplifting under section 459.5. We acknowledge that defendant in this case complied with and completed the form provided by Santa Clara County Superior Court for section 1170.18 petitions. On that form, defendant checked the box attesting that his offenses qualified under Proposition 47, and the value of the stolen property in each case was less than $950. Defendant, however, did not provide record citations or attach any documentation to show the crimes were committed by entry into a commercial establishment during regular business hours and the value of the stolen property was less than $950. In other words, his petition was facially deficient.
Next, we must also reject defendant's claim that he was entitled to hearings on his petitions because he requested them. Although the forms defendant used permitted him to request hearings, there is no requirement that the trial court must grant his requests. The statutory scheme created by Proposition 47 does not obligate trial courts to hold hearings on every petition. Section 1170.18, subdivision (h) states that "[u]nless the applicant requests a hearing, a hearing is not necessary to grant or deny an application filed under subdivision (f)." The plain language of section 1170.18, subdivision (h) does not suggest the converse is true—that a hearing is mandatory if one is requested. This premise is also reflected on the face of the form that defendant used, which plainly states that "[a] hearing is not required to decide the petition." We note that if trial courts were required to hold hearings each time one is requested, absurd situations could result. Trial courts could be forced to hold hearings on petitions that are facially deficient, such as for convictions under statutes that do not qualify for relief under Proposition 47.
In his opening brief, defendant also argued his compliance with Santa Clara County Superior Court's form required that the trial court appoint him counsel. Defendant withdrew this argument in his reply brief. --------
We must thus reject defendant's claim that section 1170.18, subdivision (h) entitles him to a hearing. As we held earlier, defendant's petition failed to allege facts that would state a prima facie case for relief, and there is nothing on the petition that would have indicated to the trial court that further input from the parties by way of an evidentiary hearing would have been necessary to resolve any disputes. (Perkins, supra, 244 Cal.App.4th at pp. 138-139.) Although defendant insists that basic fairness demands that the trial court must honor his pleading as sufficient and grant a hearing since he used the standard form provided by Santa Clara County Superior Court, we do not believe defendant's compliance with the form relieves him of his burden under the law to establish a prima facie case for relief.
Furthermore, we note that defendant filed both petitions at issue on March 8, 2017. By that time, the law was settled that it is a petitioner's burden to establish his or her eligibility for relief under Proposition 47. (Perkins, supra, 244 Cal.App.4th at pp. 136-137; Sherow, supra, 239 Cal.App.4th at pp. 878-879.) Thus, it should have been clear to defendant at the time he filed his petitions that he should have set forth additional facts or presented evidence establishing his eligibility.
Lastly, we acknowledge the trial court's orders denying defendant's petitions purport to resolve the ultimate issue—that his convictions are ineligible under section 1170.18, subdivisions (f) and (g)—and not on the basis that he failed to state prima facie cases for eligibility. "However, on appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning." (Perkins, supra, 244 Cal.App.4th at p. 139.) Thus, we may affirm the trial court's order on any ground, even if it is not relied on by the trial court. (Ibid.) For these reasons, we need not address defendant's argument that the probation reports cannot provide evidence that his convictions are ineligible, because the reports are outside the record of conviction. Although the trial court reached the issue of eligibility, it is not necessary for us to do so on appeal.
Even if we were to reach the merits of this issue, we would not resolve the issue in favor of defendant. Defendant relies on People v. Burnes (2015) 242 Cal.App.4th 1452, in which this court held that the trial court erred in relying on a probation report when finding the defendant ineligible for resentencing under Proposition 36, the Three Strikes Reform Act. (Id. at pp. 1459-1460.) In Burnes, we found the probation report erroneously relied on by the court was neither admissible nor reliable and constituted double or multiple hearsay. (Id. at p. 1459.)
Burnes, however, involved a petition for resentencing under Proposition 36. "Like Proposition 36, the burden of proving a disqualifying prior conviction is on the People by a preponderance of the evidence. [Citation.] Unlike Proposition 36, 'the trial court is not limited to the record of conviction in its consideration of the evidence to adjudicate eligibility for resentencing under Proposition 47.' [Citation] 'While the petitioning and resentencing procedures under Proposition 36 and Proposition 47 appear similar (compare § 1170.126 with § 1170.18) what must be shown initially in support of the petition under each proposition is not. Thus, the potential sources of evidence to support the petition under each proposition are not the same. For this initial burden under Proposition 47, a petitioning defendant is entitled to present evidence of facts from any source to establish the guilt of the Proposition 47-sanctioned misdemeanor. [Citations.]' [Citation.] Likewise, the prosecution is entitled to produce evidence of facts from any source to establish a disqualifying prior conviction." (Sledge, supra, 7 Cal.App.5th at p. 1095.) "Accordingly, limited use of hearsay such as that found in probation reports is permitted, provided there is a substantial basis for believing the hearsay information is reliable." (Ibid.) The Sledge court found the hearsay statements found in the probation report were sufficiently reliable to be admissible, and the trial court thus did not err in considering them when determining the defendant's eligibility. (Id. at p. 1098.)
Here, defendant does not explain how or why the hearsay statements found in the probation reports at issue are unreliable and should not be considered in the context of his Proposition 47 petitions. Like the probation reports in Sledge, the probation reports in defendant's case were prepared by probation officers performing their official duties. The reports were also relied on by the original sentencing court and this court in defendant's first appeal. (Garrett, supra, 92 Cal.App.4th at pp. 1433-1434.) Although the trial court did not expressly rely on the probation reports when denying defendant's petitions, the statements contained in the reports bolster and reaffirm the trial court's conclusions that defendant's burglary convictions were not committed by entry into a commercial establishment during regular business hours.
Thus, we conclude the trial court did not err when it summarily denied defendant's petitions.
DISPOSITION
The orders are affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.