Opinion
E066088
04-26-2017
THE PEOPLE, Plaintiff and Respondent, v. CHAD JAMES GREEN, Defendant and Appellant.
John F. Schuck, 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, and Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1101502) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. John F. Schuck, 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, and Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Chad J. Green pleaded guilty to two counts of receiving stolen property in violation of Penal Code section 496, subdivision (a). Subsequently, defendant petitioned for relief pursuant to the Safe Neighborhoods and Schools Act, enacted by the voters as Proposition 47 in the November 2014 election.
On appeal, defendant contends that the trial court erroneously denied his Proposition 47 petition. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 2012, defendant pleaded guilty to two felony counts of receiving stolen property in violation of Penal Code section 496, subdivision (a). Count 1 involved jewelry; count two involved purses. He was sentenced to three years in prison.
In February 2015, defendant, having already served his sentence, petitioned to have the two felonies be reduced to misdemeanors pursuant to Penal Code section 1170.18, subdivision (f). No declaration from defendant or other evidence was included with the petition.
The trial court held a hearing on defendant's petition in March 2016. No evidence of the value of the property was presented at the hearing. The trial court expressed doubt that defendant would ever be able to show that the value of the stolen property was $950 or less, but acceded to defense counsel's request that the petition be denied without prejudice in case "sometime in the future" the defendant could show evidence of value.
II. DISCUSSION
A. Background Regarding Proposition 47.
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). Proposition 47 (1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2 and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Penal Code section 1170.18 provides, among other things, that "persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.'" (Rivera, supra, at p. 1093.)
Penal Code section 496, as amended by Proposition 47, now provides that if the value of the stolen property at issue does not exceed $950, the offense is a misdemeanor, unless it was committed by certain ineligible defendants. (§ 496.)
B. Analysis.
1. Defendant Had the Burden of Showing Eligibility for Relief, and Failed to Carry It.
Defendant argues that the trial court erred by failing to make a "statutorily required factual determination" of the value of the property stolen. This argument fails because the trial court made the correct factual determination that the evidence before it—more accurately, the complete lack of evidence before it—was insufficient to establish the value of the property at issue. A defendant who files a petition under Proposition 47 bears the burden of establishing he is eligible for the relief requested. (People v. Sherow (2015) 239 Cal.App.4th 875, 878-880 (Sherow).) Defendant did not carry his burden.
Defendant argues that we should decline to follow Sherow. Recent California Supreme Court authority, however, has foreclosed that line of argument. In People v. Romanowski (2017) 2 Cal.5th 903, the Supreme Court cited Sherow with approval, and stated that the "ultimate burden of proving [Penal Code] section 1170.18 eligibility lies with the petitioner." (Romanowski, supra, at p. 916).
In short, defendant has demonstrated no error by the trial court.
III. DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.