Opinion
E067131
03-14-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD TERAN GURROLA, Defendant and Appellant.
Cynthia M. Jones, 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, Arlene A. Sevidal and Elizabeth Renner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ICR8132) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Cynthia M. Jones, 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, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Ronald Teran Gurrola was charged by felony complaint with receiving stolen property (Pen. Code, former § 496, counts 1 & 2) and theft of property valuing more than $400 (§ 487, count 3). Defendant pled guilty to count 1, and on August 24, 1983, a trial court sentenced him to two years in state prison. The court dismissed counts 2 and 3 in the interest of justice. On May 11, 2015, defendant filed a petition for resentencing, pursuant to section 1170.18 (Proposition 47), alleging that he believed the value of the property did not exceed $950. The court denied the petition without prejudice because it was unable to determine the value of the stolen property. Defendant filed a request to reconsider relief. The court denied the petition again.
All further statutory references will be to the Penal Code, unless otherwise noted.
We note that defendant filed a motion to augment the record on March 13, 2017, with regard to the clerk's transcript and reporter's transcript from a previously dismissed appeal, case No. E065315. This court deemed the motion to be a request for judicial notice. We reserved ruling on the request for consideration with the appeal, and we now grant the request.
The appellate record does not contain a copy of the request; rather, it includes a minute order indicating that a hearing was set for "Prop 47 Reconsideration."
Defendant now appeals from the denial of his petition for resentencing. We affirm.
PROCEDURAL BACKGROUND
In 1983, defendant pled guilty to one count of receiving stolen property (chain link fencing), and the court sentenced him to two years in state prison.
The record does not contain a plea agreement or defendant's actual plea. Defendant states in his opening brief that the court reporter present for the plea hearing has indicated that she no longer has the notes for that case.
On May 11, 2015, defendant filed a petition for resentencing, pursuant to Proposition 47, to have his felony designated as a misdemeanor. (§ 1170.18.) The People filed a response that defendant was not entitled to relief, stating that district attorney "does not have report." A minute order dated November 24, 2015, indicates that the court "[did] not have report," and that it "[n]eed[ed] [the] value."
On January 8, 2016, the court held a hearing on the petition. At the outset of the hearing, defense counsel stated, "Unfortunately, we only have a Complaint and the documentation from the court file. It was micro-filmed. There's no amount listed." Defense counsel noted that the stolen property was two rolls of chain link fence and gates. Defense counsel priced chain link fencing at Home Depot, but acknowledged that she did not know the size of the rolls or the gate in this case. The court denied defendant's petition for his inability to prove the value of the stolen property was under $950. Defense counsel requested the court to deny the petition without prejudice, since she said she may try and obtain the police report. The court then denied the petition without prejudice.
Defendant requested reconsideration of his Proposition 47 petition, on or around September 2, 2016. The People filed an opposition, contending that defendant was ineligible for relief because he had a prior conviction for a "serious and/or violent felony offense punishable in California by life imprisonment or death." (§§ 1170.18, subd. (i), 667, subd. (e)(2)(C)(iv).) The People pointed out that Proposition 47 did not specify whether a court is limited to considering the punishment for the substantive offense itself, or whether a court may consider the "entirety of the circumstances, including enhancements and allegations." The People proceeded to argue that defendant had a 1997 conviction for residential burglary, which was his third strike offense that resulted in a life sentence under California law, thus rendering him ineligible for resentencing.
The court held a hearing on September 30, 2016. Defense counsel stated that the People were asserting that defendant was ineligible for Proposition 47 relief due to the fact that he was currently serving a 25-year-to-life sentence on another matter. Defense counsel argued his belief that "that is [not] written in the statute." The court replied that "the statute says if you're serving a life sentence." It then denied the petition, finding defendant ineligible on that basis.
DISCUSSION
Defendant Failed to Establish That He Was Eligible for Relief
Under Proposition 47
Defendant argues that he was entitled to have his felony conviction for receiving stolen property reduced to a misdemeanor, pursuant to Proposition 47, because the court erred in holding that his third-strike sentence rendered him ineligible for resentencing under section 1170.18, subdivision (i). We affirm the court's ruling.
A. Proposition 47
On November 4, 2014, voters enacted Proposition 47, and it went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "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)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." (Id. at p. 1092.) This section does not apply to a person who has one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).)
B. Defendant Failed to Establish His Eligibility for Relief
The trial court denied defendant's petition, finding him ineligible for relief since he was serving a life sentence. However, the court in People v. Hernandez (2017) 10 Cal.App.5th 192 recently held that a defendant "was not disqualified from resentencing under section 1170.18, subdivision (i) by virtue of the fact that his robbery conviction was punished by an indeterminate life term under the Three Strikes law, since robbery itself is not '[a] serious and/or violent felony offense punishable in California by life imprisonment or death' under section 667, subdivision (e)(2)(C)(iv)(VIII)." (Id. at p. 204.) Assuming without deciding that the court improperly found defendant ineligible for relief since he was serving a life sentence, we nonetheless affirm the denial. "[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." (People v. Geier (2007) 41 Cal.4th 555, 582 (Geier).)
We note that the record on appeal does not contain any evidence (e.g., an abstract of judgment) showing that defendant is serving a life sentence. --------
The trial court originally denied defendant's petition because he failed to establish the value of the stolen property received. "[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) Defendant had the burden to show the value of the stolen property received did not exceed $950 to establish eligibility for resentencing under section 1170.18. (§§ 1170.18, subd. (b), 496, subd. (a).) He did not provide any supporting documentation, and defense counsel admitted there was no documentation in the court file containing an amount. Thus, defendant failed to meet his burden of proof. The court denied the petition without prejudice because defense counsel indicated that she may try to obtain the police report. However, defendant did not file another petition or attempt to establish the value of the stolen property. He simply asked the court to reconsider his petition.
Because defendant has still not established his eligibility for resentencing under Proposition 47, we must affirm the court's denial of his petition. (See Geier, supra, 41 Cal.4th at p. 582.)
DISPOSITION
The judgment is affirmed without prejudice for defendant to request a new hearing regarding the value of the stolen property.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. I concur: MILLER
J.
Slough, J., Dissenting.
I respectfully disagree with the majority opinion. The question on appeal is whether the trial court erred by holding Gurrola was ineligible to have his 1983 felony conviction for receiving stolen property reduced to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18, subds. (a) & (b)), because he had a prior conviction for a "serious and/or violent felony offense punishable in California by life imprisonment or death." (Pen. Code, §§ 1170.18, subd. (i), 667, subd. (e)(2)(C)(iv)(VIII).) The trial court held he was not eligible, but the majority dodges the issue and affirms on the alternative basis that Gurrola did not meet his burden of proving the value of the property he stole was less than $950. (Maj. opn. ante, pp. 5-6.) I write separately because I believe we should address the legal issue presented to us directly and we should not affirm on the ground Gurrola failed to meet his burden of proof on value.
First, I believe it is clear the trial court erred by holding Gurrola was ineligible for Proposition 47 relief as a matter of law. The argument for holding him ineligible turns on his 1997 conviction for residential burglary. That conviction was his third strike offense and therefore resulted in a 25-year-to-life sentence under California law. The People argued and the trial court accepted the fact Gurrola was serving a life sentence rendered him categorically ineligible for relief under Proposition 47 because such relief is not available to "a person who has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667." (Pen. Code, § 1170.18, subd. (i).)
The offenses listed in Penal Code section 677, subdivision (e)(2)(C)(iv) are: (1) any offense defined as "sexually violent" under Welfare and Institutions Code section 6600, subdivision (b); (2) oral copulation, sodomy, or sexual penetration of a child; (3) a lewd or lascivious act involving a child; (4) any homicide or attempted homicide; (5) solicitation to commit murder; (6) assault with a machine gun on a peace officer or firefighter; and (7) possession of a weapon of mass destruction. The list of offenses also includes a catchall category—"[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death." We commonly refer to these disqualifying offenses as "super strikes." (People v. Sledge (2017) 7 Cal.App.5th 1089.)
Residential burglary is not a super strike on its own. However, the offense can result in a life sentence, as it did for Gurrola, if the offense is a defendant's third strike. The question we must answer is whether a residential burglary is a disqualifying super strike—a "serious and/or violent felony offense punishable . . . by life imprisonment"—when it is a third strike. I believe we should answer this question with an unequivocal no. The California Supreme Court has already rejected the trial court's reasoning in another context and the Sixth District recently rejected it in the context of Proposition 47 resentencing petitions. (People v. Thomas (1999) 21 Cal.4th 1122, 1127 (Thomas); People v. Hernandez (2017) 10 Cal.App.5th 192 (Hernandez).)
In Thomas our high court faced the question whether Penal Code section 667.5, subdivision (c)(7)'s definition of "violent felony" as "[a]ny felony punishable by death or imprisonment in the state prison for life" referred to felonies that themselves carry life sentences—such as aggravated kidnapping (Pen. Code, § 209)—or, as the People argued, referred more expansively to any felony punishable by life imprisonment under the "Three Strikes" law. (Thomas, supra, 21 Cal.4th at p. 1127.) The Court rejected the People's interpretation as overbroad because it would sweep all third strike offenses—including the nonviolent ones—into the definition of a violent felony. (Ibid.) The Court found it was "appropriate to limit" section 667.5's definition of violent felony "to defendants whose current offenses, in and of themselves, and without reference to the punishment accorded under the three strikes law, are violent." (Thomas, at p. 1129.) Thus, it concluded the phrase "punishable by . . . imprisonment in the state prison for life" in section 667.5 refers to an "offense that itself carries a punishment of life imprisonment," not one that carries a life sentence "merely due to [the offender's] status as a recidivist." (Thomas, at p. 1127, italics added.)
As the Sixth District recently held in Hernandez, the same logic applies to interpreting Penal Code section 667.5, subdivision (e)(2)(C)(iv)(VIII). (Hernandez, supra, 10 Cal.App.5th at p. 195.) The defendant in Hernandez had been convicted of second degree robbery in 1997 and, because that offense was his third strike, had received an indeterminate term of 25 years to life in prison. (Ibid.) The People argued the defendant's robbery conviction disqualified him for resentencing, urging the same interpretation of "punishable . . . by life imprisonment" the People advocate for here. (Id. at pp. 198-199.) Relying on our high court's reasoning in Thomas, the court concluded the phrase "means an offense that itself has an associated statutory punishment of life imprisonment or death, not an offense such as robbery, which has an associated statutory punishment of two, three, or five years." (Hernandez, at p. 202.) "An offense such as robbery is not converted to an 'offense punishable in California by life imprisonment or death' (§ 667, subd. (e)(2)(C)(iv)(VIII)) by virtue of the fact that the particular offender has two prior serious or violent felony convictions." (Ibid.)
I believe we should provide guidance to the trial courts by endorsing this well-founded precedent and holding the catchall provision in the list of super strikes refers to offenses carrying life sentences on their own, not through application of a recidivist statute.
Despite assuming the above analysis is correct, the majority affirmed the trial court based on the premise Gurrola failed to meet his burden of proving the stolen property was valued below the statutory threshold of $950. I do not believe the record supports that holding. At an initial hearing, defense counsel represented in 1983 Gurrola received two stolen rolls of chain link fence and gates. Defense counsel said she looked at current retail prices at Home Depot and found the most expensive chain link fencing roll cost $219 and the most expensive gate cost $164. Thus, a high end estimate of the property's value (at least today) was $766. However, defense counsel acknowledged she did not know the size of the fencing roll. The court denied defendant's petition, saying he had failed to prove the stolen property was worth less than $950. The trial court denied the petition, but at defense counsel's request did so without prejudice to Gurrola filing a new petition with new evidence.
However, when the court later held a hearing on the new petition, the People opposed, saying he was ineligible for relief under Penal Code section 1170.18, subdivision (i) because he was serving a 25-year-to-life sentence for his burglary conviction. The court immediately took up that issue, determined Gurrola was not eligible on that basis, and denied the petition without taking any evidence. As I have discussed, this was error. It seems reasonably likely, from what the record does tell us, that had Gurrola been given the opportunity to put on evidence, he would have been able to show he was convicted of receiving stolen property worth less than $950. I therefore believe we should correct the trial court's erroneous statutory interpretation, and remand to give Gurrola the opportunity to make that case. This disposition is especially appropriate because, since Mr. Gurrola's prior petitions, the Supreme Court has made clear he is not limited to the record of conviction for proof of the reasonable fair market value of the stolen items. (People v. Romanowski (2017) 2 Cal.5th 903, 914-915.)
For these reasons, I would reverse the trial court's order denying Gurrola's petition and remand for further proceedings with directions that the trial court permit Gurrola to put on evidence related to the value of the products he was convicted of stealing.
Finally, I note the disposition of the majority opinion purports to affirm the "judgment," while also allowing Gurrola "to request a new hearing regarding the value of the stolen property." (Maj. opn. ante, p. 7.) Since the majority affirms the trial court order, there is no longer a way for Gurrola to request a new hearing. I suggest the disposition say the majority affirms the order denying the petition without prejudice to consideration of a petition providing evidence of his eligibility. (People v. Page (2017) 3 Cal.5th 1175, 1190.) Such a petition may, of course, include a declaration by Gurrola describing the property he stole as well as information regarding the property's value. (People v. Romanowski, supra, 2 Cal.5th at p. 915.)
SLOUGH
J.