Opinion
A162133
11-30-2021
THE PEOPLE, Plaintiff and Respondent, v. TYLER RICHARD JOHNSTON, Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. H56893
Banke, J.
Defendant Tyler Richard Johnston appeals from an order denying his petition for recall of sentence under Proposition 47. (Pen. Code, § 1170.18.)The trial court denied defendant's petition on the ground his underlying conviction-for grand theft of personal property worth more than $950 (§ 487, subd. (a))-is an ineligible conviction. Defendant's appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal of the order. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1975) 25 Cal.3d 436.) Defendant has been informed of his right to file supplemental briefing and has not done so. After our independent review of the record, we find no issues requiring further briefing, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated. Proposition 47, "the Safe Neighborhoods and Schools Act," was enacted by voter initiative on November 4, 2014, and went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
The record relevant to the instant appeal is that pertaining to defendant's Proposition 47 petition. The circumstances of defendant's underlying conviction are irrelevant save for the fact he pleaded no contest in December 2014 to one count of grand theft of personal property worth more than $950 (§ 487, subd. (a)). The personal property included "12 bottles of liquor . . . and multiple electronic items." Imposition of sentence was suspended, and the trial court placed defendant on five years' probation subject to several terms and conditions, including a four-month county jail sentence, with credit for time served.
Six years later, in April 2020, defendant filed a petition under Proposition 47 to reduce his grand theft conviction to a misdemeanor. The trial court denied the petition. The court determined defendant was ineligible for relief under Proposition 47 because defendant was convicted of grand theft, and "the total loss exceeded $950," and defendant's counsel had "no evidence that the loss was less than $950."
Proposition 47 reclassified certain drug and theft-related crimes as misdemeanors and created a mechanism by which a person convicted of such a crime when it was classified as a felony could petition the trial court to reduce the felony conviction to a misdemeanor. (§ 1170.18, subd. (f).) Grand theft of property having a value that exceeds $950 is ineligible for reduction to a misdemeanor. (§§ 490.2, subd. (a), 1170.18, subd. (a).) A defendant seeking resentencing under section 1170.18 bears the burden of establishing his eligibility for relief. (People v. Page (2017) 3 Cal.5th 1175, 1189.) Defendant has not met his burden.
We take judicial notice of defendant's writ of habeas corpus in case No. A162905. (Evid. Code, §§ 452, 459.) In his reply brief in that case, defendant's counsel, citing respondent's opposition brief, concedes that "Respondent does successfully argue that petitioner's grand theft conviction in Alameda County case No. H56893 does not qualify for reduction under Proposition 47."
After review of the relevant record, we conclude there are no arguable appellate issues requiring further briefing.
The order is AFFIRMED.
We concur: Humes, P.J., Sanchez, J.