Opinion
C087194
10-21-2019
THE PEOPLE, Plaintiff and Respondent, v. ALONZO JOSEPH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 96F01301)
This case is defendant Alonzo Joseph's third appeal involving the denial of a Proposition 47 petition for relief regarding his 1996 conviction for receiving stolen property. (Pen. Code, §§ 1170.18, 496; undesignated statutory references are to this code.) He contends, and the Attorney General concedes, that the court erred in denying the petition based on a failure to provide evidence of the received items value. Agreeing with the parties, we reverse and remand for additional proceedings on the petition.
BACKGROUND
We take the relevant facts and procedures before the petition in this appeal from our opinion affirming the denial of defendant's second section 1170.18 petition.
"On February 11, 1996, just after midnight, defendant knocked on [J.L.'s] front door and asked to use the telephone. Defendant made a call and left after a few minutes. He was dressed in blue Nike Cortez shoes.
"A short time after defendant left [J.L.'s] home, she received a telephone call from a man who told her that a friend of hers had been shot and was at a hospital. She began driving to the hospital but decided to call on her cellular phone while en route to obtain more information. The hospital told her that no one using her friend's name had been admitted nor had a gunshot victim been admitted that evening.
"When [J.L.] returned home, her front door had been broken in and bore a footprint on the front distinguished by the Nike logo. She discovered property was missing, including 13 one-dollar bills, a two-dollar bill, jewelry, and a Mitch Richmond Sacramento Kings jersey.
"Sacramento County Deputy Sheriffs Lee Parkhurst and Anthony Costanzo arrived at [J.L.'s] home to investigate. They saw the footprint on the front door next to the door handle. After Little identified defendant as her midnight visitor, they drove to defendant's home.
"Defendant invited the officers into his bedroom. He admitted he had been at [J.L.'s] home that evening. The officers saw a shoe lying on its side that appeared to be the same size with the same tread mark as the footprint found on [J.L.'s] door. They also saw a Kings jersey in plain view on a shelf in defendant's closet. After taking defendant into custody, a search produced some cash and a necklace. [J.L.] later identified the Kings jersey and necklace as hers.
"Following a jury trial, defendant was convicted of residential burglary . . . and receiving stolen property . . . . The trial court sustained three strike and serious felony allegations and sentenced defendant to 35 years to life in state prison. We affirmed the judgment on appeal.
"On December 9, 2014, and again on January 28, 2015, defendant filed section 1170.18 petitions seeking resentencing on the receiving conviction. The trial court summarily denied the petitions. On appeal, we affirmed the denial without prejudice to defendant filing a successive section 1170.18 petition with the trial court.
"On March 6, 2017, defendant filed another section 1170.18 petition seeking resentencing on the receiving count. The petition contained no supporting evidence or allegations. The trial court denied the petition, finding there was no showing of the stolen items' value." (People v. Joseph (Jan. 25, 2018, C085058) [nonpub. opn.] at pp. 1-3 (Joseph).)
Defendant appealed the trial court's ruling. His appointed counsel filed a brief asking us to review the record for arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436. (Joseph, supra, C085058 at p. 3.) Defendant filed a supplemental brief asserting "he provided the public defender['s office] with evidence to support his petition, eBay listings for a signed Mitch Richmond Sacramento Kings jersey at $159.99, and an 18-inch gold Herringbone necklace at $200." (Ibid.) Attached to his brief were exhibits supporting his contention. (Ibid.) We affirmed the conviction, finding the supporting evidence had not been presented to the trial court with defendant's second petition. (Id. at pp. 3-4.) Our affirmance was without prejudice to defendant filing a successive petition that supplied evidence of his eligibility for relief. (Id. at p. 4.)
Defendant filed his third section 1170.18 petition on March 13, 2018. Attached to the petition were the exhibits he presented to this court in the appeal of the denial of his second petition. The trial court summarily denied the petition on March 16, 2018, stating: "The Court DENIES the Petition due to: insufficient showing of value less than $950. The new petition does not address additional items: jersey, jackets, clothing."
DISCUSSION
Defendant contends the trial court erred in denying his petition. The Attorney General agrees, as do we.
Section 1170.18, subdivision (a) provides: "A person [currently] serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ." Section 1170.18 was enacted as part of Proposition 47, which reduced many crimes from felony to misdemeanor. As relevant to this case, Proposition 47 amended section 496, which states in pertinent part: "if the value of the property does not exceed [$950], the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 496, subd. (a).)
As the petitioner, the defendant has the burden of proving his or her eligibility for relief in a Proposition 47 proceeding. (People v. Page (2017) 3 Cal.5th 1175, 1188.) "In a successful petition, the offender 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. [Citation.] The defendant must attach information or evidence necessary to enable the court to determine eligibility. [Citation.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)
As our prior opinion establishes, the items stolen from the victim were $15 in cash, jewelry, a necklace, and a Sacramento Kings Jersey. Defendant was found in possession of cash, and a jersey and necklace which the victim identified as hers. Defendant's petition alleged the items found on him was not worth more than $950 and supported that with documents establishing $159.99 value for a signed King's jersey and a $200 value for a gold Herringbone necklace.
Defendant carried his burden of establishing a prima facie case for eligibility. The trial court's summary denial was wrong. Defendant is entitled to a hearing on his petition.
DISPOSITION
The order denying defendant's section 1170.18 petition is reversed and the matter is remanded for additional proceedings on the petition.
/s/_________
HULL, Acting P. J. We concur: /s/_________
ROBIE, J. /s/_________
MURRAY, J.