Opinion
E067934
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CHARLES ATKINS, JR., Defendant and Appellant.
Jeffrey S. Kross, 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, Steve Oetting and Paige B. Hazard, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1207409) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Reversed with directions. Jeffrey S. Kross, 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, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Raymond Charles Atkins, Jr., appeals from the superior court's ruling denying without prejudice his Proposition 47 petition. Defendant relies on People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), which held, after the trial court ruled on his petition, that courts may consider evidence of stolen items' value in an illicit market when determining whether the theft involved an item with a value of $950 or less. The police report includes a statement by defendant to a police officer that he paid $50 for all of the stolen items he possessed.
FACTS AND PROCEDURE
The facts are taken from the augmented record filed in this case on May 25, 2017. The augmented record consists of two pages from the police report. In his opening brief, defendant asks this court to take judicial notice of the entire 105-page report, or in the alternative, page 19 of the report that contains a photocopy of the $1,400 check from count 5. We hereby take judicial notice of page 19 of the police report.
On October 11, 2011, Riverside police received a tip that defendant was inside a fast food restaurant and that he had an outstanding felony warrant. An officer contacted defendant and asked for identification. Defendant stated it was inside a small camera bag he was carrying, and consented to having the officer look inside the bag. In addition to defendant's own identification, the bag contained several identification cards, drivers' licenses, and debit cards with different names. Defendant eventually told the officer he purchased the bag for $50 from a gang member, who obtained the items by breaking into cars. Defendant said he planned to sell the items to an unknown female, who would use the items to obtain identities and in turn sell the identities to people for unknown amounts.
On October 1, 2012, the People filed a felony complaint charging defendant with five counts of receiving stolen property (Pen. Code § 496, subd. (a)) and alleging he had two prison prior convictions (§ 667.5, subd. (b)). In counts 1 through 4, the property received included credit card, driver's license, and IRS information. In count 5, the property received was a personal check.
Further statutory references are to the Penal Code unless otherwise indicated.
Defendant represents in footnote 2 of his opening brief that the check is drawn on the account of Gary Headlund/Gary Headlund Tax Service in the amount of $1,400, payable to Bank Vehicles Locators and Recovery.
On November 30, 2012, defendant pled guilty to the five counts of receiving stolen property and admitted the two prior prison term convictions. (§ 667.5, subd. (b).) The court sentenced defendant to two years in county jail and two years of supervised release. On June 10, 2013, defendant admitted to a violation of mandatory supervision. The court revoked and terminated his mandatory supervision and sentenced him to 648 days in jail.
On November 4, 2014, voters enacted Proposition 47, which 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 . . . [¶] . . . 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.' " (Id. at pp. 1092-1093.)
Proposition 47 amended section 496 (buying or receiving stolen property) to provide that if the value of the property at issue is $950 or less, the offense is a misdemeanor. (§ 496, subd. (a).) The former version of section 496 gave the prosecution discretion to charge the offense as a misdemeanor if the value of the property did not exceed $950 and the district attorney or grand jury determined that charging the crime as a misdemeanor would be in the interests of justice. (Former § 496, added by Stats. 2011, ch. 15, § 372, eff. April 4, 2011, operative Oct. 1, 2011.) In effect, Proposition 47 changed the section 496 offense of receiving stolen property not exceeding $950, from a wobbler to a misdemeanor.
On September 8, 2016, defendant filed a Proposition 47 petition to have his convictions redesignated misdemeanors. On the RI-CR039 form, he checked the box indicating, "Defendant believes the value of the check or property does not exceed $950." The People filed a response contending defendant is not entitled to resentencing because: (1) defendant needed to establish the value of the items in counts 1 through 4; and (2) the check in count 5 was written out for $1,400, and so was over the $950 limit.
The hearing on the petition was held on March 3, 2017. Defendant was not present, but was represented by the Riverside County Public Defender's Office. The People argued defendant had failed to meet his burden to prove any of the counts involved less than $950, including the personal check in count 5 that was written out for $1,400. Defense counsel submitted after arguing, "I believe the value should be a nominal amount and not the amount written on it." The court denied the motion without prejudice because, "I don't believe he met his burden." The court noted: "It is a little interesting, he purchased stolen property for $50, and I don't know if that—I couldn't quite tell if the check was part of that or a separate transaction, so there were police reports attached, but at this point I will deny it without prejudice."
Defendant appealed on March 14, 2017.
On March 27, 2017, the California Supreme Court issued its opinion in Romanowski, in which it clarified that courts may consider the value of stolen items in an illicit market when determining whether the $950 threshold has been met.
DISCUSSION
Defendant asks that this case be remanded to the trial court for a hearing to determine the reasonable and fair market value of the stolen property he received, using the evidence of its value in an illicit market as included in the police report. The People counter that we must affirm the court's order because the court's denial of defendant's Proposition 47 petition was consistent with the holdings of Romanowski, in that defendant did not meet his burden to provide evidence of the stolen property's value.
The California Supreme Court in Romanowski held that when the stolen property, such as an access card, "is not sold legally, evidence related to the possibility of illegal sales can help establish 'reasonable and fair market value.' Only in cases where stolen property would command no value on any market (legal or illegal) can courts presume that the value of stolen access information is de minimis." (Id. at p. 915.) However, the court was also very clear that "[t]he ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (Id. at p. 916)
We review the trial court's legal conclusions de novo and its findings of fact for substantial evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136.)
Here, defendant did not make an evidentiary showing in his petition as to the value of the stolen items he received. However, the police report(s) that the court reviewed in making its determination does contain defendant's statement to police that he obtained the items for a payment of $50. This is some evidence of the items' value in an illicit market. In fact, the court appears to take this statement at face value ("he purchased stolen property for $50"), but does not appear to consider it in determining the value of the items. The court made its ruling before Romanowski made it clear that this evidence can be relevant to the court's determination of value. For this reason, we reverse as to all counts with directions that the court consider as relevant evidence defendant's statements in the police report that he paid $50 for all of the items.
The weight and credibility of this evidence is, of course, for the superior court to determine. --------
As a separate ground for reversal on counts 1 through 4, it appears that the trial court may have improperly aggregated the purported value of the $1,400 check with the value of the items in counts 1 through 4 ("I couldn't quite tell if the check was part of that or a separate transaction."). (See People v. Salmorin (2016) 1 Cal.App.5th 738, 745-748.)
DISPOSITION
The court's ruling denying defendant's petition without prejudice is reversed. The superior court is directed to consider the value of the stolen items in an illicit market, including the weight and credibility of defendant's statements contained in the police report.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.