Opinion
E064697
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDY WILLIAM BOURBONNAIS, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1209900) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant and defendant Randy William Bourbonnais asks us to revisit the settled proposition that petitioners under Penal Code section 1170.18 have the burden of proving they are eligible to have felony convictions designated misdemeanors. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-140 (Perkins).) We decline appellant's invitation and affirm the trial court's orders.
I
FACTUAL BACKGROUND
Bourbonnais appeals the denial of his requests under section 1170.18, subdivisions (a) and (f) in separate cases to designate two prior felony convictions misdemeanors.
Unlabeled statutory citations refer to the Penal code.
A. The 1997 Conviction (case No. RIF72013)
On August 20, 1997, Bourbonnais pled guilty to one count of receiving stolen property (§ 496, subd. (a)) and the trial court imposed a midterm sentence of two years. The information identified the stolen property as a 1984 Honda Prelude.
Bourbonnais pled guilty to charges and admitted enhancement allegations not relevant to this appeal.
On April 23, 2015, Bourbonnais filed an application to reduce this conviction to a misdemeanor under section 1170.18, subdivision (f). His petition states he completed his sentence and the value of the property was below $950. The People objected he had not met his burden of proof, and the trial court appointed a public defender and set a hearing.
On November 6, 2015, the trial court held a hearing on Bourbonnais's application. The People pointed out Bourbonnais was charged with receiving a 12-year-old Honda Prelude, "which we didn't know anything about." The trial court concluded "[a] 12-year-old Honda Prelude would be over $950." Defense counsel did not object or offer contrary evidence, and the trial court denied the application.
Bourbonnais filed a timely notice of appeal.
B. The 2013 Conviction (case No. RIF1209900)
On April 22, 2014, Bourbonnais pled guilty to receiving stolen property (§ 496, subd. (a)) and the trial court imposed a midterm sentence of two years to run concurrent with a sentence imposed in another case. The information identified the stolen property as miscellaneous stolen items from the Riverside Unified School District.
Bourbonnais admitted enhancement allegations not relevant to this appeal. --------
On December 31, 2014, Bourbonnais filed a petition for resentencing under section 1170.18, subdivision (a). His petition states he was still serving his sentence and the value of the stolen property was below $950. The People requested a hearing to determine the value of the stolen items, and the trial court appointed a public defender and set a hearing.
On September 25, 2015, the trial court held a hearing on Bourbonnais's petition. At the hearing, defense counsel said the police report regarding the theft shows the stolen property came from the Riverside Unified School District and a church. The People said the list of items stolen in the police report shows the property stolen exceeded $2,500 in value. However, Bourbonnais was arrested a month after the theft and the items found in his possession at the time of his arrest were only a subset of the items stolen from the school and church. According to the People, "the recovered items were medical gloves, [a] backpack, [some] plastic tubs, and cleaning supplies." But they said "We don't know the specifics." The court asked whether "[anybody] gave a value on that at all?" The People responded, "Not on specific items recovered." Defense counsel did not disagree.
The trial court denied the petition on the basis Bourbonnais had not met his burden of establishing the value of the stolen property did not exceed $950. However, the court denied the petition without prejudice, so that "if he finds evidence of the value of those items and that they are under [$]950, he can restore it to calendar."
Instead of obtaining evidence concerning the stolen property and filing an amended petition, Bourbonnais appealed.
II
DISCUSSION
Bourbonnais contends both his convictions were eligible to be reduced from felonies to misdemeanors "because there was no evidence about the value of the stolen property" and the "burden of proof was on the prosecution to prove the value of the property was more than $950 once appellant filed a petition alleging the amount involved in the crime met the criteria for reduction to a misdemeanor."
As he must, Bourbonnais acknowledges this court and our sister California appellate courts have rejected his position. (E.g., Perkins, supra, 244 Cal.App.4th at p. 136; People v. Sherow (2015) 239 Cal.App.4th 875, 878; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450.) He asks that we reconsider the issue. We decline to do so.
As we held in Perkins, "[t]he statute itself is silent as to who has the burden of establishing whether a petitioner is eligible for resentencing. However, Evidence Code section 500 provides, '[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.' Because defendant is the petitioner seeking relief, and because Proposition 47 does not provide otherwise," Bourbonnais carries the burden of establishing eligibility for such resentencing. (Perkins, supra, 244 Cal.App.4th at p. 136.)
Under this precedent, Bourbonnais's concession there was no evidence about the value of the stolen property in either of his cases is fatal to his appeal. He cannot prevail absent evidence or agreement of the parties the value of the stolen property did not exceed $950. (Perkins, supra, 244 Cal.App.4th at p. 136; People v. Mutter (2016) 1 Cal.App.5th 429, 436.) We follow the decisions of our own district and other districts absent good reason to depart from them. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.) In this case, appellant has provided no persuasive reason to depart from the holding in Perkins and numerous other cases from courts around the state.
We note Bourbonnais had every opportunity to go outside the record of conviction to provide value evidence, but did not do so. The People requested hearings to establish the value element in both cases. In both, the court granted those requests, set hearings, and appointed counsel to represent Bourbonnais. As Bourbonnais concedes, he failed to present any evidence of the value of the stolen property at the hearings. The trial court denied the petition in the 1997 case on the ground a 1984 Honda Prelude was worth more than $950 at the time of the offense. Though this conclusion was not supported by substantial evidence, we affirm on the alternative basis the appellate record shows Bourbonnais did not meet his burden of showing the stolen vehicle was worth $950 or less. (Perkins, supra, 244 Cal.App.4th at p. 139.)
The trial court denied the petition in the 2013 case on the ground he had not provided evidence to show the value of the stolen property. The record supports that determination. The People discussed a police report concerning items stolen from the school district and the church. But law enforcement arrested Bourbonnais a month after the theft and found him in possession of only a subset of the stolen property. Neither party identified the stolen items Bourbonnais had in his possession, nor offered evidence concerning the value of that property. Even then, the trial court appropriately denied the petition with leave to amend in the event Bourbonnais came up with evidence. (See People v. Huerta (2016) 3 Cal.App.5th 539, 543.) Rather than attempt to identify and value the property and amend his petition, Bourbonnais instead appealed, asking us to determine the failure of proof cuts against the People. We decline the invitation.
We conclude Bourbonnais has provided no persuasive reason to revisit our conclusion petitioners under Proposition 47 carry the burden of showing they are entitled to relief and therefore affirm the trial court orders.
III
DISPOSITION
We affirm the orders.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: HOLLENHORST
Acting P. J. MILLER
J.