Opinion
C085005
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. BENNIE EDWARD DICKINSON, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 99827)
Defendant Bennie Edward Dickinson appeals from the trial court's denial of his Penal Code section 1170.18 petition to redesignate his felony conviction for receiving stolen property. He contends the trial court erred in failing to take evidence regarding the value of the stolen property. Finding defendant was afforded the opportunity to present evidence of value but did not present any, we shall affirm.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
On August 29, 1988, defendant was stopped in a vehicle that was reported stolen. A stolen rifle was found in the trunk.
Defendant pleaded no contest to receiving stolen property (§ 496) and was committed to the California Youth Authority for two years.
On April 25, 2017, defendant filed a petition to redesignate his receiving conviction from a felony to a misdemeanor. No supporting evidence or declarations were attached to the petition.
At the hearing on the petition, the following exchange took place:
"[Prosecutor]: Your Honor, the People have reviewed the probation report in this case. It appears that this stolen property was a firearm—firearms. Possession of a firearm remains a felony post Prop[.] 47, and we'd ask that the reduction be denied.
"[Defense counsel]: Well, he's convicted of Penal Code Section 496. As long as the value is less than 950, it should be reduced. My client reports that the rifle that was stolen was actually a shotgun. And back in 1988 I can't imagine a shotgun costing more than $950.
"[Prosecutor]: I would point out that the defendant has the burden of proving the actual value of the stolen property in this case, and just the fact that [d]efense [c]ounsel can't imagine less than 950 is not sufficient.
"[Section] 496 has been amended to exclude firearms from Prop[.] 47 reductions based on value. The [L]egislature has decided that stolen firearms are the kind of stolen property that we do not allow defendants to think is a misdemeanor because of the serious nature of having those items and allowing those items to be circulated on the street.[]
The prosecutor's comment regarding section 496 was incorrect. While the petty theft statute has been amended to exclude thefts involving firearms (see § 490.2, subd. (c)), section 496 has not been amended, and all convictions for receiving stolen property are misdemeanors unless the value of the items in question exceeds $950. --------
"THE COURT: Okay. The Court is going to deny the motion because there is not evidence of the value of the gun that was taken. That is without prejudice for that information to be provided.
"[Defense Counsel]: And just so the record is clear, Your Honor, I did contact Mr. Denny Latimer's office, who was the attorney at the time of that case and represented Mr. Dickinson, and their file has been destroyed. My understanding from talking with probation is their file's been destroyed. Talking with the prosecution, their file has been destroyed. So I wanted to make that recitation on the record."
II. DISCUSSION
Following Proposition 47, absent certain exceptions not relevant here, receiving stolen property is a misdemeanor unless the value of the stolen property exceeds $950. (§ 496, subd. (a).) A defendant who has completed the sentence for felony receiving, may petition the trial court to designate the crime a misdemeanor if the offense would be a misdemeanor had Proposition 47 been in effect at the time it was committed. (§ 1170.18 (f).)
Defendant claims the trial court's order must be reversed and the matter remanded so he can present evidence of the stolen rifle's value. Admitting he has the burden of proving the value of the stolen property did not exceed $950 (see People v. Sweeney (2016) 4 Cal.App.5th 295, 302 (Sweeney)), defendant points out the form used for filing his petition contained no space for him to state supporting facts. While he does not ask to file a new petition, he asks for the court to hold an evidentiary hearing to allow him to present evidence of the firearm's value.
Since the evidence of the stolen firearm's value is not in the record and the files for the case have been destroyed, defendant argues that his task of proving value "must not be sisyphean." Analogizing his case to the substantial factor standard that is applied to product liability claims for asbestos-related cancers, he suggests that since potential evidence of the stolen firearm's value was destroyed through no fault of his own, his burden would be satisfied if his estimate of value was "more than negligible or theoretical." (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978 (Rutherford) ["[t]he substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical"].)
At the hearing, the prosecutor pointed out defendant presented no evidence of the firearm's value. Defense counsel presented no counter to this other than stating defendant said that the weapon was a shotgun and speculating that a shotgun could not be worth more than $950 when the crime took place in 1988. This is not evidence of value. "Simply alleging that the petitioner 'believes' the property was worth $950 or less is not enough, even if the petition is under penalty of perjury. ' "An affidavit based on 'information and belief' is hearsay and must be disregarded." [Citation.]' [Citation.] Rather, the petitioner must 'indicate . . . the factual basis of his claim regarding the value of the stolen property.' [Citation.]" (Sweeney, supra, 4 Cal.App.5th at p. 302.) Presented with the opportunity to present evidence in support of his claim, defendant failed to do so.
We are also not persuaded by defendant's analogy to asbestos litigation. The substantial factor test as stated in Rutherford addressed the issue of causation. (See Rutherford, supra, 16 Cal.4th at pp. 957-958 ["no insuperable barriers prevent an asbestos-related cancer plaintiff from demonstrating that exposure to the defendant's asbestos products was, in reasonable medical probability, a substantial factor in causing or contributing to his risk of developing cancer"].) Causation in the context of a products liability case is not analogous to a defendant's burden of proving eligibility for relief in a section 1170.18 proceeding. The issue in defendant's claim, value, is distinct from the causation issue in Rutherford, rendering that decision inapposite.
While defendant failed to provide evidence in support of his petition, he is free to file a successive petition with supporting evidence. In cases like this, appellate courts typically affirm without prejudice to filing a successive petition. (See, e.g., People v. Perkins (2016) 244 Cal.App.4th 129, 140 [affirming denial of petition without prejudice to filing a successive petition establishing evidence of eligibility].) This is unnecessary here, since the trial court denied the petition without prejudice to a successive petition backed by sufficient evidence.
III. DISPOSITION
The judgment (order) is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.