Opinion
C088299
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. DEANDRAYE DUCKETT, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 11F03391)
Defendant appeals from the trial court's denial of his Penal Code section 1170.18, subdivision (f) petition to have his conviction for receiving stolen property (§ 496) redesignated as a misdemeanor. He contends the trial court erred as a matter of law in utilizing information concerning pending charges to disqualify him from relief. The People concur. We agree that reversal is required and will remand the matter for further proceedings.
Further undesignated statutory references are to the Penal Code.
FACTS AND PROCEEDINGS
The People charged defendant with unlawful possession of a concealable firearm (§ 12025, subd. (b); count one) and receiving stolen property (§ 496, subd. (a); counts two and three). Thereafter, on August 17, 2011, defendant pleaded no contest to count three and the remaining counts were dismissed with a Harvey waiver. The factual basis for the plea was that defendant had been found in possession of a recently stolen gun and gun holster, both taken in the same robbery. The court sentenced defendant the same day to five-years probation with 180 days in county jail and awarded him three days custody credit.
People v. Harvey (1979) 25 Cal.3d 754, 758-759. --------
On October 12, 2018, defendant petitioned to redesignate his section 496 conviction to a misdemeanor pursuant to section 1170.18, subds. (f)-(g), attaching a declaration attesting that defendant's conviction was for receiving a stolen Ruger GP-100 .357 Magnum revolver. Defendant also submitted the declaration of a retired United States Army officer, who opined that the gun in question had a value of between $400 and $600. The People filed no formal opposition, but argued that even if the court found defendant had established the requisite value, his request should still be denied because the court could properly consider serious charges then pending against defendant in exercising its discretion to consider "whether or not this new sentence would result in [an] unreasonable risk of safety -- sorry -- danger to public safety. . . ." Relying on the People's representation that the court could consider the pending cases, the court denied the motion. Defendant timely appealed.
DISCUSSION
Proposition 47 reduced numerous felonies to misdemeanors, including receiving stolen property. (§ 1170.18, subd. (a).) Following Proposition 47, absent certain exceptions not relevant here, the crime of receiving stolen property is a misdemeanor if the value of the stolen property received does not exceed $950. (§ 496, subd. (a).) A defendant is eligible for relief if he or she would have been guilty of a misdemeanor if Proposition 47 was in effect at the time of the crime. (§ 1170.18, subd. (a).) If the defendant is currently serving a term for the eligible crime, he or she is entitled to resentencing unless the trial court determines that resentencing the defendant poses "an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b); People v. Buycks (2018) 5 Cal.5th 857, 877.) A defendant who has completed the term for the crime is entitled to have the qualifying offense redesignated as a misdemeanor. (§ 1170.18, subd. (f).) "For those who have completed their sentences for a qualifying felony, the resentencing court, upon receiving an application from a person with a qualifying felony conviction, 'shall designate the felony offense or offenses as a misdemeanor.' ([§ 1170.18], subd. (g).)" (Buycks, at p. 877, italics added.) Defendant bears the burden of establishing eligibility for resentencing. (People v. Page (2017) 3 Cal.5th 1175, 1188.)
Here, the parties agree that the trial court erred in relying upon information relevant only if defendant were still serving his sentence, which they agree was not the case given the timing of defendant's sentence and probation term. We concur, but question the appropriate remedy for this error. Defendant has failed to identify what should be done following reversal of the court's order. The People argue remand is required for further proceedings so that they may present evidence challenging defendant's showing or acquiesce to the statute's applicability.
We believe the best course is to remand the matter for further proceedings as requested by the People. This will allow the trial court to make express findings concerning defendant's eligibility for redesignation of his sentence under section 1170.18, including the value of the stolen gun, confirm that defendant had completed his section 496 sentence, and that defendant does not have any disqualifying convictions. (See People v. Romanowski (2017) 2 Cal.5th 903, 906-907, 917 [affirming the judgment of the Court of Appeal that remanded for a determination of the value of the stolen access card account information where trial court had found defendant ineligible on different grounds].)
DISPOSITION
The trial court's order denying defendant's section 1170.18 petition is reversed, and the matter remanded for further proceedings consistent with this opinion.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
RENNER, J.