Opinion
H044757
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPHINE ROSEMARY FRIAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. CC787022)
Defendant Josephine Rosemary Frias appeals from an order denying her petition to redesignate her felony conviction of receiving stolen property as a misdemeanor pursuant to Penal Code section 1170.18 . Defendant argues that she made a sufficient showing to warrant an evidentiary hearing on the issue. We agree with defendant that the evidence presented to the court was sufficient to warrant an evidentiary hearing on the question of the value of the victim's property. Accordingly, we will reverse the order.
All further statutory references are to the Penal Code unless otherwise indicated.
Background
On December 11, 2007, defendant pleaded no contest to receiving stolen property, including a laptop computer that had been stolen from the victim's car (§ 496, subd. (a)), and giving a false name to a peace officer (§ 148.9, a misdemeanor). In exchange for her plea, two other counts of the information (possession of controlled substance paraphernalia and possession of burglar tools) were dismissed. In January 2008 defendant was sentenced to 60 days in jail. After she violated probation in July 2008, the court imposed a seven-month jail term.
Count 1, to which defendant pleaded no contest, stated that she and a co-defendant "did buy and receive property, identification card, computer," which they knew had been stolen.
On April 7, 2017, defendant filed a petition under section 1170.18, subdivision (f), to redesignate her felony conviction as a misdemeanor, in accordance with Proposition 47. Attached to the petition was a defense investigator's report of an interview with "Jeanne Pamela Kato" on March 28, 2017. According to the report, "Pamela described her laptop as a 'portable' type. The laptop was a Latitude model, which was made by Dell Computers. It was silver in color, supposed to be no bigger than a 12[-]inch notebook. She mentioned it was the 'top of the line' type of laptop back in 2007. The laptop was using a Windows 7 operating system. Pamela gave me an estimate of $700.00 to $1,000.00 in its price if it was [sic] purchased, used, on the date of the incident."
The district attorney opposed the petition, claiming insufficient evidence that the value was under $950. "Also, victim gave price if used." The superior court denied the petition on the ground that defendant had not met her burden to "establish the value" of the stolen property. From that order on May 18, 2017, defendant brought this timely appeal.
Discussion
Under Proposition 47, passed by the voters in November 2014, receiving stolen property was reclassified as a misdemeanor if the value of the property stolen did not exceed $950. (§ 496, subd. (a).) The initiative also created a resentencing procedure allowing an offender to petition to have his or her felony conviction designated as a misdemeanor if that felony would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subd. (f).)
"The trial court's decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutory criteria for relief," including whether the value of the property involved is less than $950. (People v. Contreras (2015) 237 Cal.App.4th 868, 892.) It is the defendant's burden to establish the facts on which the asserted eligibility is based. (People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski); People v. Sherow (2015) 239 Cal.App.4th 875, 880.) The defendant also bears the burden of affirmatively demonstrating error on appeal. (People v. Cardenas (2015) 239 Cal.App.4th 220, 227.)
Value is measured by the " 'reasonable and fair market value' " of the property, or how much it would sell for given a willing buyer and a willing seller. (Romanowski, supra, 2 Cal.5th at p. 915; see also People v. Pena (1977) 68 Cal.App.3d 100, 104 ["When you have a willing buyer and a willing seller, neither of whom is forced to act, the price they agree upon is the highest price obtainable for the article in the open market"].)
In this case, defendant did offer evidence in the form of the investigator's report, which represented the victim's estimate of her laptop's value at between $750 and $1,000. In summarily rejecting the petition the trial court stated that defendant had "not set forth a prima facie case of eligibility for the requested relief because he [sic] has not alleged any facts to establish the value of the item(s) in question."
No evidence was submitted on the value of the identification card, which may have had an "illegal market value." (Romanowski, supra, at p. 916.)
Although the estimate provided by the victim to the investigator was insufficient to establish that the stolen laptop was worth less than $950, it suggested a range of values that could be refined upon a further hearing. "An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact." (Cal. Rules of Court, rule 4.551(f); see Romanowski, supra, 2 Cal.5th at p. 916.) In People v. Washington (2018) 23 Cal.App.5th 948, 953-954 (Washington), the Second Appellate District, Division Eight, suggested an even more liberal standard: Either checking a box on a local court's form or a petitioner's express statement that the value of the stolen property did not exceed $950 is sufficient to meet his or her prima facie burden. Then, "[i]f the prosecution chooses to oppose a Proposition 47 petition on the ground the value of the stolen property exceeds $950, and this fact is not established by the record of the initial plea or conviction, the superior court should then hold an evidentiary hearing at which the value of the property taken may be considered." (Id. at p. 957.)
Although a hearing is not required unless requested (§ 1170.18, subd. (h)), defendant did request a hearing if her petition was opposed.
On this point the Washington court disagreed with the Fourth District, Division Two, which had held that a defendant should "provide some evidence of eligibility" at the time he or she files the section 1170.18 petition. (People v. Perkins (2016) 244 Cal.App.4th 129, 137.) The defendant in that case failed to meet his burden because he submitted a form that asserted the value of the stolen property as less than $950, but without attaching any additional information or evidence to the form. --------
In adopting Proposition 47 the voters expressly intended that section 1170.18 be "liberally construed to effectuate its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014), text of Prop. 47, § 18, p. 74.) Accordingly, we agree with the Washington court that "[i]t is unrealistic to expect Proposition 47 petitioners, who are often self-represented either from prison or upon release, to marshal evidence at the initial stage to establish that the stolen property at issue in their convictions did not exceed $950 at the time it was stolen." (Washington, supra, 23 Cal.App.5th at p. 957.) In this light, defendant's petition, together with the declaration of her counsel and accompanying investigator's report, was sufficient to trigger an evidentiary hearing on the petition. The prosecution may rebut defendant's showing with its own evidence; indeed, it is "much more equipped to do so." (Ibid.)
Disposition
The order denying defendant's section 1170.18 petition is reversed. Upon remand, the trial court shall hold an evidentiary hearing on defendant's eligibility for reclassification of her December 2007 section 496 conviction.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.