Opinion
C081881
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN RAYMOND FRITZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 04F2068, 04F5525)
Defendant John Raymond Fritz appeals from the trial court's denial of his Penal Code section 1170.18 petitions to reclassify certain prior felony convictions as misdemeanors. He contends the trial court's orders should be reversed as to his convictions for receiving stolen property and grand theft. We shall reverse the order as to the receiving stolen property conviction and affirm without prejudice to defendant filing a successive petition as to the grand theft conviction.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
In March 2004, in case No. 04F2068, defendant was found in possession of various items taken in an earlier automobile burglary. He pleaded guilty to two counts of burglary of an automobile (§ 459) and one count of felony receiving stolen property (§ 496, subd. (a)). The trial court placed defendant on three years' formal probation.
On July 28, 2004, in case No. 04F5525 , defendant was in a pickup truck that was subjected to a traffic stop. Numerous items taken in a theft from a boat were found in the back of the truck. Defendant pleaded guilty to grand theft (§ 487, subd. (a)) and admitted violating probation in case No. 04F2068. Defendant was reinstated to three years' formal probation.
After subsequent revocations of probation, defendant's reinstatement of probation was denied on February 16, 2005, and he was sentenced to a two-year state prison term.
In November 2015, defendant, with the assistance of appointed counsel, filed a reclassification petition under section 1170.18 in both cases. Neither petition contained any supporting evidence or specific allegations regarding the value of the items underlying any of the convictions.
The People filed a response agreeing that defendant was entitled to relief on the receiving stolen property conviction in case No. 04F2068, while asserting the petitions should be denied as to the remaining convictions in case No. 04F2068 and the grand theft conviction in case no. 04F5525.
The trial court denied both petitions as to all counts.
II. DISCUSSION
The passage of Proposition 47 created section 1170.18, which provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, p. 74.)
Proposition 47 amended section 496, which now states in pertinent part: "[I]f the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 496, subd. (a).)
Proposition 47 also enacted section 490.2, which states in pertinent part: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 490.2, subd. (a).)
Other than stating that the defendant seeking relief is the petitioner, Proposition 47 is silent as to the burden of proof. "Except 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." (Evid. Code, § 500.) Defendant, as the petitioner in resentencing proceedings, therefore had the burden of proving that the value of the stolen items did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)
Defendant notes the trial court did not make clear its reason for denying his petitions as to the receiving stolen property and grand theft counts. He claims the trial court's ruling as to these counts should be either reversed and remanded for new proceedings on them, or in the alternative, affirmed without prejudice to filing a successive petition offering evidence of eligibility as to those convictions. The Attorney General admits the trial court erred in denying the petition as to the receiving stolen property count and claims the court correctly denied the petition as to the grand theft count because defendant failed to carry his burden of proving eligibility for relief as to that conviction. We agree with the Attorney General on these points.
The Attorney General also argues that the denial as to the auto burglary counts was correct. Since defendant does not contest this part of the trial court's ruling, we do not address the Attorney General's arguments.
Defendant submitted no evidence of value in support of his petition as to either offense, which would normally justify denying the petitions. However, the People's response to the petitions below admitted that defendant was eligible for relief. We treat this as a stipulation regarding eligibility that satisfies the burden of proof. (See, e.g., People v. Newman (1999) 21 Cal.4th 413, 418, disapproved on other grounds in People v. Cross (2015) 61 Cal.4th 164, 179 [stipulation as to an element of an offense removes the burden of proving that element].) Unlike a petition for resentencing under section 1170.18, subdivision (a), a trial court may not reject a petition for reclassification under subdivision (f) upon finding that defendant poses too great a danger to society. (See § 1170.18, subd. (b).) Since the parties stipulated to defendant's eligibility for reclassification on the receiving stolen property offense, he was entitled to the requested relief.
The form used for both petitions contained a box, checked by defendant, alleging that value of the items in question was less than $950. Defendant does not contend that this bare allegation constitutes evidence of eligibility. --------
Since there was no stipulation as to the grand theft conviction, defendant failed to carry his burden of proof as to that crime, and the trial court's denial of his petition as to this offense was correct. In People v. Perkins (2016) 244 Cal.App.4th 129, the court of appeal affirmed the denial of a section 1170.18 petition without prejudice to a successive petition that provided evidence of the defendant's eligibility for relief. (Id. at p. 140.) In Perkins, the defendant prepared and filed the petition without the assistance or benefit of counsel, utilizing a form that did not inform the defendant of his burden of proving eligibility or provide space for supporting evidence or allegations. (Id. at pp. 139-140, & fn.4.) By contrast, in this case defendant had representation when the forms for his petitions were filled out. The petitions were submitted on November 18, 2015, months after the opinion in Sherow was filed on August 11, 2015. (See Sherow, supra, 239 Cal.App.4th at p. 875.)
Even though Perkins can be distinguished factually, we will follow the same procedural practice in this case. Section 1170.18 contains no provision limiting or forbidding successive petitions. Since Proposition 47 is intended to be "liberally construed to effectuate its purposes," (see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74; People v. Tidwell (2016) 246 Cal.App.4th 212, 219), defendant is not barred from filing a successive petition containing proof of eligibility for relief regarding the grand theft conviction.
III. DISPOSITION
The trial court's denial of the section 1170.18 petition for reclassification regarding the receiving stolen property conviction (§ 496, subd. (a)) in case No. 04F2068 is reversed and the trial court is directed to enter an order reclassifying that conviction as a misdemeanor. The trial court's denial of defendant's petition regarding the grand theft conviction (§ 487, subd. (a)) in case No. 04F5525 is affirmed without prejudice to defendant filing a successive petition that supplies evidence of his eligibility for relief. In all other respects, the trial court's orders are affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
DUARTE, J.