Opinion
C081258
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO JOSEPH GARCIA, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F11)
Defendant Armando Joseph Garcia appeals from the trial court's denial of his Proposition 47 petition (Pen. Code, § 1170.18) for resentencing on his conviction for receiving stolen property. He contends that the trial court erred in requiring him to prove that the value of the stolen items received did not exceed $950. Defendant additionally contends that the prosecution should not be allowed to withdraw from the plea agreement if he prevails on his petition. We affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Acting as a lookout in a residential burglary, defendant received a camera, cell phone, rifle, television, and jewelry taken during the burglary. He pled guilty to receiving stolen property and admitted prior strikes with a stipulated sentence of 25 years to life. (People v. Garcia (2014) 230 Cal.App.4th 763, 766.)
Defendant subsequently filed a petition for resentencing pursuant to Proposition 36 (§ 1170.126), which the trial court denied. (People v. Garcia, supra, 230 Cal.App.4th at p. 765.) We affirmed the trial court's order on appeal. (Id. at p. 770.)
Defendant then filed this Proposition 47 petition for resentencing. The petition alleged that the stolen property was worth less than $950 but contained no factual allegations or evidence supporting the contention. The People filed a motion to vacate the hearing on the petition. Attached to the motion was a police report listing values for the items stolen in the burglary, which together totaled $1,350.
Defendant filed a bench brief asserting that the police report was insufficient to establish value and requested a hearing on the matter. The trial court found that defendant had established a prima facie case and set a hearing on his petition at which he would have the burden of establishing that the value of the stolen property was less than $950. Before the hearing, the People filed a brief asserting a right to withdraw from the plea agreement if the petition was granted. Citing our interpretation of section 1170.126 in People v. Bradford (2014) 227 Cal.App.4th 1322, the People additionally argued that defendant was limited to the record of conviction to establish the value of the stolen property.
Defendant was present at the hearing on his petition. The trial court reiterated that defendant had the burden of proving the stolen property's value. Defense counsel replied, "With respect to the value and the People's objection being based on items that the count he pled to, as articulated in the police report, I had an investigator in my office conduct sweeps, so to speak, about the area, talking to pawn shops, trying to find if there would be a witness we could call to assess the value of the rifle, the television set, the camera, the ring. His efforts were, I wouldn't say in vain, however, we were unable to track down a witness [who] was willing to testify that the values were as they were articulated in the police report were either accurate or inaccurate. They just couldn't say one way or the other."
Counsel also noted his difficulties in presenting evidence outside the police record in hearings before other trial courts in light of the Bradford decision. He also told the court that, in light of a recent Court of Appeal decision, defendant could face prosecution again if he testified as to the value of the property, the petition was granted, and the People were allowed to withdraw the plea agreement.
The trial court agreed with the People that Bradford "does seem to be on point." Defendant was therefore limited to the record of conviction, like the probation and sentence reports. The prosecutor and defense counsel agreed that the record of conviction was silent regarding the value of the items. The court noted that defendant admitted to "various things that could have easily placed him in the first-degree residential burglary arena." It also found that the property he received "typically are items that have some value."
The court found that just looking at the stolen items and the year in which they were taken, 2007, "one would believe it to be over 950 bucks, and so that's a logical way to look at that count, ergo, to the extent Mr. Garcia must prove otherwise, you know, he's fighting a losing battle, even on the blank charge itself. So for all those reasons, I'm going to deny the petition to reduce his offense to the grade of a misdemeanor."
DISCUSSION
I
Proposition 47 And Burden Of Proof
Section 1170.18, subdivision (a) provides as follows: "A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ."
Section 1170.18 was enacted as part of Proposition 47, which reduced many crimes from felony to misdemeanor. As pertinent to this case, Proposition 47 amended section 496, subdivision (a) which states in pertinent part as follows: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if 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."
Defendant contends the trial court erred in placing the burden of proving the stolen property's value on him. He claims it is unfair to place the burden of proof on him without permitting him to rely on evidence outside the record.
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 has 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; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)
II
Defendant Is Not Limited To The Record Of Conviction
Although the trial court correctly placed the burden of proof on defendant, it erred in finding he was limited to the record of conviction to make his case. The trial court relied on Bradford, in which a panel of this court held that determining a defendant's eligibility for resentencing under Proposition 36 (§ 1170.126) was limited to the record of conviction. (People v. Bradford, supra, 227 Cal.App.4th at pp. 1339-1340.) Although the resentencing proceedings in sections 1170.18 and 1170.126 are analogous (see People v. Esparza (2015) 242 Cal.App.4th 726, 737; see also People v. Scarbrough (2015) 240 Cal.App.4th 916, 924) this is one instance where they differ critically. "[E]ligibility for resentencing under [section 1170.126] turns on the nature of the petitioner's convictions -- whether an offender is serving a sentence on a conviction for nonserious, nonviolent offenses and whether he or she has prior disqualifying convictions for certain other defined offenses. (§ 1170.126, subd. (e).) By contrast, under Proposition 47, eligibility often turns on the simple factual question of the value of the stolen property. In most such cases, the value of the property was not important at the time of conviction, so the record may not contain sufficient evidence to determine its value. For that reason, and because petitioner bears the burden on the issue (Evid. Code, § 500), we do not believe the Bradford court's reasons for limiting evidence to the record of conviction are applicable in Proposition 47 cases. That does not mean there will be a mini-trial on the value of stolen property in every case, only that offenders may submit extra-record evidence probative of the value when they file their petitions for resentencing. [Citation.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 140, fn. 5; see also People v. Sherow, supra, 239 Cal.App.4th at p. 880 ["A proper petition could certainly contain at least Sherow's testimony about the nature of the items taken"].) We agree and conclude that a defendant is not limited to evidence in the record of conviction to carry his burden of proving his eligibility for resentencing under Proposition 47.
Here, however, defense counsel told the court he was unable to find any evidence of the items' value and did not present an offer of proof of evidence of their value. The court's error is therefore harmless. (See People v. Banks (2015) 59 Cal.4th 1113, 1183, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3 [erroneous exclusion of evidence harmless where defendant failed to make offer of proof that would establish prejudice].) If defendant subsequently finds evidence establishing his eligibility, he may file a successive petition with the trial court. (See People v. Perkins, supra, 244 Cal.App.4th at p. 142 ["We affirm the order denying defendant's petition for resentencing of his conviction for receipt of stolen property without prejudice to consideration of a subsequent petition that supplies evidence of his eligibility"].)
After briefing was concluded, the Supreme Court decided that granting a section 1170.18 petition does not give the People cause to withdraw from a plea agreement and reinstate charges dismissed pursuant to the original plea. (Harris v. Superior Court (2016) 1 Cal.5th 984, 987.) Although the trial court's advice to defendant regarding the consequences of testifying is now erroneous in light of Harris, the error is harmless under any standard since the defense made no offer of proof regarding defendant's possible testimony and presented no evidence of his eligibility for resentencing. --------
DISPOSITION
The judgment (order) is affirmed without prejudice to defendant filing a successive petition that supplies evidence of his eligibility for resentencing.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Mauro, J.