Opinion
E066361
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID WAYNE HAGEMAN, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF138849) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Wayne Hageman appeals from the superior court's order of September 8, 2015, denying his Proposition 47 petition to redesignate as a misdemeanor his felony conviction for receiving stolen property. (Pen. Code, § 496, subd. (a)). We affirm without prejudice to consideration of a petition properly supported by a showing that he is eligible for resentencing in accord with Proposition 47.
Section references are to the Penal Code except where otherwise indicated. --------
FACTS AND PROCEDURE
On June 24, 2009, defendant pled guilty to receiving stolen property. On that date, the trial court sentenced him to sixteen months.
On November 4, 2015, California voters passed Proposition 47, which designated receipt of stolen property a misdemeanor where the value of the stolen property does not exceed $950. (§ 496, subd. (a).) The initiative also created a procedure allowing offenders to petition for resentencing if they have been convicted of a felony that would have been a misdemeanor under the provisions added by Proposition 47. (§ 1170.18, subds. (a), (f).)
On May 20, 2015, defendant filed a petition under section Proposition 47 asking to have his receiving stolen property conviction redesignated a misdemeanor. Defendant checked the box on the form indicating he believed the value of the property did not exceed $950, but attached no supporting documents. The People filed its form response, indicating defendant was not eligible because the value of the stolen goods, a pool cabinet and cues, was $1,508. On September 8, 2015, the court held an ex parte hearing and denied the petition. The court hand wrote on the standard order form that the petition was denied because "loss exceeded 950.00. See imaged police rept. $1508.00. If def. has evidence this is not correct, he can calendar for reconsideration."
This appeal followed.
Pursuant to California Rules of Court, rule 8.320(d), defendant notified the superior court that the record did not contain the police report, probation report, or any documents relating to his resentencing petition. The superior court subsequently filed an affidavit of lost documentation indicating the documents requested by defendant could not be found and were unavailable.
DISCUSSION
Defendant acknowledges recent case law stating that a defendant in his situation, who submitted no evidence with the resentencing petition to support his claim that the theft-related felony involved an amount or goods worth not more than $950, is entitled to refile the petition if he can supply evidence to support his claim. (See, e.g., People v. Johnson (2016) 1 Cal.App.5th 953, 962; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins).) This is done by affirming the superior court's order without prejudice to consideration of a subsequent petition that provides evidence of his eligibility under Proposition 47. However, defendant argues that in this case we should reverse the court's order for lack of substantial evidence because the record on appeal does not contain the documents on which the court relied to deny the resentencing petition.
We disagree. As this court reasoned in Perkins, "this record establishes the failure of evidence began with defendant's petition. That deficiency warrants affirming the superior court's order." (Perkins, supra, 244 Cal.App.4th at p. 139.) The burden did not rest with the prosecution to show the theft-related felony involved an amount or goods worth more than $950. The burden rested with the defendant to show the contrary. The absence in the appellate record of the evidence the People supplied does not change this. The trial court could not have made its ruling had the People not introduced evidence of the value of the items. The trial court in its order denying the petition encouraged defendant to calendar the matter for reconsideration if he could present evidence to support his petition. Defendant did not do so, but is still free to file another petition supported by evidence that he is eligible for resentencing.
DISPOSITION
We affirm the order denying the defendant's petition for resentencing without prejudice to consideration of a subsequent petition that supplies evidence of defendant's eligibility.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.