Opinion
E075912
06-01-2021
THE PEOPLE, Plaintiff and Respondent, v. DONNELL ANTHONY HART, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVA011944 Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
FACTUAL AND PROCEDURAL HISTORY
On August 24, 1999, a felony complaint charged defendant and appellant Donnell Anthony Hart with one count of receiving stolen property, a 1988 Cadillac Deville, under Penal Code section 496, subdivision (a) (count 1). On September 2, 1999, defendant pled guilty to receiving stolen property under section 496, subdivision (a). Thereafter, the trial court granted defendant probation for three years.
All statutory references are to the Penal Code unless otherwise specified.
On January 31, 2020, defendant filed a petition under section 1170.18 (Proposition 47) to reduce his conviction to a misdemeanor. On August 21, 2020, at the hearing on defendant's petition, the trial court denied the petition. The court found that defendant's conviction was not a qualifying offense based on Proposition 47 pursuant to People v. Orozco (2020) 9 Cal.5th 111 (Orozco).
On October 8, 2020, defendant filed a timely notice of appeal.
DISCUSSION
Defendant's sole contention on appeal is that “the trial court erroneously denied the petition to reduce the receiving stolen property conviction to a misdemeanor under Proposition 47” under Orozco, supra, 9 Cal.5th 111. (All caps. omitted.) The People agree that defendant's conviction “is a qualifying offense under Proposition 47.” We agree with the parties.
“On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went into effect the next day.” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.) Proposition 47 created a resentencing provision, codified as section 1170.18, which provided that “a person ‘currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47.” (Id. at p. 1092, quoting § 1170.18, former subd. (a).)
In this case, defendant filed a petition under section 1170.18 to reduce his conviction to a misdemeanor. At the hearing on the Proposition 47 petition, the People stated: “This was a conviction for 496(a) which at the time applied to vehicles. It would be a 496(d). [Defendant] is ineligible under the new Supreme Court case People versus Orozco, 9 Cal.5th 111, and it's a 2020 case.” Defense counsel responded, “I am aware of Orozco. I would submit.” Thereafter, the court stated: “All right. It does appear based on the appellate authority that the defendant is statutorily ineligible for relief, so the petition to reduce the matter to a misdemeanor and resentence as a misdemeanor is denied.”
In Orozco, supra, 9 Cal.5th 1121, the California Supreme Court held that “Proposition 47's revision to section 496, making the offense of receiving stolen property a misdemeanor when the value of the property is $950 or less, does not extend to convictions for receiving a stolen vehicle under section 496d.” (Orozco, supra, 9 Cal.5th at p. 115.) In Orozco, the defendant was convicted of violating section 496d. (Ibid.)
Here, unlike the defendant in Orozco, defendant was convicted of violating section 496, subdivision (a), not section 496d. Therefore, defendant's conviction is a qualifying offense under Proposition 47; and the trial court erred in finding that defendant was statutorily ineligible for relief under section 1170.18.
The next issue is whether the value of the vehicle has been proven to be $950 or less. Defendant argues that the Department of Corrections and Rehabilitation report, which showed that defendant was ordered to pay a $400 restitution fine, establishes that the property was worth less than $950. The People, however, disagree and state that the case should be remanded to the trial court to determine what the fair market value of the vehicle was at the time the conviction occurred. We agree with the People.
“In pre-Proposition 47 cases, where the defendant seeks resentencing or redesignation under Penal Code section 1170.18, the defendant bears the burden of proof to show the relevant facts.” (People v. Bullard (2020) 9 Cal.5th 94, 110.) Courts have acknowledged “the fundamental difficulty a defendant faces when eligibility for Proposition 47 relief depends on establishing the value of property stolen decades ago. ‘In any new petition, defendant should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief.' [Citations.] That evidence may include probative evidence not included in the original trial court record. [Citation.] Further, the evidence available, even outside the court record, may be limited. [Citation.] Evidence the court may consider can include ‘a statement of personally known facts necessary to eligibility.' [Citation.] Taken together, the cases stand for the proposition that the evidence a defendant must present to meet the preponderance of the evidence standard may be cobbled together from whatever is available, based on the facts of the underlying case.” (People v. Zorich (2020) 55 Cal.App.5th 881, 887.)
In this case, defendant was convicted of receiving a stolen vehicle under section 496, subdivision (a), in 1999, more than 20 years ago. In defendant's section 1170.18 petition filed on January 31, 2020, there was no information describing the stolen vehicle or any evidence establishing the value of the vehicle. The only information attached was the Department of Corrections and Rehabilitation Report indicating that defendant was ordered to pay a $400 restitution fine.
We agree with the People that the $400 restitution order fails to establish that the vehicle was worth less than $950. There is nothing in the record to support how the restitution amount was determined-or whether it was based on the value of the vehicle. Without any supporting documentation, there is nothing in the record with which we can determine the value of the vehicle. However, Defendant argues that the restitution award “established by a preponderance [of the evidence that] the property was worth $950 or less.” In support of his claim that a restitution award can be used to determine the value of stolen property for Proposition 47, defendant cites to Caretto v. Superior Court (2018) 28 Cal.App.5th 909, 919. Caretto does not apply to this case. In Caretto, the issue was how the value of stolen access card information can be valued. The court noted that “[t]he fair market value test from Romanowski is the controlling test for valuing stolen access card information for Proposition 47 purposes. ([The People v. ]Romanowski [(2017)] 2 Cal.5th [903, ] 914 [‘Courts must use section 484's “reasonable and fair market value” test when applying section 490.2's value threshold for theft crimes']; id. at p. 915... [‘We thus hold that the Penal Code's reference to the “reasonable and fair market value” requires courts to identify how much stolen access card information would sell for'].)” (Id. at p. 920.) In Caretto, the court discussed and clarified its previous opinion in People v. Liu (2018) 21 Cal.App.5th 143, review granted June 13, 2018, S248130, which considered evidence of the amount of fraudulent charges or how much restitution was ordered, or both. This case is distinguishable. Here-the stolen property was a vehicle-the value of which can be determined by looking at the make, model and year of the car and its resale value.
In this case, because there is no information regarding the value of the stolen vehicle at the time of defendant's conviction, the case should be remanded to the trial court for the parties to present evidence regarding the value of the vehicle and for the court to determine whether the vehicle was $950 or less in 1999.
DISPOSITION
The trial court's order denying defendant's petition under Proposition 47 is reversed and the case is remanded to the trial court to determine the value of the property underlying defendant's conviction.
We concur: RAMIREZ P. J.SLOUGH J.