Opinion
A144595
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER R. HELM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC174724A)
This is an appeal from the trial court's denial of Christopher R. Helm's (appellant) petition under Proposition 47 to have one of his prior felony convictions reclassified as a misdemeanor conviction. In his original appeal, we affirmed the denial of his petition on the ground that appellant had failed to present any evidence that the value of the stolen items was less than $950, the threshold for resentencing under Proposition 47. (People v. Helm (March 30, 2016, A144595) [nonpub. opn.], review granted June 8, 2016 (Helm I).)
Proposition 47 made certain drug-and theft-related offenses misdemeanors, and also created a resentencing provision, Penal Code, section 1170.18, under which "[a] person serving a sentence for a conviction . . . 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" and request resentencing. (Pen. Code, § 1170.18, subd. (a).) --------
Appellant filed a petition for review, and the California Supreme Court granted review and held the case along with numerous other similar cases. On August 16, 2017, the Supreme Court transferred the case back to this court for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski).
Upon reconsideration, we affirm without prejudice to subsequent consideration of properly filed, verified petitions supplying evidence of eligibility for relief under Proposition 47 as set forth in Romanowski, supra, 2 Cal.5th at page 916.
FACTUAL AND PROCEDURAL BACKGROUND
On March 16, 2011, a felony complaint was filed charging appellant with auto burglary (Pen. Code, § 459; count 1), two counts of receiving stolen property (Pen. Code, § 496, subd. (a); counts 2 & 3), and misdemeanor possession of burglar tools (Pen. Code, 466; count 4). The complaint further alleged that appellant had suffered two prior felony convictions (Pen. Code, § 1203, subd. (e)(4)). Appellant pleaded guilty to counts 1 and 2, and the trial court suspended execution of a prison term of two years and eight months, and placed appellant on probation for three years. Thereafter, appellant violated the terms and conditions of probation, and the court revoked probation and imposed the prison sentence.
On December 22, 2014, appellant petitioned the trial court under Proposition 47 for resentencing of his prior conviction for receipt of the following stolen property: "a purse, wallet, credit card, a cell phone and mail belonging to [twelve named individuals], and personal identifying information belonging to [nine named individuals]." Among the "mail" and "personal identifying information" belonging to the victims were credit cards, passports, tax filing information, and checks. In his petition, appellant argued that the checks had only "nominal" value but did not address the value of the other mail and personal identifying information. As to the "purse, wallet, credit card, and cell phone," appellant essentially stated it was impossible to determine their value, stating, "Given the fact that in our consumer society the value of [those] items . . . can range from a few dollars to a few thousand dollars, their value in the present case was and is ambiguous."
After hearing argument from the parties and taking the matter under submission, the trial court denied the petition on the ground that appellant had not met his burden of proving that the value of the stolen property was less than $950.
DISCUSSION
In Romanowski, the Supreme Court held that "theft of access card account information—an offense that includes theft of credit and debit card information—is one of the crimes eligible for reduced punishment" under Proposition 47, so long as the value of the information stolen is less than $950. (Romanowski, supra, 2 Cal.5th at pp. 905, 916.) The Court held that in determining the value of the stolen information, courts are to look at the "reasonable and fair market value," i.e., "how much [the information] would sell for" in either legal or illegal markets. (Id. at pp. 915-916.)
The Court further held: "The ultimate burden of proving . . . eligibility lies with the petitioner. [Citation.] In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, 'the petitioner's felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' [Citation.] But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be '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.' " (Romanowski, supra, 2 Cal.5th at p. 916.)
In our original decision in this case, we agreed with the trial court that appellant had failed to meet his burden of proving that the value of the stolen items and information was less than $950. We recognize, however, that the requirements governing pleading and proof in requests for relief under Proposition 47 were unsettled at the time appellant submitted his petition in December 2014, less than two months after the electorate enacted the proposition. Moreover, the Supreme Court in Romanowski has now determined the appropriate method for valuation of access card information, including credit and debit information. We therefore affirm the trial court's order denying relief, but do so without prejudice to subsequent consideration of properly filed, verified petitions providing evidence of eligibility for relief under Proposition 47. (See People v. Perkins (2016) 244 Cal.App.4th 129, 139-140, 142; People v. Sherow (2015) 239 Cal.App.4th 875, 881.)
DISPOSITION
The trial court's order denying appellant's petition is affirmed without prejudice to subsequent consideration of properly filed, verified petitions supplying evidence of eligibility for relief under Proposition 47 as set forth in Romanowski, supra, 2 Cal.5th at page 916.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.