Opinion
D072192
02-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN MANUEL HERNANDEZ, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton, Seth M. Friedman and Sharon L. Rhodes, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCS194788, SCS190587) APPEAL from orders of the Superior Court of San Diego County, David J. Danielsen, Judge. Reversed and remanded with directions. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Juan Hernandez filed a petition pursuant to Penal Code section 1170.18, subdivisions (f)-(g) requesting that the trial court re-designate as a misdemeanor a prior felony conviction that he suffered for receiving stolen property (§ 496, subd. (a)) in case No. SCS190587 (SCS 190587). On the same day that Hernandez filed his petition, the trial court summarily denied it on the ground that "[t]he petition seeks relief on an ineligible conviction - PC 139." The record indicates that the trial court mistakenly believed that the petition pertained to a separate conviction that Hernandez suffered for dissuading a witness by force or threat (§ 139) in case No. SCS194788 (SCS 194788).
Unless otherwise specified, all subsequent statutory references are to the Penal Code. Section 1170.18 was adopted as part of Proposition 47, the Safe Neighborhoods and Schools Act (the Act).
Hernandez was sentenced on both cases in a single proceeding.
On appeal, Hernandez requests that the trial court's order be reversed and the matter be remanded so that the trial court may properly consider his petition. The People concede that the trial court erred and agree that the matter should be remanded to the trial court for proper consideration of Hernandez's petition. We agree. Accordingly, we reverse the order denying Hernandez's petition for re-designation with respect to his conviction for receiving stolen property (§ 496, subd. (a)) in SCS 190587 and remand the matter to the trial court with directions to consider Hernandez's petition.
II.
PROCEDURAL BACKGROUND
The underlying facts of Hernandez's convictions are not relevant to our disposition of this appeal.
On January 24, 2006, the trial court sentenced Hernandez to an aggregate sentence of 17 years and four months in state prison in SCS 194788 and SCS 190587.
With respect to SCS 190587, the trial court imposed the principal term of five years on Count 1 (§ 207, subd. (a)) (kidnapping), a consecutive eight-month term on Count 3 (§ 10851, subd. (a)) (unlawful taking of a vehicle), and a consecutive eight-month term on Count 6 (§ 496, subd. (a)) (receiving stolen property). The court also imposed a ten-year firearm enhancement pursuant to section 12022.53, subdivision (b).
With respect to SCS 194788, the trial court sentenced Hernandez to a one-year term on Count 7 (§ 139) (dissuading a witness by threatening force or violence), to be served consecutively to his sentence in SCS 190587.
On April 10, 2017, Hernandez filed a petition to re-designate his conviction for violating section 496, subdivision (a), possessing stolen property. That same day, Hernandez filed a second petition to re-designate his conviction for violating section 10851, subdivision (a), unlawful taking of a vehicle.
Also on April 10, the trial court summarily denied both petitions in two orders. One order lists SCS 194788, and states, "The petition seeks relief on an ineligible conviction - PC 139." A second order lists SCS 190587, and states, "The petition seeks relief on an ineligible conviction - VC 10851(a)."
The People did not file an opposition to either petition.
Hernandez timely filed a notice of appeal from both orders.
III.
DISCUSSION
The matter must be remanded to permit the trial court to properly rule on
Hernandez's petition for re-designation of his conviction for receiving stolen property
Hernandez claims that the trial court "failed to rule on [his] Proposition 47 petition as to his section 496, subdivision (a), conviction." A. Governing law
The Supreme Court recently concluded that "[a] person convicted before Proposition 47's passage for vehicle theft under Vehicle Code section 10851 may therefore be resentenced under section 1170.18 if the person can show the vehicle was worth $950 or less." (People v. Page (2017) 3 Cal.5th 1175, 1180.) However, we need not address Page, nor the trial court's order with respect to Hernandez's petition as to his section 10851, subdivision (a) conviction, since Hernandez presents no argument on appeal with respect to this order.
Among numerous other provisions, Proposition 47 designated as misdemeanors certain crimes that were previously felonies. (See, e.g., § 496, subd. (a) [receiving stolen property if the value of the property does not exceed $950].)
Proposition 47 also created provisions permitting the resentencing of certain defendants (§ 1170.18, subds. (a), (b)) and authorizing the designation of certain prior convictions as misdemeanors (id., subds. (f)-(h)). With respect to re-designation, section 1170.18 provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application to have their felony convictions "designated as misdemeanors." (§ 1170.18, subds. (f)-(h).) B. Application
The record is clear that the trial court erroneously summarily denied Hernandez's petition due to its mistaken belief that Hernandez's petition sought re-designation of his conviction for dissuading a witness by threat or force pursuant to section 139. While Hernandez's petition stated that he sought re-designation of his offense for his "violation [of] section 496[, subdivision] (a)," the court summarily denied the petition on the ground that "[t]he petition seeks relief on an ineligible conviction - PC 139." Under these circumstances, the People forthrightly concede that "the matter should be remanded to the trial court for consideration of [Hernandez's] petition as to his receiving stolen property conviction." We agree. The trial court's order denying Hernandez's petition for re-designation of his receiving stolen property conviction must be reversed and the matter remanded to the trial court for further consideration of the petition.
Hernandez's form petition stated that he sought to have his "felony offense . . . re-designated a misdemeanor," and referred to the subdivisions of section 1170.18 governing re-designation (i.e., subds. (f)-(g)). However, the parties on appeal refer to Hernandez's petition as seeking "resentencing" under section 1170.18, subdivisions (a), (b). Although the distinction is not material for purposes of this appeal, we refer to Hernandez's petition as seeking re-designation in accordance with the language of the petition.
On remand, Hernandez shall have the initial burden of establishing eligibility for re-designation of his conviction under the Act by demonstrating that the value of the property received was less than $950. (See People v. Sherow (2015) 239 Cal.App.4th 875, 880.) --------
IV.
DISPOSITION
The order denying Hernandez's petition for re-designation with respect to his conviction for receiving stolen property (§ 496, subd. (a)) in SCS 190587 is reversed. The matter is remanded to the trial court with directions to consider Hernandez's petition.
AARON, J. WE CONCUR: McCONNELL, P. J. HALLER, J.