Opinion
E064803
04-28-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON SAMUEL HEYMAN, Defendant and Appellant.
Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1200292) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed and remanded with directions. Randall H. Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jason Samuel Heyman appeals from an order of the superior court denying his petition (Pen. Code, § 1170.18) to reduce his felony receiving stolen property (§ 496, subd. (a)) conviction to a misdemeanor under the Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18.) On appeal, defendant argues his counsel was ineffective because (1) counsel requested the court value non-relevant items, and (2) counsel failed to establish the fair market value of the property at the time of the theft. For the reasons explained below, we remand the matter for a further hearing to determine the fair market value of the relevant stolen property.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
In October 2013, defendant pled guilty to a single count of felony receiving stolen property (§ 496, subd. (a)) on or about December 22, 2011. The charge to which defendant pled guilty involved a guitar, a California driver's license, Xbox controllers, Xbox games, and PlayStation games. At the plea hearing, the court reviewed with defendant the charge, including the list of stolen items. Defendant also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). In return, the remaining allegations were dismissed and defendant was sentenced to a total term of 16 months in state prison, consecutive to sentences he received in three other felony cases.
In November 2014, the electorate passed Proposition 47. On December 31, 2014, defendant filed a petition for resentencing under Proposition 47. The People requested a hearing to determine the value of the stolen property. The trial court set the matter for a hearing on the value of the stolen property and appointed counsel for defendant.
The hearing on the value of the property was held on October 30, 2015. At that time, defense counsel submitted two defense investigative reports to the court as to the value of the stolen property. In a report dated September 29, 2015, the defense investigator reported that the victim had estimated the value of the stolen property from his residence at $2,656, based upon the estimated price the victim had paid for each item, which included: (1) an acoustic Seagull guitar at $300; (2) three white Xbox 360 controllers at $150 ($50 each); (3) a black Xbox controller at $40; (4) 31 Xbox games at $1,240 ($40 each); (5) two PlayStation 3 games at $80 ($40 each); (6) a Nintendo Game Cube game at $40; (7) a samurai sword at $200; (8) a .22 revolver at $300; (9) an Airsoft AR-15 rifle at $300; (10) an empty PlayStation video game case at $1; and (11) five empty Xbox video game cases at $5 ($1 each).
In a report dated October 23, 2015, the defense investigator reported that he had calculated the current replacement cost for the above-referenced items at $814.09. Searching internet websites, the investigator calculated replacing the non-video game stolen items with used versions of the items at $666.56, calculated as follows: (1) acoustic Seagull guitar at $200; (2) four Xbox 360 controllers at $71.56 ($17.89 each); (3) a samurai sword at $87; (4) a .22 revolver at $219; and (5) an Airsoft AR-15 rifle at $89. The investigator also calculated, by examining searches on websites, that replacing the 31 stolen video games with used versions would cost $147.53. The investigator noted that each of the games had been produced prior to 2006, and "Mario Party 4[](2002)," the most expensive game to purchase currently, would cost $12.99. The investigator did not include the used value of the empty video game cases purchased by the victim for $6.
In the October 23, 2015 report, the investigator also noted that new versions of the non-video game stolen items would cost $1,218, calculated as follows: (1) acoustic Seagull guitar at $369; (2) four Xbox controllers at $128 ($32 each); (3) a samurai sword at $126; (4) a .22 revolver at $300; and (5) an Airsoft AR-15 rifle at $295. The current values of new versions of the stolen video games were unavailable.
At the hearing, defense counsel argued that the victim gave values, "but values of what he originally paid for." The trial court responded that the victim's estimate for what he had paid for the items "seems fair." The court further noted "Retail value is fair. It's used for restitution." The prosecutor urged the court to use the victim's estimate of what he paid for the items as the correct measure of value.
Upon examination of the defense investigator, the court noted that the value would be more than $950 "even if we don't take the retail values, aren't we?" The prosecutor agreed, clarifying that the current cost of new versions of the stolen items would exceed $950. Defense counsel pointed out that gaming consoles change; that one of the Xbox games at this point was nonexistent; and that when the incident occurred, the games were at the earliest five years old. The court replied that video games cost "50 bucks a pop" or "40 bucks a pop and you still get $1,240 just for those." The court then estimated that "[e]ven if you downgraded that another ten dollars [and] with the rest of the stuff, you'd still be over $950." Defense counsel argued that the victim does not get "a whole brand-new new-edition Xbox five years later and get the benefit of a new Xbox game, the value from what he had at the time." The court responded, "[w]hy? Some bad person stole his old one." Defense counsel replied that the victim "should get what the value was at the time it was stolen, what his property actually was valued at when it was stolen." The court denied defendant's petition, finding that "the games alone and then there are multiple other stolen items, even taking discounted amounts . . . . [¶] . . . [¶] . . . that the amount of the loss is over $950."
Defendant timely filed a notice of appeal on November 3, 2015.
II
DISCUSSION
Defendant argues he received ineffective assistance of counsel when counsel submitted to the trial court investigative reports containing values of non-relevant items of property and by failing to establish the fair market value of the relevant stolen property at the time of the theft. He therefore requests the matter be remanded for a further hearing. The People respond that defendant cannot establish his counsel was ineffective at the Proposition 47 hearing because the law was unsettled at the time of defendant's Proposition 47 hearing. For the reasons explained below, we remand the matter for a further hearing to determine the fair market value of the stolen property at issue.
A. Applicable Law
On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) "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.) As relevant here, Proposition 47 allows for a defendant to be resentenced and the felony conviction for receiving stolen property to be deemed a misdemeanor upon a showing that the value of the stolen property did not exceed $950. (§§ 1170.18, subds. (a) & (b), 496, subd. (a).)
In part, recently amended section 496, subdivision (a), provides: "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 . . . ." (Italics added.) (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 9, p. 72.)
Prior to Proposition 47, which includes the time of defendant's felony conviction, the last quoted sentence provided: "However, if the district attorney or the grand jury determines that this action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year." (§ 496, former subd. (a); Stats. 2011, ch. 15, § 372.)
Proposition 47 also created a procedure whereby a person who is serving a felony sentence for an offense that became a misdemeanor under Proposition 47 may petition for a recall of that sentence and request resentencing under the applicable statute that was added or amended by Proposition 47. (§ 1170.18, subd. (a); Rivera, supra, 233 Cal.App.4th at p. 1092.) Pursuant to this procedure, defendant applied to the trial court to recall his felony sentence for receiving stolen property and to be resentenced under section 496, subdivision (a), as amended by Proposition 47.
Specifically, section 1170.18, subdivision (a), allows "[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 [Proposition 47 had it] been in effect at the time of the offense" to "petition for a recall of sentence" and request resentencing. (§ 1170.18, subd. (a).) A person seeking resentencing under section 1170.18 must show he or she fits the criteria in subdivision (a). If the person satisfies the criteria, the person shall have his or her sentence recalled and resentenced to a misdemeanor, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b); T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.)
Section 1170.18, subdivision (b), provides in part: "Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a)." "Under subdivision (b) a person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her sentence recalled and be sentenced to a misdemeanor (subject to certain exclusions not relevant here)." (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).)
"[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (Sherow, supra, 239 Cal.App.4th at p. 878.) The petitioner for resentencing has the "initial burden of proof" to "establish the facts upon which his or her eligibility is based." (Id. at p. 880.) If the crime under consideration is a theft offense, " 'the petitioner will have the additional burden of proving the value of the property did not exceed $950.' [Citation.]" (Id. at p. 879.) In making such a showing, "[a] proper petition could certainly contain at least [the petitioner's] testimony about the nature of the items taken." (Id. at p. 880.) If the petition makes a sufficient showing, the trial court "can take such action as appropriate to grant the petition or permit further factual determination." (Ibid.)
We review the trial court's legal conclusions de novo and its findings of fact for substantial evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).) The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) "In interpreting a voter initiative like Proposition [47], [the courts] apply the same principles that govern statutory construction." (People v. Rizo (2000) 22 Cal.4th 681, 685.) " 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]' " (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276 (Horwich).) "In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.) "The trial court's decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutory criteria for relief," including whether the value of the property involved is less than $950. (People v. Contreras (2015) 237 Cal.App.4th 868, 892.)
The Sixth Amendment right to counsel applies at a Proposition 47 hearing. (People v. Rouse (2016) 245 Cal.App.4th 292, 297.) To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Waidla (2000) 22 Cal.4th 690, 718.)
On direct appeal, a reviewing court will reverse a conviction for ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) We presume that counsel's conduct falls within the wide range of reasonable professional assistance and we accord great deference to counsel's tactical decisions. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) "If 'counsel's omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.' [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons. To engage in such speculations would involve the reviewing court ' "in the perilous process of second-guessing." ' [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal. [Citation.]" (People v. Diaz (1992) 3 Cal.4th 495, 557-558.)
If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
In addition to showing counsel's performance was deficient, the defendant must also show prejudice flowing from counsel's performance or lack thereof. (People v. Williams (1997) 16 Cal.4th 153, 215.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.; In re Neely (1993) 6 Cal.4th 901, 908-909; In re Jones (1996) 13 Cal.4th 552, 561.)
B. Analysis
Here, the trial court appropriately conducted an evidentiary hearing to determine the value of the stolen property. Defendant, however, claims his counsel provided ineffective assistance at the hearing based on two grounds. First, he argues counsel prejudicially erred in submitting reports that included non-charged items in determining the value of the stolen property. Second, he asserts counsel erred in failing to provide sufficient evidence of the fair market value of the stolen property.
After defendant's hearing on his petition, published cases clarified that to determine value, the trial court should only consider stolen property involved in the count to which the defendant pled guilty. (Perkins, supra, 244 Cal.App.4th at pp. 140-141 [for purposes of determining value under Proposition 47, the trial court cannot consider other items of stolen property that the defendant possessed but were not the subject of the count to which the defendant pled guilty]; People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310 (Hoffman) [A trial court cannot aggregate the value of items in separate counts in order to find the defendant ineligible for Proposition 47 relief].)
Hoffman, supra, 241 Cal.App.4th 1304 is illustrative. Prior to the passage of Proposition 47, the defendant in Hoffman was convicted of seven felony counts of forgery, based on the passing of seven bad checks. (Id. at p. 1307.) Proposition 47 reduced the crime of forgery from a felony to a misdemeanor, so long as the "value of the check" or other instrument was less than $950. (§ 473, subd. (b).) None of the checks forged by the defendant had a face value of more than $950. (Hoffman, at p. 1307.) The People conceded the value of the checks forged by the defendant could not be aggregated across her convictions to defeat redesignation under section 1170.18. The Hoffman court accepted the People's concession, based on the language in section 473 tying the designation of the offense as a felony or misdemeanor to the value of the instrument forged. The court found its holding supported by the legislative history of the proposition. (Hoffman, at p. 1310.)
In People v. Salmorin (2016) 1 Cal.App.5th 738, the court extended Hoffman's reasoning to preclude aggregation of the value of forged instruments even when those forgeries were charged in a single count, rather than in separate counts, as in Hoffman. (Salmorin, at pp. 745-748.) The People had not conceded the issue, arguing that the value of forged instruments can be aggregated within counts (id. at p. 745), but the office did not seek review of the Salmorin decision. --------
Here, this situation is somewhat different from that of Hoffman, since section 496 does not tie the designation of the offense to the value of a single item, in the same manner that section 473 refers to a single check or instrument. Nonetheless, it is necessarily the value of the stolen goods charged in an individual count that must be evaluated to determine whether the conviction resulting from that count is a felony or a misdemeanor under section 496.
Furthermore, we agree with both parties that the correct method of calculating the stolen property is fair market value. While amended section 496 does not specify how the $950 threshold is determined, "[t]he means of valuing stolen property is settled under the theft statutes. . . . [¶] Penal Code section 484 defines theft. In doing so, it states: 'In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, . . .' " (People v. Swanson (1983) 142 Cal.App.3d 104, 107 [holding the value of stolen property for purposes of a section 12022.6 enhancement is the fair market value of that property, and also concluding, "While the statute limits itself by saying it is 'for the purposes of this section,' no actual reason exists for applying a different test for section 12022.6 from that described in section 484"].) Like the court in People v. Swanson, we conclude there is no reason to apply a different test to section 496, which is also part of the theft statutes. (See People v. Gopal (1985) 171 Cal.App.3d 524, 541 [section 496 encompasses the receipt or possession of articles obtained by theft. Anything that can be the subject of theft can also be property under section 496]; Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1048 [the court used section 484 to interpret section 496].)
The "fair market value" means the highest price obtainable in the market place rather than the lowest price or the average price. (People v. Pena (1977) 68 Cal.App.3d 100, 104; see People v. Tijerina (1969) 1 Cal.3d 41, 45 ["In the absence of proof . . . that the price charged by a retail store from which merchandise is stolen does not accurately reflect the value of the merchandise in the retail market, that price is sufficient to establish the value of the merchandise"]; People v. Lizarraga (1954) 122 Cal.App.2d 436, 438 [" 'The value to be placed upon stolen articles for the purpose of establishing a felony charge is the fair market value of the property and not the value of the property to any particular individual' "]; People v. Cook (1965) 233 Cal.App.2d 435, 438 [clothing stolen from a department store is to be valued by its fair market value, not its special value of the property to any particular individual]; People v. Williams (1959) 169 Cal.App.2d 400, 403 [value of men's suits stolen from store was the fair market value, as testified to by sales clerk of store].)
The question thus remains whether counsel was ineffective for presenting an investigative report that included stolen property that was not the subject of the count to which defendant pled guilty, and for failing to present sufficient evidence of the fair market value of the charged stolen property. We view defendant's ineffective assistance claims in light of the absence of controlling case law, indulging as we must a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Makabali (1993) 14 Cal.App.4th 847, 853, quoting Strickland, supra, 466 U.S. at p. 689.) "An evaluation of counsel's performance does not depend, as an initial matter, on whether ' "a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." ' " (People v. Upsher (2007) 155 Cal.App.4th 1311, 1328 (Upsher), quoting In re Alvernaz (1992) 2 Cal.4th 924, 937 (Alvernaz), quoting McMann v. Richardson (1970) 397 U.S. 759, 771.) "That element of deficient performance is established if the record demonstrates that counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice." (Upsher, at pp. 1328-1329, citing Alvernaz, at p. 937.)
These principles, and the unsettled state of the law concerning Proposition 47, compel us to conclude defendant's trial counsel did not render constitutionally ineffective assistance by submitting an investigative report that included non-charged stolen goods and for failing to present sufficient evidence of the fair market value of the charged stolen property. (See Upsher, supra, 155 Cal.App.4th at pp. 1328-1329 [failure to move to bifurcate prior conviction trial in prosecution for dissuading witness with prior conviction of same offense was not deficient performance because of "absence of controlling case law" and "unsettled state of the law" whether recidivist aspect was element of offense or sentencing provision]; People v. Foster (2003) 111 Cal.App.4th 379, 385 [because no California authority established whether certain cross-examination questions were proper, defendant could not establish that his counsel's failure to object to the questions " 'fell below an objective standard of reasonableness' "].)
Nonetheless, we conclude there is insufficient evidence in the record to support the trial court's finding the value of the stolen property exceeded $950.
It appears the trial court calculated the fair market value of the non-game items at $277.56, and added to that calculation an additional $350 for the non-charged items. In regard to the video games, the trial court presumed the value of the stolen games at the least amount of $30 per game, for a total of $930. However, in applying the fair market value of the video games, it appears the total value at the time of the theft would be $543.75, based on appellate counsel's linear depreciation calculation. Hence, deducting the non-charged items, defendant would be eligible for resentencing on his felony conviction for receiving stolen property as the total value of the stolen property would be less than $950, i.e., $821.31 ($277.56 plus $543.75).
Based on the foregoing, we will remand the matter for a further hearing on defendant's Proposition 47 petition.
III
DISPOSITION
The order denying defendant's Proposition 47 petition is reversed and the matter is remanded for a further hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.