Opinion
A149545
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN PAUL HOFFMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC171808B)
Defendant John Paul Hoffman appeals from the trial court's denial of his petition seeking to reduce his felony conviction for receipt of stolen property to a misdemeanor under Penal Code section 1170.18 enacted by the voters as part of Proposition 47, The Safe Neighborhood and Schools Act (Prop. 47). Because Hoffman failed to prove the value of the stolen property in his possession exceeded $950, Hoffman did not satisfy his burden of demonstrating his eligibility for reduction. Therefore, we affirm.
All statutory references are to the Penal Code.
BACKGROUND
In August 2010, during a parole search of one of Hoffman's co-defendants, Novato police found Hoffman in a motel room with blank checks, credit cards, bank statements and other financial documents belonging to neither Hoffman or his co-defendants. Officers also found a "laptop accessory kit" addressed to someone else. In another motel room to which Hoffman had the key, officers found additional financial documents belonging to third parties, including tax returns, bank statements and over a dozen checks payable in amounts ranging from $50.74 to $12,000. Also in the room were title certificates for an automobile and a motorcycle issued to third parties.
Hoffman was charged with eight crimes. This appeal concerns count 6 of the information, felony receipt of stolen property under section 496, subdivision (a). Hoffman was charged with receiving stolen property belonging to over 25 different third parties and which included but was not limited to checks, credit cards, vehicle title certificates, and computer equipment. Pursuant to a negotiated disposition, Hoffman admitted the allegations and pleaded guilty to all crimes, including count 6. The trial court suspended imposition of sentence and placed Hoffman on five years' probation.
In July 2016, Hoffman petitioned for resentencing under section 1170.18, subdivision (a) to reduce his section 496, subdivision (a) conviction for felony receipt of stolen property to a misdemeanor based on Prop. 47's reclassification of offenses where the value of the items stolen did not exceed $950. The trial court denied the petition. Hoffman appeals.
DISCUSSSION
Hoffman claims that the trial court erred in denying his Prop. 47 petition when it concluded that the checks, credit cards, and certificates of title to vehicles in Hoffman's possession had more than de minimis value. Rather, Hoffman contends the value of these items did not exceed $950 and his petition should have been granted. We disagree.
Prop. 47 reclassified certain theft-related offenses from felonies to misdemeanors for eligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) As pertinent here, Prop. 47 reduced receipt of stolen property under section 496, subdivision (a) to a misdemeanor in cases where the value of the stolen property does not exceed $950. (§ 496, subd. (a).)
Prop. 47 also enacted section 1170.18, which establishes the process for defendants to seek a reduced sentence: "A person currently 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 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 before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Section[ ] . . . 496 . . . of the Penal Code, as [that] section[] ha[s] been amended or added by this act." (§ 1170.18, subd. (a), as enacted by Stats.2014, ch. 33, sec. 14.) Section 1170.18 continues: "Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Section[ ]. . . 496, . . .of the Penal Code, [as that] section[] ha[s] been amended or added by this act, 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).)
The Supreme Court's recent decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), is instructive on the necessary showing under section 1170.18. In Romanowski, the defendant stole access card account information (i.e., credit and debit card information), for which he was convicted of felony grand theft under section 484e, subdivision (d). (Id. at pp. 906-907.) The Romanowski court concluded that section 484e, subdivision (d) was one of the categories of grand theft Prop. 47 modified "by inserting a $950 threshold." (Id. at p. 908.) The court rejected the argument that access cards have no intrinsic value and are only a means of access to other valuable property. (Id. at pp. 910-911.) In considering how courts determine whether the value of stolen access card information exceeds $950 for purposes of resentencing, the court held that "the $950 threshold for access card information must reflect a reasonable approximation of the stolen information's value" and "requires courts to identify how much stolen access card information would sell for," which could include evidence of illegal market value. (Id. at pp. 914, 915.) The court explained, "As with any other theft that is punished based on the stolen property's value, 'the reasonable and fair market value shall be the test.' " (Id. at p. 917.) Further, the court made clear that "the ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (Id. at p. 916.)
Here, Hoffman did not satisfy his burden. The record, which includes Hoffman's petition and the transcript from the hearing on his petition, contains no evidence of the value of any of the stolen property he received. Other than his counsel's declaration identifying the stolen property in Hoffman's possession, Hoffman provided no evidence about the items taken or any information about the fair market value of the information stolen. In particular, Hoffman admits that he did not establish the value of the "laptop accessory kit"—the one piece of stolen property in Hoffman's possession that was not a financial document, card, or driver's license. This alone would be a sufficient basis to affirm the trial court's denial of resentencing.
Even considering the assorted financial documents that were the focus of his petition—checks, credit cards, and vehicle certificates whose value Hoffman contends is limited to "the paper on which they are printed"—he fares no better. Hoffman relies principally on People v. Vandiver which concluded the value of unendorsed stolen blank checks in the defendant's possession was de minimis and on that basis affirmed a Prop. 47 reduction. (People v. Vandiver (Mar. 30. 2017) E065899, review den. and opn. ordered nonpub. June 14, 2017 (Vandiver).) But a few months after Hoffman filed his Opening Brief, Vandiver was ordered depublished. (See ibid.) It is no longer citable authority. (Cal. Rules of Court, Rule 977(a).) Because he introduced no facts on valuation beyond a list of the stolen items in his possession, Hoffman failed to meet his burden of proving his eligibility for reduction under section 1170.18 and his Prop. 47 resentencing petition was properly denied.
Hoffman argues the laptop accessory kit is irrelevant to our analysis because the trial court did not rely on it to deny his petition. It is a "fundamental rule that an appellate court will affirm a judgment if it is correct on any ground, regardless of the trial court's stated reasons, and that an appellate court reviews the trial court's decision rather than the reasons for the decision." (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 87, fn.7.) The trial court's choice does not constrain our decision. Hoffman also notes that the prosecutor did not suggest at the section 1170.18 hearing the kit had a value exceeding $950 but this, too, is of no consequence in light of Hoffman's burden to prove the kit's value, as explained above. (See Romanowski, supra, 2 Cal.5th at p. 916.) Beyond Vandiver, Hoffman offers no other arguments or evidence in support of his de minimis valuation arguments with respect to the checks, credit cards, and title certificates.
DISPOSITION
The order is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
/s/_________
Jenkins, J.