Opinion
H045154
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC JAMES PRAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F20232)
I. INTRODUCTION
In January 2011, defendant Eric James Pray pleaded guilty to felony receiving stolen property (former Pen. Code, § 496, subd. (a)) and felony possession of oxycodone (former Health & Saf. Code, § 11350, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years. In July 2016, defendant filed a petition to have both convictions redesignated as misdemeanors pursuant to Proposition 47 (§ 1170.18, subd. (f)). The trial court granted defendant's petition as to the oxycodone possession count but denied it as to the receiving stolen property count.
All further unspecified statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by denying his petition for redesignation of his receiving stolen property conviction, claiming that the trial court erred by concluding that the value of the stolen property—a check written for $2,200— exceeded $950. Defendant requests an evidentiary hearing where he can present evidence that the stolen check's value was less than $950. For reasons that we will explain, we will affirm the trial court's order.
II. BACKGROUND
A. The Receiving Stolen Property Conviction
As defendant was convicted by plea and there is no probation report in the record, the summary of his offenses is taken from the points and authorities defendant submitted in support of his petition for redesignation. The prosecutor did not dispute defendant's factual summary.
On December 29, 2010, defendant was the passenger in a stolen Ford Explorer that drove to an address where narcotic activity was suspected. Officers detained and ultimately arrested defendant. One of the officers who assisted in detaining defendant noticed that defendant appeared to be chewing something. The officer retrieved a plastic bag from defendant's mouth. The bag contained oxycodone pills, and it was "wrapped with a Bank of America check made out to [defendant] in the amount of $2,200.00."
Defendant was charged by complaint with receiving stolen property (former § 496, subd. (a); count 1); receiving a stolen vehicle (§ 496d, subd. (a); count 2); possession of oxycodone (former Health & Saf. Code, § 11350, subd. (a); count 3); possession of a smoking device (Health & Saf. Code, § 11364, subd. (a); count 4); and concealing evidence (§ 135; count 5). The stolen property in count 1 was originally described in the complaint as "a 4 GB thumb drive," but a handwritten notation added "$2200 check."
On January 18, 2011, defendant pleaded guilty to receiving stolen property (count 1) and possession of oxycodone (count 3). The trial court suspended imposition of sentence and placed defendant on probation for three years.
B. The Petition for Redesignation as a Misdemeanor
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) Proposition 47 "reduc[ed] the punishment for several crimes that were previously punished as felonies." (People v. Romanowski (2017) 2 Cal.5th 903, 906 (Romanowski).) Before Proposition 47, receiving stolen property was generally punishable as either a felony or a misdemeanor. (Former § 496, subd. (a); Stats. 2011, ch. 15, § 372, p. 417.) Section 496 now provides that "if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor." (§ 496, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g); Gonzales, supra, at p. 863.)
On July 27, 2016, defendant filed—through counsel—a petition to have both of his convictions redesignated as misdemeanors pursuant to section 1170.18, subdivision (f). The prosecutor filed written opposition to the petition, objecting only to redesignation of the receiving stolen property conviction "because per Judicial notes on complaint, defendant had check in the amount of $2,200." The prosecutor requested the trial court set the matter for a hearing.
C. The Evidentiary Hearing
On August 15, 2017, the trial court held a hearing on defendant's petition for redesignation. At the hearing, the prosecutor reiterated his objection to redesignation of the receiving stolen property conviction "based on the fact that the check in question was written out in the amount of $2200."
Defendant's attorney reiterated his "point about the condition of the check," arguing that because "it was chewed up, that diminished its value considerably." He asserted that the check's "face value" was not "reflective of its value" since the check had no "viability."
The trial court declined to redesignate defendant's receiving stolen property conviction as a misdemeanor "in light of the issue of value." The trial court referenced the modification of the complaint to include the handwritten notation "$2200 check." When defendant's trial counsel asked the trial court to "make a finding as to the value of . . . the stolen check," the trial court found that the value of the check was "greater than [$]950."
The trial court granted defendant's petition for redesignation of his conviction for possession of oxycodone, without objection from the prosecutor.
III. DISCUSSION
Defendant contends the trial court erred by denying his petition for redesignation of his receiving stolen property conviction, claiming that the trial court erred by concluding that the value of the stolen property—a check written for $2,200—exceeded $950. Defendant requests this court remand the matter for an evidentiary hearing at which he can present evidence that the stolen check's value was less than $950.
A related issue is currently before the California Supreme Court in People v. Franco (2016) 245 Cal.App.4th 679, review granted June 15, 2016, S233973 (Franco). As reflected on the docket in Franco, the issue presented is as follows: "For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on?" (<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2139221&doc_no=S233973> (as of May 9, 2018).)
A. Burden of Proof and Standard of Review
On a Proposition 47 petition, the defendant has the "ultimate burden" of proving eligibility for redesignation of a felony conviction as a misdemeanor. (Romanowski, supra, 2 Cal.5th at p. 916.) "[A]n evidentiary hearing may be 'required if the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (Ibid.) Where the offense of conviction is a theft crime reclassified based on the value of stolen property, a successful petition includes a "showing the value of the property did not exceed $950. [Citations.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins).) A defendant who does not present any evidence as to the value of the stolen property does not meet his or her initial burden in the trial court, and accordingly he or she cannot meet his or her burden on appeal of establishing trial court error. (People v. Johnson (2016) 1 Cal.App.5th 953, 970 (Johnson).)
"We review the trial court's construction of Proposition 47 de novo. [Citation.] We review any factual findings in connection with the court's ruling on the petition for substantial evidence. [Citations.]" (People v. Salmorin (2016) 1 Cal.App.5th 738, 743 (Salmorin).) If the defendant fails to meet his or her burden of showing that the value of the property did not exceed $950, the trial court's order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (Perkins, supra, 244 Cal.App.4th at p. 139.) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ' "[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]" [Citation.]' [Citation.]" (Ibid.)
B. Determination of the Value of the Check
Defendant argues that the trial court erroneously determined that the value of the stolen check exceeded $950 because the check was written for $2,200. Defendant contends the trial court should have determined the value of the check based on the "reasonable and fair market value" test used in the context of theft crimes. (See § 484, subd. (a); Romanowski, supra, 2 Cal.5th at p. 917.) The Attorney General argues that "in the context of section 496 and Proposition 47, the face value of a stolen check determines its fair market value."
The parties discuss three cases that have addressed the question of "value" with respect to forged checks. This court has held that the term "value" refers to "the actual monetary worth of the check—that is, the amount the defendant could obtain for the check, not the amount for which it was written." (People v. Lowery (2017) 8 Cal.App.5th 533, 541, review granted April 19, 2017, S240615 (Lowery), and further action deferred pending consideration and disposition in Franco, supra, 245 Cal.App.4th 679, review granted; see Cal. Rules of Court, rule 8.1115(e)(1).) In reaching this conclusion, this court in Lowery relied on the ordinary meaning of the word " 'value,' " which typically refers to "actual monetary worth, . . . as measured by fair market value." (Lowery, supra, at p. 539.) This court determined that this construction of "value" was consistent with the valuation of property for purposes of theft under the Penal Code. (Ibid; § 484, subd. (a) [the value of property obtained by theft shall be "the reasonable and fair market value"].) This court further determined that a statutory construction requiring monetary worth was consistent with voters' intent because the voter information guide for Proposition 47 explained that " 'forging a check worth $950 or less' " would be a misdemeanor. (Lowery, supra, at p. 540.)
In Lowery, the defendant was convicted of possessing a fictitious check (§ 476) after he unsuccessfully tried to cash a stolen check that had a forged signature and was written in the amount of $1,047.85. (Lowery, supra, 8 Cal.App.5th at p. 536, review granted.) After Proposition 47 passed, the defendant petitioned to have his conviction redesignated as a misdemeanor. The trial court held a brief hearing, at which the defendant did not personally appear and during which neither defense counsel nor the prosecutor spoke. (Id. at p. 537.) The trial court found that the defendant was ineligible for relief because the record "clearly establishe[d]" that the value of the check exceeded $950, in that it was written for $1,047.85. (Ibid.)
In remanding the Lowery matter for an evidentiary hearing, this court explained that "a forged check may have a monetary value equal to its written value. [Citation.]" (Lowery, supra, 8 Cal.App.5th at p. 541, review granted.) For instance, successfully cashing the check "would be overwhelming evidence that it was worth its written value." (Ibid.; cf. People v. Liu (2018) 21 Cal.App.5th 143, 149, petn. rev. filed Apr. 10, 2018, S248130) [where stolen access card information "was actually used to procure goods or services," the unauthorized charges "are proof of at least the minimum value of the access card information"].) This court further explained that a defendant could also introduce evidence showing the actual monetary value of the check was less than its written value. (Lowery, supra, at p. 541.) This court gave two examples of how a defendant could meet his or her burden of showing that a check with a face value of more than $950 was actually worth less than $950 for Proposition 47 purposes. First, "a check may be so ineptly forged that even the most credulous clerk would refuse to honor it." (Ibid.) Second, an expert witness could testify that "a forged check has a monetary value less than its written value based on a discounted price paid on the street." (Ibid.)
In another forgery case, the Second District held that "[i]n the context of forgery," the value of a forged check "corresponds to the stated value or face value of the check." (Salmorin, supra, 1 Cal.App.5th at p. 745.) But the Salmorin court also recognized that "[u]nder Proposition 47, the market value of any forged instrument . . . may or may not correspond to the face value of the instrument, depending on the existence of a secondary market or other evidence of value." (Ibid.)
None of the checks that the Salmorin defendant possessed were written for more than $950. (Salmorin, supra, 1 Cal.App.5th at p. 742.) The primary issue in Salmorin was whether the trial court could aggregate the value of the checks to determine whether the defendant was entitled to resentencing. (Id. at p. 745.)
The question in People v. Cuellar (2008) 165 Cal.App.4th 833 (Cuellar) was whether a forged check has any value. In Cuellar, a case decided prior to the enactment of Proposition 47, the defendant was convicted of grand theft from a person (§ 487, subd. (c)) after he gave a store clerk a " 'bogus check' " and then grabbed the check back from the clerk. (Cuellar, supra, at p. 836.) The defendant challenged his conviction on appeal, arguing that the check had no intrinsic value. The appellate court upheld the conviction, finding that the check "had slight intrinsic value by virtue of the paper it was printed on" and because it was "a negotiable instrument that, if legally drawn, would entitle its holder to payment on demand." (Id. at p. 839.)
We will assume that—as defendant contends—for purposes of a receiving stolen property conviction, the value of a stolen check is its fair market value. (See Romanowski, supra, 2 Cal.5th at p. 917; Lowry, supra, 8 Cal.App.5th at p. 541, review granted.) We proceed to consider whether defendant met his burden of proving eligibility for redesignation of his felony receiving stolen property conviction as a misdemeanor. (See Romanowski, supra, 2 Cal.5th at p. 916.)
Defendant does not assert that he presented any evidence from which the trial court could have found that the value of the stolen check was under $950. Rather, he asserts that, as in Lowery, this court should remand the matter for an evidentiary hearing at which he could present such evidence. We decline to do so. Unlike in Lowery, defendant already had a hearing at which he had an opportunity to present argument and evidence in support of his claim that the stolen check had a value of less than $950. At the time of the hearing in this case, it was established that defendant had the burden of proving that the value of the stolen check was under $950. (E.g., Romanowski, supra, 2 Cal.5th at p. 916; Johnson, supra, 1 Cal.App.5th at p. 970; Perkins, supra, 244 Cal.App.4th at pp. 136-137.) Moreover, at the time of the hearing, there was published authority indicating that fair market value was the proper standard for valuing theft or possession of stolen property for purposes of Proposition 47. (See Lowery, supra, 8 Cal.App.5th at p. 541, review granted; Romanowski, supra, 2 Cal.5th at p. 917.) Defendant's only attempt to meet his burden was his argument that the face amount of the check was not reflective of its value due to the condition of the check, in that "he was chewing on the check at the time it was recovered."
We note that the crime of receiving stolen property is complete when the defendant takes possession of property with knowledge it is stolen. (People v. Grant (2003) 113 Cal.App.4th 579, 595.) Defendant presumably received and possessed the stolen check prior to chewing it up. --------
On this record, we conclude that defendant had a hearing at which he had an opportunity to present argument and evidence in support of his claim that the stolen check had a value of less than $950, but that he failed to meet his burden of showing his felony receiving stolen property conviction was eligible to be redesignated as a misdemeanor. (See Romanowski, supra, 2 Cal.5th at p. 916.) Because defendant "did not meet his initial burden in the trial court," accordingly, he cannot meet his "burden on appeal of establishing trial court error." (Johnson, supra, 1 Cal.App.5th at p. 970.)
IV. DISPOSITION
The August 15, 2017 order is affirmed.
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.