Opinion
F071215
02-24-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND RAY ROBISON, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan Marrs and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF142506A) OPINION APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan Marrs and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Raymond Ray Robison was charged by complaint with six counts arising out of offenses he committed on June 8, 2012, against Guimarra Vineyards. On July 23, 2012, defendant pled no contest to the allegations that he committed felony grand theft (§ 487, subd. (a)) (count 1), felony receipt of stolen property (§ 496, subd. (a)) (count 2), two counts of petty theft with a qualifying prior conviction (§ 666) (counts 3 & 4), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 5), and misdemeanor resistance of an officer (§ 148, subd. (a)(1)) (count 6). Defendant also admitted three prior serious felony convictions within the meaning of the three strikes law and seven prior prison term enhancements.
Defendant requests we take judicial notice of the record on appeal in our prior nonpublished opinion (People v. Robison (Apr. 10, 2014, F067525)). (Evid. Code, §§ 452, subd. (d)(1), 459; Cal. Rules of Court, rule 8.252(a)(2); People v. McCarthy (2016) 244 Cal.App.4th 1096, 1100, fn. 2.) The People object on the ground the record is not relevant, as demonstrated by defendant's failure to cite to any portion of it in his argument. We take judicial notice of those facts we rely on herein, taken from our nonpublished decision and the record. Defendant's request is otherwise denied.
Further statutory references are to the Penal Code unless otherwise noted.
On August 21, 2012, the trial court granted defendant's request to strike the prior serious felony convictions and sentenced him to the upper term of three years and to seven consecutive one-year terms for each of the prior prison term enhancements for a total term of 10 years. Terms on the remaining counts were stayed. The court stayed execution of its sentence and placed defendant on probation upon various terms and conditions.
On March 13, 2013, defendant was arraigned on allegations that he violated the terms and conditions of his probation. At the conclusion of a contested hearing, the trial court found true the allegations that defendant violated the terms of his probation and revoked probation. The court lifted the stay on defendant's sentence and ordered defendant's commitment to prison for 10 years.
On December 4, 2014, following the enactment of Proposition 47, discussed post, defendant sought to be resentenced on counts 1 through 5. (§ 1170.18, subd. (a).) On January 21, 2015, the trial court granted his petition as to count 5, but denied it as to counts 1 through 4 on the ground that he was ineligible for resentencing because the value of the items taken from Guimarra Vineyards exceeded the allowable limit ($950). (§§ 1170.18, subd. (b), 490.2, subd. (a).) Defendant was represented by counsel during the hearing, but was not personally present.
This appeal concerns defendant's convictions for grand theft (count 1) and receiving stolen property (count 2). Defendant challenges the adequacy of the hearing he received on January 21, 2015, as to the value of the items stolen. During the hearing, the trial court appears to have accepted the prosecutor's unsupported representation that the items of property stolen were valued at $1,100, and defendant seeks remand of the matter to the superior court for a new hearing where both parties may address the value of the stolen items.
In a separate but concurrently issued decision, we resolve a later filed appeal brought by defendant, which challenges the trial court's subsequent order denying his motion to dismiss three of his prior prison term enhancements after they were reclassified from felony convictions to misdemeanors. (People v. Robison (F071955, Feb. 24, 2017) [nonpub. opn.].)
In response, the People contend that defendant did not have a right to be personally present at the hearing, at which he was represented by counsel; the trial court made a factual finding the value of the items exceeded $950; and any conflict is remedied by defendant's guilty plea to the offenses.
We do not interpret defendant's brief as raising a claim that his rights were violated by virtue of his absence from the hearing on his petition. We note that defendant's personal presence was waived by counsel and we discern no valid basis for a claim that under the circumstances, he had a right to be personally present. (People v. Fedalizo (2016) 246 Cal.App.4th 98, 109-110.)
We affirm the trial court's denial of defendant's petition for relief under Proposition 47.
DISCUSSION
I. Background
"'On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act [(the Act)] ....' [Citation.] '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).' [Citation.]
"Proposition 47 also added section 1170.18, concerning persons currently serving a sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It permits such a person to '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' specified sections that 'have been amended or added by this act.' (§ 1170.18, subd. (a).) If the trial court finds that the person meets the criteria of subdivision (a), it must recall the sentence and resentence the person 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).)" (People v. Morales (2016) 63 Cal.4th 399, 404; accord, People v. Sauceda (2016) 3 Cal.App.5th 635, 640, review granted Nov. 30, 2016, S237975 (Sauceda).)
Section 1170.18, subdivisions (a) and (j) were amended effective January 1, 2017, to (1) change the terms of statutory application from "[a] person currently serving a sentence for a conviction" to "[a] person who on November 5, 2014, was serving a sentence for a conviction," and (2) extend the petition or application filing date from "within three years after the effective date of the act that added this section or at a later date upon a showing of good cause" to "on or before November 4, 2022, or at a later date upon showing of good cause." (Legis. Counsel's Dig., Assem. Bill No. 2765, approved by Governor, Sept. 28, 2016 (2015-2016 Reg. Sess.) pp. 1-3.)
II. Analysis
A. Grand Theft Conviction
Section 1170.18, as enacted by Proposition 47, provides:
"(a) 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 Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.
"(b) 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 Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have 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." (Italics added.)
Although the issue had yet to be decided at the time defendant's petition was considered by the trial court, Courts of Appeal have subsequently determined that the defendant bears the initial burden of demonstrating eligibility for relief under Proposition 47, including showing the value of the property stolen was $950 or less in theft cases. (People v. Sweeney (2016) 4 Cal.App.5th 295, 302 (Sweeney); People v. Johnson (2016) 1 Cal.App.5th 953, 962 (Johnson); People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins); People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow); accord, Sauceda, supra, 3 Cal.App.5th at p. 647, fn. 3.)
Under the terms of the statute, defendant is eligible to petition for relief under Proposition 47 if he "would have been guilty of a misdemeanor" had Proposition 47 been in effect at the time of his offense. (§ 1170.18, subd. (a).) In addition, section 490.2, subdivision (a), added by Proposition 47, provides, "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
Prior to January 1, 2011, grand theft was defined by section 487, subsection (a), as money, labor, or real or personal property exceeding $400 in value, and were defendant serving a sentence for a grand theft conviction incurred under that version of the statute, his conviction would have fallen within the purview of Proposition 47. However, by the time of defendant's offense, section 487, subdivision (a), had been amended to define grand theft as theft of money, labor, or real or personal property exceeding $950 in value.
Defendant fails to address his threshold eligibility for relief under Proposition 47 with respect to his grand theft conviction, focusing instead on disputing the trial court's subsequent determination, made during his Proposition 47 petition hearing, that the value of the property stolen exceeded $950. In contrast to defendant's conviction for receiving stolen property, discussed next, defendant's grand theft conviction under section 487, subdivision (a), was not one reclassified as a misdemeanor under Proposition 47, as it already required, as an element, a theft of property exceeding $950. (See Perkins, supra, 244 Cal.App.4th at p. 141 [the defendant's convictions for grand theft of firearms under § 487, subd. (d), reclassified as misdemeanors under Prop. 47 where value does not exceed $950].)
Because defendant fails to satisfy the criteria set forth in section 1170.18, subdivision (a), he is ineligible for relief from his felony grand theft conviction under Proposition 47. We therefore affirm the trial court's denial of defendant's petition as to count 1. (§ 1170.18, subd. (a); 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."].)
B. Receiving Stolen Property
Under the terms of the statute, defendant's felony conviction for receiving stolen property is eligible for Proposition 47 relief so long as the value of the property received does not exceed $950. (§§ 496, subd. (a), 1170.18, subd. (a); Johnson, supra, 1 Cal.App.5th at p. 957; Perkins, supra, 244 Cal.App.4th at p. 136.) The People do not dispute that point, but they argue that because defendant was charged with felony receipt of stolen property, the value of the items at issue, by implication, exceeded $950. We disagree.
At the time of the offense, section 496, former subdivision (a), provided: "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 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." (Italics added.) Thus, under the statute, a prosecutor could have charged a defendant with a misdemeanor rather than a felony if the value of the items did not exceed $950, but was not required to do so. (§ 496, former subd. (a); Perkins, supra, 244 Cal.App.4th at p. 136.) As such, a decision to charge a defendant with a felony may have been based on receipt of stolen items exceeding $950, but it also may have been based on a determination that although the value did not exceed $950, it was not in the interests of justice to charge the offense as a misdemeanor. (§ 496, former subd. (a); Perkins, supra, at p. 136.)
Our rejection of the People's reasoning on this point does not end the matter and entitle defendant to amend his petition for relief on the issue of value, however. Defendant pled no contest to grand theft of property exceeding $950, and we requested the parties file supplemental briefs addressing (1) whether defendant's convictions for grand theft and for receiving stolen property were based on the theft and the receipt of the same items of property and (2) if so, whether defendant's guilty plea to grand theft of property exceeding $950 also establishes receipt of stolen property in an amount exceeding $950.
A defendant bears the initial burden of demonstrating the property in question did not exceed $950, as we have stated. Given the initially unsettled state of the law, Courts of Appeal faced with similar challenges to valuation have affirmed the denial of the petition without prejudice to renewal in the trial court, supported by information or evidence of property value. (Sweeney, supra, 4 Cal.App.5th at pp. 302-303; Johnson, supra, 1 Cal.App.5th at pp. 970-971; Perkins, supra, 244 Cal.App.4th at pp. 139-140; Sherow, supra, 239 Cal.App.4th at pp. 880-881.) --------
There is no dispute between the parties that the property underlying both convictions is the same and, in his supplemental brief, defendant "acknowledges that his plea technically included an admission of the element that the value exceeded $950." He reiterates, however, that he is merely seeking the opportunity to present evidence establishing the value of the property underlying his conviction for receiving stolen property is less than $950. In pleading no contest to the charged offenses, defendant admitted every element of each charged offense, which necessarily included an admission that, as to his grand theft conviction, the property stolen from Giumarra Vineyards exceeded $950. (In re Chavez (2003) 30 Cal.4th 643, 649; People v. Zuniga (2014) 225 Cal.App.4th 1178, 1186-1187.) Defendant cites no authority, nor do we know of any, for the proposition that his admission the property stolen exceeded $950 is not binding as to both offenses, given that the property at issue in both offenses is the same.
Accordingly, we affirm the trial court's order denying defendant's petition as to his conviction for receiving stolen property, although we do so on the basis that the property underlying both offenses is the same and defendant admitted, as an element of the grand theft offense, that the property exceeded $950. (Perkins, supra, 244 Cal.App.4th at p. 139.)
DISPOSITION
The trial court's order denying defendant's petition for relief under Proposition 47 as to counts 1 and 2 is affirmed.
/s/_________
KANE, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.