Opinion
H042477
06-23-2017
THE PEOPLE, Plaintiff and Respondent, v. LEOPOLDO TREVINO III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Clara County Super. Ct. No. CC763997)
Defendant Leopoldo Trevino III appeals the order denying his Penal Code section 1170.18 petition to redesignate his felony conviction for grand theft of personal property to a misdemeanor. For the reasons stated here, we conclude that defendant did not satisfy his burden of showing eligibility for relief and will affirm the order without prejudice to later consideration of a properly supported petition.
I. TRIAL COURT PROCEEDINGS
According to a police report, defendant and his girlfriend rented a converted garage from homeowners in San Jose. Defendant and his girlfriend lived in the garage, but had access to the main house. The homeowners noticed several items missing from the master bedroom, an extra bedroom, and a tool shed. The homeowners reported the missing property to the Sheriff's Department, including pieces of jewelry cumulatively valued at over $4,000, a laptop computer, a locked money box containing $700 cash, and a cordless drill. After questioning defendant and his girlfriend, a deputy sheriff found a blank check purportedly signed by one of the homeowners in defendant's girlfriend's car during what was apparently a consent search. The signature on the blank check did not match the owner's signature. Officers arrested defendant and his girlfriend, and found some of the missing jewelry in the converted garage during a search incident to arrest.
Defendant was charged with felony grand theft of personal property (Pen. Code, §§ 484, 487, subd. (a)) and felony possession of a blank check. (Pen. Code, § 475, subd. (b); unspecified statutory references are to this code.) Defendant admitted both charges. The trial court initially suspended imposition of sentence, placed defendant on probation, and ordered him to pay over $6,000 in victim restitution. After defendant violated probation, the court revoked probation and sentenced defendant to the mitigated term of 16 months on each count, to be served concurrently.
Defendant filed a section 1170.18 petition to redesignate his felony convictions as misdemeanors. Defendant did not explain why he was eligible for relief related to the grand theft conviction; the petition merely cited section 487, subdivision (a). The prosecution opposed the petition as to the grand theft conviction, based on the value of the stolen property. By written order, the trial court granted defendant's petition as to the blank check conviction, and denied the petition as to the grand theft conviction because "the value of the stolen property exceeded $950."
II. DISCUSSION
Defendant argues that the trial court erred because the prosecution bore the burden of disproving his eligibility for relief under section 1170.18, and he contends that the prosecution was limited to the record of conviction to meet that burden. After the filing of respondent's brief, the Supreme Court decided People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), and defendant elected not to file a reply brief. As we will explain, defendant's arguments are foreclosed by that case.
A. PEOPLE V. ROMANOWSKI
Romanowski pleaded no contest to felony theft of access card information (§ 484e, subd. (d)). (Romanowski, supra, 2 Cal.5th at p. 906.) He later petitioned for resentencing under section 1170.18, arguing that his felony theft conviction would now be punishable as petty theft because the value of the property taken did not exceed $950. (Romanowski, at p. 906, citing § 490.2, subd. (a) ["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 punished as a misdemeanor" unless a defendant has certain prior convictions].) The Court of Appeal reversed the trial court's denial of defendant's petition, determining that a person convicted of stealing access card information when the access card's value is under $950 is eligible for section 1170.18 relief. (Romanowski, at p. 906.) The Supreme Court affirmed, concluding that section 1170.18 relief is available to individuals with section 484e convictions where the value of the stolen access card information did not exceed $950. The Supreme Court determined that " 'the reasonable and fair market value shall be the test' for applying section 490.2's $950 threshold." (Romanowski, at p. 917.)
The Romanowski court also determined that the petitioning defendant bears the burden of proving eligibility for section 1170.18 relief. (Romanowski, supra, 2 Cal.5th at p. 916, citing Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."].) The court noted that in some cases, the uncontested information in the petition and record of conviction may be enough to establish section 1170.18 eligibility. "But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction." In those cases, "an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' " (Romanowski, at p. 916.)
B. DEFENDANT'S ARGUMENTS
Defendant contends that we should not place the burden of establishing redesignation eligibility on the petitioning defendant. Citing Apprendi v. New Jersey (2000) 530 U.S. 466 and Dillon v. United States (2010) 560 U.S. 817, defendant argues that placing the burden on him violates his federal constitutional rights. Defendant also argues that requiring him to produce evidence of eligibility creates an obstacle that frustrates the voters' intent of rehabilitating criminals. But Romanowski specifically placed the burden to demonstrate eligibility for section 1170.18 relief on the petitioning defendant, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
Defendant argues that the voters intended that the record of conviction alone should determine eligibility for section 1170.18 relief. But that contention was implicitly rejected by the observation in Romanowski that "eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction." (Romanowski, supra, 2 Cal.5th at p. 916.) To the extent the foregoing is an authorization to look beyond the record of conviction, we are bound by that decision. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) We are also persuaded by the reasoning of several intermediate appellate decisions concluding that trial courts are not bound by the record of conviction when determining section 1170.18 eligibility. (E.g., People v. Johnson (2016) 1 Cal.App.5th 953, 967 [finding that electorate did not intend to limit resentencing court's review to the record of conviction because "Proposition 47 created misdemeanors either that did not exist previously ... or that were felony offenses with different showings required"]; accord People v. Perkins (2016) 244 Cal.App.4th 129, 140, fn. 5.)
Defendant's petition stated he was entitled to redesignation of his grand theft conviction, but provided no evidence to demonstrate that the value of the property he took was less than $950. (§§ 1170.18, subd. (f), 490.2, subd. (a).) Because defendant did not support his petition with evidence demonstrating his eligibility for section 1170.18 relief, he did not satisfy his burden and the trial court did not err in denying the petition. But our opinion will not preclude defendant from obtaining relief if he is able to demonstrate eligibility for relief in a new, properly supported petition.
III. DISPOSITION
The order denying defendant's petition under Penal Code section 1170.18 is affirmed without prejudice to later consideration of a properly supported petition.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Rushing, P. J. /s/_________
Premo, J.