Opinion
F071759
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. LUCIANA VALDOVINOS, Defendant and Appellant.
Sandra Gillies, 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, Catherine Chatman and Raymond L. Brosterhous II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. Nos. F06801164, F06401224 & F06401229)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Denise L. Whitehead, Judge. Sandra Gillies, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This case presents the following question: When a defendant petitions to have a prior felony conviction redesignated as a misdemeanor (Pen. Code, § 1170.18, subd. (f)), who bears the burden of proof as to whether the crime in question "would have been ... a misdemeanor" (ibid.) if Proposition 47 had been in effect at the time? We conclude the petitioning defendant bears the burden of proof on that issue. (See Evid. Code, § 500.)
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
In Fresno County Superior Court case No. F06401229, defendant was charged with committing "the crime of Second DEGREE BURGLARY, in violation of PENAL CODE SECTION 459/460(b), a felony" on or about August 15, 2006.
All future lower court case numbers refer to Fresno County Superior Court cases.
The complaint initially charged defendant with "FIRST DEGREE RESIDENTIAL BURGLARY, in violation of PENAL CODE SECTION 459/460(a)," but it was amended by interlineation.
The complaint also charged one count of receiving stolen property. (§ 496, subd. (a).)
In case No. F06401224, defendant was charged with committing "the crime Second DEGREE BURGLARY, in violation of PENAL CODE SECTION 459/460(b)" on or about August 24, 2006.
The complaint initially charged defendant with "FIRST DEGREE RESIDENTIAL BURGLARY, in violation of PENAL CODE SCETION 459/460(a)," but it was amended by interlineation.
The complaint also charged one count of misdemeanor vandalism. (§ 594, subd. (a).)
In case No. F06801164, defendant was charged with committing "the crime of SECOND DEGREE BURGLARY - STRUCTURE, in violation of PENAL CODE SECTION 459/460(b), a felony" on or about August 26, 2006.
On November 9, 2006, defendant pled no contest to second degree burglary in case No. F06801164 as part of a plea bargain.
On November 30, 2006, defendant pled no contest to second degree burglary in case No. F06401229, and no contest to second degree burglary in case No. F06401224.
A joint sentencing hearing was held on all three cases where the court placed defendant on two years of probation with no prison term.
On December 14, 2007, defendant admitted to violating probation and was sentenced to one year four months in prison.
On February 27, 2015, defendant petitioned the court to redesignate her three burglary convictions as misdemeanors under section 1170.18, subdivision (f).
Defendant also requested redesignation of other felonies, but those are not at issue in this appeal.
At the hearing on the petition, the following discussion occurred:
"THE COURT: All three of these, according to the abstract of judgment, are first degree residential burglaries. The abstract says second, but was it a residential burglary or commercial burglary?
"[Prosecutor]: Your Honor, it appears that the cases ending 229 and 224 were residential burglaries. Case ending 164, according to our notes, was a locked garage. It doesn't say whether it's an attached. It may be residential burglary. Regardless, it is not a commercial burglary.
"THE COURT: In docket 1164, the complaint alleged entry into a garage with the intent to commit larceny or any felony 459/460(b), but it was entry into a garage, so that would not be eligible. And then in docket ending 1224, that was a 459/460(b). People's position on that one?
"[Prosecutor]: In 1224, we show it was a victim's house. It might have been unoccupied at that time, but either way, it does not appear to be a commercial matter, or a shoplift.
"THE COURT: And Mr. Feinberg [defense counsel]?
"[Defense counsel]: Your Honor, I believe the court is limited to the record of conviction, and I couldn't see anything there.
"THE COURT: Are you going to make that argument again when the court's determined that you have the burden to prove eligibility, and since you have the burden, do you really want to argue that the court can't go outside the record? It's against your client.
"[Defense counsel]: Well, Your Honor, if the court were to adopt it, it hurts some clients and help[s] some clients. I don't have the ability to simply engage in horse-trading and to say I'm going to argue something, and I'm going to take the benefit of certain clients over the benefit of other clients, so -
"THE COURT: Are you requesting an evidentiary hearing?
"[Defense counsel]: I am not requesting an evidentiary hearing.
"THE COURT: Then for the reasons set forth in this court's order in People versus Yang, docket F12905793 and F13906567, and People versus Jorgenson, for the reasons set forth [in] those two cases, the application in this matter is denied, and copies of both Yang and Jorgenson will be made part of the record in this case. Application denied." (Italics added.)
The orders in People v. Yang and People v. Jorgenson were made by Fresno County Superior Court in other cases. They held that a petitioning defendant bears the burden of proving eligibility under Proposition 47. --------
Defendant appealed.
DISCUSSION
Proposition 47
"Proposition 47, passed by the voters in November 2014, reclassified certain nonserious, nonviolent offenses from felonies to misdemeanors. Proposition 47 also enacted a statute (Pen. Code, § 1170.18) that permits offenders to petition the superior court to redesignate their felony convictions and reduce their sentences based on the new misdemeanor classification." (Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th 1209, 1216, fn. omitted.)
"A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
One of the offenses created by Proposition 47 is section 459.5. Section 459.5 defines the crime of shoplifting "as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($ 950.)" (§ 459.5, subd. (a).) If a defendant commits shoplifting, they must be charged with shoplifting and may not be charged with burglary or theft of the same property. (§ 459.5, subd. (b).) Shoplifting is a misdemeanor, unless the defendant has certain prior convictions. (§ 459.5, subd. (a).)
Here, defendant's theory is apparently that her burglary convictions would have constituted shoplifting had Proposition 47 been in effect at the time.
Issue Presented
The primary issue raised by the parties centers around whether the defendant or prosecution bore the burden of proof on the petition for redesignation. For the reasons explained below, we conclude a defendant petitioning for reclassification of a felony as a misdemeanor under section 1170.18, subdivision (f) bears the burden of proving the crime "would have been ... a misdemeanor under" Proposition 47. (§ 1170.18, subd. (f).)
Analysis
"Except as otherwise provided by law, a party has the burden of proof as to each fact the existence of nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) Here, a fact that is essential to defendant's claim for relief under section 1170.18, subdivision (f) is that her burglaries "would have been ... misdemeanor[s] under" Proposition 47. (§ 1170.18, subd. (f).) Consequently, under Evidence Code section 500, she bore the burden of proving that fact.
Defendant urges us not to employ the general rule of Evidence Code section 500. She concedes that "[i]t makes sense as a matter of policy to place the burden of showing eligibility on the petitioner when the result will be a change in the petitioner's sentence and the potential of earlier release from prison." But she contends that because her petition seeks redesignation of a felony after she completed her sentence, "the policy reason for putting the burden on petitioner are diminished."
As a preliminary matter, we note that this argument presumes that the phrase "[e]xcept as otherwise provided by law" (Evid. Code, § 500) essentially empowers courts to create exceptions to the statute based on their own preferences. We are hesitant to adopt such a reading.
Even if courts are so empowered (see Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661), we decline to exercise that power here. It is true that a petition to reduce a sentence currently being served is different from a petition to redesignate a felony after the sentence has been completely served. If a court erroneously reduces a sentence being served, a prisoner will be improperly released early. The same cannot be said of an erroneously granted petition to redesignate. But redesignation of felonies implicates other important considerations. As defendant concedes, there is a "substantial interest in the status of the offense as a felony and thus as a potential enhancement." We cannot say that those interests are so insignificant as to warrant an exception from the general rule in Evidence Code section 500.
We also note that after briefing was completed in this case, the Second District held that "[u]nder Proposition 47, the applicant seeking to reduce a burglary conviction to a shoplifting one bears the burden of proving the value of the property taken or intended to be taken." (People v. Pak (2016) 3 Cal.App.5th 1111, 1114; cf. People v. Johnston (2016) 247 Cal.App.4th 252, 258, review granted July 13, 2016, S235041.)
Consequently, we agree with the trial court that defendant bore the burden of showing her crimes were eligible for redesignation under Proposition 47. Because defendant did not present the court with sufficient evidence that her burglary convictions would have constituted misdemeanors under Proposition 47, the court properly denied the petition as to the burglaries.
Record of Conviction
Defendant also contends the court erred by "going outside" the record of conviction by "relying" on information from the prosecutor's notes. It is true that the prosecutor made certain representations to the court, including that "[c]ase ending 164, according to our notes, was a locked garage." But it does not appear that the court relied on these assertions in making its ruling. Instead, the lower court's ruling was expressly predicated on "the reasons set forth in this court's order in People v. Yang [docket nos.] and People v. Jorgenson." (Italics added.) Arguably, this suggests the court based its decision on the burden of proof issue, not the prosecutor's factual assertions.
Regardless, we review the court's order, not its reasoning. Because the petition was properly denied based on the burden of proof issue, it is inconsequential that the prosecutor made assertions outside the record of conviction.
DISPOSITION
The order is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.