Filed 10/18/17 P. v. Flores CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Karl T. Terp, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.18 (Proposition 47).[1] We find no error and so affirm.

Facts and Procedure

On June 26, 2013, a stolen silver Lexus was found across the street from defendant’s residence. The owner of the Lexus reported that three tires were missing from the car, including a full size spare and two tires with distinctive chrome Lexus rims. Two other tires with rims were placed on the Lexus in place of the stolen tires and rims. In the back of defendant’s Chevy SUV, officers found several tires and rims, including the three tires and two rims stolen from the Lexus, as well as two tires and rims that matched the ones placed on the Lexus in place of the stolen ones. The police report listed the stolen property as three Lexus tires with Lexus rims.

On July 30, 2013, the People filed a felony complaint charging defendant with receiving stolen property, specifically “rims and tires.” (§ 496, subd. (a).) The People alleged defendant had four prior prison term felonies. (§ 667.5, subd. (b).)

On September 9, 2013, defendant pled guilty to receiving stolen property and admitted the four priors. In doing so, he answered, “Yes,” to the court’s question whether he was “in possession of rims and tires you knew were stolen.” The court then found a factual basis for the plea. The minute order, but not the reporters’ transcript, states: “Court finds factual basis for the plea is based on Complaint.” That same day, the court sentenced defendant as agreed to two years in state prison, to be served concurrently with an eight-year term in another case for possessing methamphetamine for sale (Health & Saf. Code, § 11378), with priors.

On April 20, 2015, defendant filed a petition for resentencing, alleging the value of the property he possessed did not exceed $950. On April 22, 2015, the People filed its response, stating defendant was not entitled to resentencing because “Over $950. Tires $400. + Lexus Rims + Damage $800.00.” The record contains a minute order for August 31, 2015, showing the court denied the petition because, “Loss exceeds $950. If Defendant has evidence that loss is under $950, matter can be added to calendar for hearing.”

On February 9, 2016, defendant submitted to the court “correspondence . . . as to value of the loss.” The court appointed a public defender. The correspondence included a handwritten letter from defendant to the court explaining that he had researched the value of the tires and rims. Attached to the letter are the police report, a property report, and photos of tires and rims that appear to be from the property report. Also attached are 19 pages of printouts of tire and rims, with prices, that appear to come from the following seven websites: goodyear.com, firestonetire.com, oewheellsllc.com, tirerack.com, originalwheels.com, carid.com, and partsgeek.com. The specific prices to which defendant refers in his opening brief are as follows: $408 for a “Set of 4 Lexus RX 330/RX 350 Style Replica Wheels”; and between $89 and $127.99 each for new all-weather tires that fit a 2006 Lexus ES330.

In response to the new documentation, the court held a hearing on April 15, 2016. Defendant was present, represented by counsel, but he presented his own argument. The court began the hearing by asking defendant: “Mr. Flores, what do you want to tell me?” Defendant proceeded to argue the factual basis for the plea. Specifically, he stated one of the three tires and rims belonged to his own SUV and were not stolen, and so he possessed only two tires and two rims. The People then argued that both the property report and the police report specify that a total of three Lexus rims and tires, including a spare tire, were stolen from the Lexus and found in defendant’s possession. Defendant continued to argue that one of the rims and tires was his. Neither party nor the court specifically referred to the internet printouts or to any specific values for the tires and rims, other than the court’s comment: “And we know Lexus rims and tires would be over 950.” At one point defendant referred to having “sent several documents,” but did not discuss their contents or their role in establishing the value of the tires and rims. After additional discussion between the court, defendant, and counsel, during which the court pointed out that defendant “lied throughout” the police investigation, the court asked defendant if there was “[a]nything else you want to tell me?” Defendant replied, “No.” The court denied the petition.

This appeal followed.

Discussion

In November 2014, California voters enacted Proposition 47, which created a new resentencing provision: section 1170.18. The statute provides that those who have already served their sentence may petition for reduction to a misdemeanor. (§ 1170.18, subds. (f)-(h).) Under section 1170.18, subdivision (f): “A person who has completed his or her sentence for a conviction . . . 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.”

Proposition 47 reduced the offense of receiving stolen property from a felony to a misdemeanor where the value of the property does not exceed $950. (§ 496, subd. (a).) Such an offense is now a misdemeanor.

Defendant has the burden of proof of establishing that the stolen property’s value does not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 878, 880.) We review the trial court’s legal conclusions de novo and its findings of fact for substantial evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136.) “The trial court’s decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutory criteria for relief,” including whether the value of the property involved is less than $950. (People v. Contreras (2015) 237 Cal.App.4th 868, 892.)

The parties agree the fair market value test applies to determine the value of stolen property under the receiving stolen property statutes as it does under the theft statutes. “The means of valuing stolen property is settled under the theft statutes.” (People v. Swanson (1983) 142 Cal.App.3d 104, 107.) Section 484, subdivision (a), which defines the crime of theft, directs “the reasonable and fair market value shall be the test” for determining whether a theft offense is a misdemeanor or a felony. (People v. Pena (1977) 68 Cal.App.3d 100, 103-104.) “[T]he ‘fair market price’ is the highest price obtainable from a willing buyer by a willing seller, neither of whom is forced to act. It is not the highest price in the market but the highest price a willing buyer and a willing seller will arrive at.” (Id. at p. 104.)

Defendant argues the court’s order denying his petition for resentencing must be reversed because the court incorrectly calculated the value of the stolen property in three respects. First, defendant contends the court’s valuation manifestly deviated from the fair-market-value standard by including “damage” to the wheels and rims as a measure of value. Defendant states in his opening brief that that the court’s order “included ‘tires’, ‘rims’, and ‘damage’ as part of the $1,200 value it assigned to the stolen property,” and cites to page 9 of the clerk’s transcript for this information. We have viewed that page and find no court order, only the People’s response to the petition, filed July 7, 2015. We have searched through the record and have been unable to find any mention by the court that it considered damage to the tires and rims in its determination that their value exceeded $950. For this reason, we cannot address defendant’s argument that the court improperly considered damage to the property in its determination that value of the stolen property exceeded $950.

Defendant’s second contention is that the court erred by deviating from the established standard that a retail listing establishes fair market value when no contrary evidence is presented, citing to People v. Pena, supra, 68 Cal.App.3d at page 103. True, the People did not submit any contrary evidence as to the value of the tires and rims. However, as the finder of fact, the court was not required to accept at face value defendant’s assertion that the listings he presented were for the fair market value of the items he was convicted of receiving; it appears to us that the court did not. The court was very clear at the hearing that it considered defendant to have been untruthful throughout the proceedings for this crime.[2] Given this, and the generic nature of the internet printouts of the tires and rims that defendant presented, we do not second-guess the trial court’s failure to credit the accuracy of defendant’s assertion that the items were worth $950 or less at the time they were stolen. First, the opening brief refers to evidence that a set of four silver rims could be purchased in 2016 for $408, or $204 for a set of two. However, for instance, the circled quote in the augmented clerk’s transcript is for a set of “Lexus RX 330/RX 350 Style Replica Wheels.” The court could reasonably have believed that defendant had failed to establish the fair market value of the genuine Lexus rims that defendant had possessed, in that the value evidence he presented appeared to be for replica Lexus rims rather than the genuine Lexus rims he was convicted of possessing. Second, the internet printout also contains estimates for “2006 Lexus ES 18-inch tires” that range in price from “$72.00-$1,163.00 (ea).” Defendant did not explain or establish why the court should believe the pages of the printout that show Lexus tires could be obtained for $89 to $127.99 rather than the pages that show they can cost up to $1,163. The record shows that the court did not find defendant to be honest and, based on our review of the evidence he sent to the court that prompted the hearing, the court’s decision not to credit the evidence appears entirely reasonable. Defendant did not carry his burden to establish that the tires and rims had a value of $950 or less.

Defendant’s third contention is that, even if the court had discretion to include damage in the value of the stolen items received, there was no evidence that he himself damaged the rims. As discussed ante, we find no indication in the record that the court considered damage when making its ruling, and so we do not address this argument.

Disposition

The court’s ruling denying the petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.