P. v. Frias CA6
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPHINE ROSEMARY FRIAS,
Defendant and Appellant.
H044757
(Santa Clara County
Super. Ct. No. CC787022)
Background
On December 11, 2007, defendant pleaded no contest to receiving stolen property, including a laptop computer that had been stolen from the victim’s car (Pen. Code, § 496, subd. (a)), and giving a false name to a peace officer (§ 148.9, a misdemeanor). In exchange for her plea, two other counts of the information (possession of controlled substance paraphernalia and possession of burglar tools) were dismissed. In January 2008 defendant was sentenced to 60 days in jail. After she violated probation in July 2008, the court imposed a seven-month jail term.
On April 7, 2017, defendant filed a petition under section 1170.18, subdivision (f), to redesignate her felony conviction to a misdemeanor, in accordance with Proposition 47. Attached to the petition was a defense investigator’s report of an interview with “Jeanne Pamela Kato” on March 28, 2017. According to the report, “Pamela described her laptop as a ‘portable’ type. The laptop was a Latitude model, which was made by Dell Computers. It was silver in color, supposed to be no bigger than a 12[-]inch notebook. She mentioned it was the ‘top of the line’ type of laptop back in 2007. The laptop was using a Windows 7 operating system. Pamela gave me an estimate of $700.00 to $1,000.00 in its price if it was [sic] purchased, used, on the date of the incident.”
The district attorney opposed the petition, claiming insufficient evidence that the value was under $950. “Also, victim gave price if used.” The superior court found that defendant had “not set forth a prima facie case of eligibility for the requested relief because he [sic] has not alleged any facts to establish the value of the item(s) in question.” From that order on May 18, 2017, defendant brought this timely appeal.
Discussion
Under Proposition 47, passed by the voters in November 2014, receiving stolen property was reclassified as a misdemeanor if the value of the property stolen did not exceed $950. (§§ 496, subd. (a), 490.2, subd. (a).) The initiative also created a resentencing procedure allowing an offender to petition to have his or her felony conviction designated as a misdemeanor if that felony would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subd. (f).)
“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.) It was defendant’s burden to establish the facts on which her eligibility was based. (People v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski); People v. Sherow (2015) 239 Cal.App.4th 875, 880.) “The defendant must attach information or evidence necessary to enable the court to determine eligibility.” (People v. Perkins (2016) 244 Cal.App.4th 129, 137.) She also bears the burden of affirmatively demonstrating error on appeal. (People v. Cardenas (2015) 239 Cal.App.4th 220, 227.)
In this case, the trial court determined that defendant had failed to meet her burden to show that the value of the computer was $950 or less. “[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ [Citation.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279, quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; accord, In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Here defendant failed to meet either burden. She did not submit to the trial court an affidavit or declaration about the value of the stolen property; the sole evidence she offered in support of her petition was the hearsay report of the defense investigator. Even if the court accepted the victim’s estimate of the value of the computer as reported by the defense investigator, only a range was suggested for this “top of the line” model that was as high as $1,000. Value is measured by the “ ‘reasonable and fair market value’ ” of the property, or how much it would sell for given a willing buyer and willing seller. (Romanowski, supra, 2 Cal.5th at p. 915; see also People v. Pena (1977) 68 Cal.App.3d 100, 104 [“When you have a willing buyer and a willing seller, neither of whom is forced to act, the price they agree upon is the highest price obtainable for the article in the open market”].) No evidence was submitted on the value of the identification card, which may have had an “illegal market value.” (Romanowski, supra, at p. 916.)
It was for the trial court, not this court, to weigh the evidence and determine the fair market value of the stolen property. Accordingly, defendant’s effort to re-argue the valuation issue is misplaced. Because we cannot say that “the evidence compelled the trial court to find in [defendant’s] favor” on the issue of the value of the property stolen from the victim’s car, reversal is not required. (Roesch v. De Mota, supra, 24 Cal.2d at p. 571
Disposition
The order denying defendant’s section 1170.18 petition is affirmed.
_________________________________
ELIA, J.
WE CONCUR:
_______________________________
GREENWOOD, P. J.
_______________________________
MIHARA, J.
Description | On December 11, 2007, defendant pleaded no contest to receiving stolen property, including a laptop computer that had been stolen from the victim’s car (Pen. Code, § 496, subd. (a)), and giving a false name to a peace officer (§ 148.9, a misdemeanor). In exchange for her plea, two other counts of the information (possession of controlled substance paraphernalia and possession of burglar tools) were dismissed. In January 2008 defendant was sentenced to 60 days in jail. After she violated probation in July 2008, the court imposed a seven-month jail term. |
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