Filed 8/2/17 P v. Grizzell CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JASON GRIZZELL,

Defendant and Appellant.

F071819

(Super. Ct. No. SC080220B)


OPINION

APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis, Judge.
Kurt David Hermansen, 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 P. Marrs, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Jason Grizzell appeals from the trial court order denying his application pursuant to Proposition 47 and Penal Code section 1170.18 to reduce his prior conviction for grand theft of a firearm (Pen. Code, § 487, subd. (d)) from a felony to a misdemeanor. The issues at the hearing centered around who had the burden of proof, whether the “conviction” was for one firearm or four firearms, and whether the value of the firearm(s) exceeded $950, thereby making defendant ineligible for reduction to a misdemeanor. It is unclear from the record whether the trial court had the entire file concerning the grand theft conviction or portions of it, or what it reviewed. In addition, the trial court made no factual findings concerning the value of the stolen firearm(s).
At defendant’s request, we ordered augmentation of the appellate record to include the record from the theft case. A review of that record tends to support defendant’s claim he was convicted of stealing a single firearm whose value was less than $950. We thus conclude the uncertain record of the proceedings and the absence of factual findings by the trial court necessitate a reversal and remand for the trial court to reconsider defendant’s application and to make the requisite findings.
PROCEEDINGS
On September 8, 2014, defendant was convicted of several felony charges after a jury trial in a related appeal (F070390).
On April 16, 2015, defendant filed an application to have his conviction in 2000 for grand theft of a firearm reduced from a felony to a misdemeanor. On April 21, 2015, the People filed an objection, checking boxes on the form indicating defendant’s offense was not eligible for relief under section 1170.18 and defendant had one prior offense under section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration pursuant to section 290, subdivision (c).
Defendant filed points and authorities that included the original information from the 2000 offense, which was originally charged as first degree burglary and receiving stolen property. Defendant also included the minute order from the change of plea hearing from 2000 in which the parties agreed to amend the information to include count 3, grand theft of a firearm, and defendant’s admission of only that count. Counts 1 and 2 were dismissed.
The hearing on defendant’s application was held on June 12, 2015. Defense counsel submitted the matter based on the application. The trial court noted it had “received, read, and considered the petition and the response.” Referring to page 11 from the reporter’s transcript of the change of plea hearing, the prosecutor said the parties stipulated to a factual basis for defendant’s change of plea based on the police report and preliminary hearing transcript. The prosecutor represented the amended count involved admission of section 487, subdivision (d) for “four handguns valued at $1,450 in the aggregate.”
The trial court asked the prosecutor whether defendant pled guilty to grand theft of a single firearm or pled guilty to the aggregate theft of four firearms. The court noted defendant could have pled guilty to the theft of a single gun with the remaining guns considered as part of the victim’s loss for restitution. The prosecutor admitted he did not understand the amended count and could not say for certain whether defendant pled guilty to the theft of one or four firearms. The prosecutor believed, however, that defendant admitted he was in possession of four firearms.
In reviewing the terms and conditions of the plea, the trial court noted there was only a reference to section 487 and restitution was determined to be well in excess of $950. Defense counsel argued the charging document was vague, but even if restitution was ordered for all of the firearms, that did not indicate defendant pled to theft of all of the firearms. Defense counsel argued defendant was qualified for a reduction of the former felony to a misdemeanor.
The trial court observed there was extensive discussion in defendant’s points and authorities concerning what the trial court could consider as the record of conviction. The court said the information was amended to add count 3, a violation of section 487, subdivision (d), “firearm.” The court found it did not “have a value of that firearm.” The court held the defense bore the burden of proof that the firearm was valued at less than $950 and asked counsel if she could point to anything indicating the value of the firearm was less than $950.
Defense counsel replied the value for all four firearms was $1,450 but defendant pled to the theft of just one firearm, by itself, and the value for a single firearm was under $950. Defense counsel argued it was the prosecution’s burden of proof beyond a reasonable doubt. The prosecutor argued the defense bore the burden of proof under Evidence Code section 500. The court held defendant bore the burden of proof, noting it was difficult to make a factual determination 15 years after the conviction without some specific evidence. The court found there was not a sufficient basis for a determination defendant pled guilty to theft of a firearm or firearms, or whether count 3 was meant to be plural rather than singular. The court further found there was no basis for it to conclude the value of the property in count 3 was less than $950, and it denied defendant’s application.
The reporter’s transcript of the change of plea hearing in 2000 was not part of the clerk’s transcript of the record in the instant appeal. The preliminary hearing transcript and police report were also not included in the record transmitted to us from the superior court. As this appeal was pending, defendant brought two motions to augment the record on appeal with the missing reporter’s transcripts, police reports, and other items from the trial court’s record of defendant’s 2000 conviction for grand theft of a firearm. We granted defendant’s motions to augment the record.
During the hearing, the trial court asked the court clerk if they had the record, apparently referring to the court record of defendant’s 2000 conviction for grand theft. Although it is clear the prosecutor had the record from the 2000 case, it is unclear what, if any, part of that record was viewed by the trial court or defense counsel.
During the change of plea hearing, the prosecutor moved “to amend the Information to allege a Count 3, violation of … Section 487(d) as in David, firearm; will be no objection to that amendment, and each defendant will enter a plea to that new Count 3 …, Counts 1 and 2 would be dismissed.” The court and the two defendants’ attorneys stated their further understanding there would be a “Harvey[ ] waiver as to Count 1 for the purpose of restitution only” and their clients were prepared to enter a Harvey waiver. The court granted the People’s motion to amend the information to include count 3 “alleging a violation of … Section 487 sub (d)” and ordered the amended information to be filed. After defendant and the codefendant were advised of and waived their constitutional rights, defendant’s counsel stipulated to a factual basis for the plea based on the sheriff’s report and preliminary hearing transcript.
Defendant was asked if he “did willfully and unlawfully take the personal property of another, to wit: A handgun, otherwise known as a firearm, within the meaning of the Code, within the meaning of and violation of … Section 487 sub (d), a felony.” Defendant pled no contest. The codefendant also pled no contest to unlawfully taking the property of others in violation of section 487, subdivision (d), “to wit: A firearm handgun.” The court dismissed counts 1 and 2 pursuant to the terms of the plea agreement.
The sheriff’s report listed the theft from the victim of multiple items of jewelry, office equipment, and four guns. Three of the guns were handguns and one was a rifle. The handguns were valued individually at $150, $300, and $800. The rifle was valued at $200. Collectively, the guns were valued at $1,450. The jewelry was collectively valued at $7,850 and the office equipment at $2,000. Although the sheriff’s report placed a total value of the victim’s loss as $11,305, at sentencing the trial court ordered direct victim restitution of $13,629. The victim testified at the preliminary hearing that three handguns, one rifle, office equipment, and jewelry were stolen, however, no dollar values were given to the stolen property.
DISCUSSION
Defendant contends the trial court erred because the augmented record clearly demonstrates he was convicted of the theft of a single firearm and no firearm was valued at $950 or more. Defendant argues the prosecutor misrepresented the record to the trial court, committing misconduct, and his trial counsel was ineffective for failing to object to the prosecutor’s misrepresentations.
The People respond that the record of the 2000 grand theft conviction was not before the trial court. The People concede Proposition 47 and its enabling statutes apply to firearms with a value less than $950, but assert defendant did not meet his burden of proof. The People argue there was no prosecutorial misconduct or ineffective assistance of defendant’s trial counsel because it was reasonable for trial counsel to argue the People bore the burden of proof concerning the value of the firearm that was subject to the grand theft conviction.
Proposition 47 reclassified certain drug- and theft-related offenses from felonies or wobblers to misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091–1092.) The measure reduced “penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.)
Proposition 47 added section 490.2, which provides, “(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 considered petty theft and shall be punished as a misdemeanor,” with certain exceptions inapplicable here.
As part of Proposition 47, the electorate enacted section 1170.18. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Section 1170.18 applies to persons convicted of a reclassified offense prior to Proposition 47’s effective date, and allows them to petition the court for reduction of the felony to a misdemeanor. It also provided a mechanism by which a person who has completed a sentence for a felony conviction, which was made a misdemeanor by Proposition 47, can apply to have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).) We review the trial court’s application of Proposition 47 de novo and its factual findings on its ruling on the petition for substantial evidence. (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)
Section 1170.18, subdivision (a) states: “A person who, on November 5, 2014, was 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 … Section … 490.2.” The plain language of sections 1170.18, subdivision (a), and 490.2, subdivision (a), provide that a conviction for grand theft of a firearm in violation of section 487, subdivision (d)(2) is eligible for resentencing, so long as the petitioner can show the value of the firearm taken was $950 or less. (People v. Perkins (2016) 244 Cal.App.4th 129, 141.)
The Supreme Court recently held a petitioner who would be entitled to resentencing has the burden of showing the value of the property in question does not exceed $950. (People v. Romanowski (2017) 2 Cal.5th 903, 916, citing Evid. Code, § 500.) The People concede Proposition 47 and its enabling statutes apply to firearms with a value less than $950, but assert defendant did not meet his burden of proof. Defendant’s application to reduce his prior felony grand theft conviction to a misdemeanor did not state a value for the property subject to grand theft. Defendant’s counsel believed the People had the burden of proving the value of the property involved in the grand theft, a reasonable belief at the time of the hearing but now legally incorrect.
There were a number of disquieting events during the course of the application hearing. The People’s reply to defendant’s application checked a box indicating defendant had a prior conviction for an offense under section 667, subdivision (e)(2)(C)(iv) or for an offense requiring sex registration pursuant to section 290, subdivision (c). These are disqualifying events for relief under section 1170.18, subdivision (i). Our review of the probation officer’s report of defendant’s related appeal including his conviction history does not indicate he has a conviction for a disqualifying serious or violent offense, or any sex offense, and the report does not indicate he is required to register under section 290.
We do not attribute an improper motive in the People’s response to defendant’s application, but it appears the prosecutor who prepared the response took a cavalier approach to responding to defendant’s application. During the hearing on defendant’s application, the People did not argue or present evidence that defendant suffered a disqualifying conviction for a sex offense or was required to register as a sex offender. The forms used in section 1170.18 proceedings for both defendant’s application and the People’s response contribute to perfunctory and conclusory pleadings.
During the hearing, the trial court indicated it reviewed the application, defendant’s points and authorities, and the People’s response. The prosecutor referred to a specific page of the reporter’s transcript from the 2000 change of plea hearing, making it clear the People had at least that document and possibly the entire file of the prior conviction. The trial court appeared to be referring to that record when it asked the court clerk if the court had the file, apparently referring to the court’s file from defendant’s 2000 conviction. The court’s question to the court clerk creates a possible inference the court did not read the reporter’s transcript of the hearing and may not have read the court file from the prior conviction. We cannot discern from the record whether defense counsel had the court file or was referring to its contents during the hearing.
The prosecutor admitted early during the hearing that he could not definitively state whether defendant admitted grand theft of a single firearm, or theft of four firearms collectively. Later, however, the prosecutor argued defendant stole four firearms worth $1,450 in the aggregate and it was defendant’s burden of proof to show otherwise. As we read the reporter’s transcript of the change of plea hearing, the prosecutor’s argument is not susceptible to an interpretation that defendant admitted the grand theft of multiple firearms. The information was amended to allege a single count of section 487, subdivision (d). The trial court informed both defendant and his codefendant that they would be admitting grand theft of a firearm. Finally, when the court took defendant’s and his codefendant’s nolo contendere pleas, the court stated they were admitting grand theft of a firearm, or in defendant’s case, grand theft of “A handgun, otherwise known as a firearm.”
There was no connotation during the change of plea hearing defendant was admitting anything more than the theft of a single handgun. Given there was also the theft of a rifle, as well as two other handguns, this is demonstrative of the parties’ agreement that defendant admitted grand theft of a single gun. Other property was stolen, including office equipment and several pieces of valuable jewelry. The court and the parties expressly noted defendant and codefendant were making a Harvey waiver on the dismissed counts solely for the purpose of victim restitution as to all the property taken from the victim, but defendant did not admit he took other property in the amended count. The sheriff’s report indicated the most valuable handgun had a value of $800. Because the value of any single gun is less than $950, it appears from the court record of defendant’s 2000 grand theft conviction that he will be entitled to relief under section 1170.18 unless there is further record indicating otherwise.
A negotiated plea agreement is a form of contract interpreted according to general contract principles. The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. If the contractual language is clear and explicit, it governs. If the terms of the promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. (People v. Shelton (2006) 37 Cal.4th 759, 767.)
Even if there is additional record of the parties’ intent in the 2000 plea agreement supporting the People’s contention defendant was admitting theft of multiple firearms, the trial court referred to only a single handgun when defendant changed his plea. Any evidence of a different meaning to the agreement to the contrary would create an ambiguity that would be resolved in the sense defendant understood the agreement. We note the People did not object to the trial court’s reference to a single handgun when it explained the terms of the 2000 agreement to defendant and when it read the charge to defendant prior to taking his admission. The prosecutor’s failure to object to the reference to a single handgun is itself evidence of the parties’ intent in entering the plea bargain.
The trial court and the parties were not certain who bore the burden of proof. The record is unclear concerning what portions of the file from defendant’s prior conviction were read. Under these circumstances, we do not attribute misconduct to the prosecutor or ineffective assistance by defendant’s counsel. The trial court also did not make express findings concerning the value of the stolen firearm, though it is unclear whether the court was referring to its record of the defendant’s 2000 conviction. It is incumbent on the trial court to make a record for meaningful appellate review. (In re Armando L. (2016) 1 Cal.App.5th 606, 620-621.)
We remand this case for further proceedings. The trial court and the parties are advised to read the court file from defendant’s 2000 conviction for grand theft of a firearm. From the record currently available, defendant should be able to plead and meet his burden of proof. Based on the record before us, there is no evidence to support the People’s theory that defendant pled nolo contendere to grand theft of multiple firearms. The current record demonstrates defendant pled guilty to the theft of a single firearm, and no firearm had a value greater than $800.
DISPOSITION
The trial court’s ruling on defendant’s application to reduce his 2000 felony conviction for grand theft of a firearm to a misdemeanor is reversed and the matter remanded for a new hearing on defendant’s application or a new application should he elect to file one.


PEÑA, J.
WE CONCUR:



DETJEN, Acting P.J.



MEEHAN, J.