Filed 9/26/17 P. v. Henson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 San Bernardino County. John P. Vander Feer, Judge. Affirmed.

Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth Friedman, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Joshua David Henson appeals from the trial court’s order denying his petition to recall his sentence pursuant to Penal Code section 1170.18, also known as Proposition 47. Defendant argues: (1) his trial counsel was ineffective because he failed to present evidence from the preliminary hearing that the stolen items were worth $950 or less; (2) this court should reconsider existing case law and place the burden on the People to establish the value of the stolen items; and (3) in the alternative, the order should be reversed because the record shows the stolen items were worth $950 or less. We affirm.

Facts and Procedure

In the fall of 2011, a family returned home from vacation to find their home had been broken into and ransacked, and that some items were missing. Law enforcement searched a home where defendant was living with his girlfriend and her three children. The items found during the search included “washed” checks from three different individuals. Relevant to this appeal, law enforcement also found several items that were identified as having been stolen from the family while on vacation. The most detailed description of these items in the record comes from the preliminary hearing transcript, as provided by a Sheriff’s detective assigned to investigate the matter. The detective described the items as follows: (1) “a pink and clear stone ring”; (2) a “black [zippered] bag” with “an invoice, like a bill for the purchase of hearing aids”; (3) “a yellow metal Seiko [woman’s] watch”; and (4) “a small antique mailbox” “used . . . to keep . . . stamps.” No other description appears in this record.

On December 21, 2011, the People filed a felony information charging defendant and his girlfriend with four counts of receiving stolen property (Pen. Code, § 496, subd. (a)) and three counts of child abuse (§ 273a, subd. (a)).

On February 24, 2012, defendant pled guilty to one count of receiving stolen property. Counsel stipulated to using the preliminary hearing transcript as the factual basis for the plea. Also on that date, the court placed defendant on probation for 36 months, with one of the terms that he serve 365 days in jail.

On July 10, 2012, the court revoked defendant’s probation and imposed a 16-month county prison term.

On November 4, 2014, the voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act,” which went into effect the next day. Proposition 47 reduced the penalties for a number of crimes, including receiving stolen property, when the property is worth $950 or less. Under Proposition 47’s statutory scheme, a petitioner bears the burden of demonstrating that he is eligible to have his convictions reduced. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.)

After he had completed his sentence, and with the help of the public defender, defendant filed a petition for resentencing under section 1170.18.

The People responded that the stolen property was worth more than $950.

The court continued four subsequent hearings to allow the defense to establish the value of the stolen property. The court held the hearing on defendant’s petition on August 26, 2016. The People and court noted that the court had continued the hearing four times prior to allow the defense to ascertain the value of the stolen items, and that there were to be no further continuances. Defendant was present, out of custody. Defense counsel stated, “Well, my position is the pleadings don’t indicate what it was that was stolen to establish a value. And if I recall correctly, the charge was receiving stolen property. So without the property in question being named somehow, it should be deemed a misdemeanor.” The People argued that no published or unpublished opinions support that argument. The court noted that the “burden is on the defense,” and denied the motion.

This appeal followed.

Discussion

1.Ineffective Assistance of Counsel

At the hearing on the Proposition 47 petition, defense counsel did not present any evidence from the preliminary hearing in an effort to establish that the stolen items were valued at $950 or less. Defendant argues this deprived him of his constitutional right to effective assistance of counsel. We disagree. “To establish ineffective assistance of counsel, ‘ “ ‘a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” ’ ” ’ [Citation.] ‘ “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” ’ [Citation.] ‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 1051.) Here, we have reviewed the preliminary hearing transcript in detail, and do find a conceivable reason for why defense counsel did not present evidence from that hearing to establish the value of the stolen items—the preliminary hearing transcript simply does not establish the value of the items as being under the threshold. This is because the items are described very generically and, thus, there is no way to establish from that information the value of the items. Although a “black [zippered] bag” and a “Seiko watch” are both likely, but not necessarily, worth less than $950, the “pink and clear stone ring” and the “small antique mailbox” could be anything from trinkets to precious and costly items. It appears counsel may have believed defendant’s best chance was to dispute the burden of proof rather than accept the burden of proof and attempt to establish the value of the items based on the very bare descriptions at the preliminary hearing. Appellant was not denied effective assistance of counsel.

2. Burden of Proof

Defendant argues this court should reject established case law on the burden of proof for Proposition 47 petitions because the burden of proof in criminal prosecutions falls on the prosecution. Defendant acknowledges that this court and other California appellate courts have rejected his position. (E.g., People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow, supra, 239 Cal.App.4th at p. 878; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450.) He asks that we reconsider the issue. We decline to do so.

As we held in Perkins, “[t]he statute itself is silent as to who has the burden of establishing whether a petitioner is eligible for resentencing. However, Evidence Code section 500 provides, ‘[e]xcept 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.’ Because defendant is the petitioner seeking relief, and because Proposition 47 does not provide otherwise,” defendant carries the burden of establishing eligibility for such resentencing. (Perkins, supra, 244 Cal.App.4th at p. 136.)

We follow the decisions of our own district and other districts absent good reason to depart from them. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.) In this case, defendant has provided no persuasive reason to depart from the holding in Perkins and numerous other cases from appellate courts around the state.

3. Preliminary Hearing Transcript on Value

In the alternative, defendant argues the order denying his petition should be reversed because the record establishes the stolen items were worth $950 or less. As we explain ante, the items are described generically in the preliminary hearing transcript, with no indication of value. The “pink and clear stone ring” alone could be a valuable diamond ring worth well over $950; or not. The burden is on the defendant seeking to be resentenced under Proposition 47 to establish his eligibility. (People v. Sherow, supra, 239 Cal.App.4th at p. 878.) Unfortunately for defendant, the record simply does not contain the evidence necessary for him to make the required showing that the stolen items were worth $950 or less

Disposition

The court’s order denying defendant’s petition is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.