Filed 10/3/17 P. v. Hernandez CA4/2

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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. Judith C. Clark, Judge. Affirmed.

Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Aaron Alexander Hernandez pled guilty to one felony count of receiving stolen property (Pen. Code, § 496, subd. (a); count 1), specifically cash and identification cards. The trial court imposed a low term sentence of 16 months in state prison, doubled to 32 months for an admitted strike prior offense. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).)[1]

After California voters later passed Proposition 47, which converted receipt of stolen property into a misdemeanor where the value of the stolen property does not exceed $950 (§ 496, subd. (a)), Hernandez petitioned for resentencing (§ 1170.18, subd. (a)). The trial court denied his petition because Hernandez failed to show the value of the stolen property did not exceed $950, and we affirmed on the same basis.

The California Supreme Court has ordered us to reconsider our previous opinion in view of its decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). Because Romanowski establishes Proposition 47 petitioners have the burden of establishing eligibility for resentencing, we affirm on the same basis as previously. However, Romanowski also establishes petitioners may rely on extra-record evidence to prove the value of the stolen property did not exceed $950. Because the burden and the character of permissible evidence were unsettled when Hernandez sought relief, we affirm without prejudice to his filing a new petition supported by probative evidence of value.

I

FACTUAL BACKGROUND

On February 13, 2014, prosecutors charged Hernandez with felony receipt of stolen property (§ 496, subd. (a)) and misdemeanor unauthorized entry of property (§ 602.5, subd. (a)). The complaint alleged defendant “wilfully and unlawfully receive[d] . . . CASH AND ID CARDS OF SUZANNE A., which said property had been obtained by theft, knowing said property had been so obtained, and did conceal and withhold and aid in concealing and withholding said property from the owner.” On March 12, 2014, Hernandez pled guilty to the felony receipt of stolen property count and admitted his prior conviction for attempted robbery constituted a strike prior. Consistent with the plea agreement, the trial court dismissed the misdemeanor count, sentenced Hernandez to 16 months in state prison, and doubled the term to 32 months because of the strike prior.

On November 4, 2014, after Hernandez began serving his sentence, Proposition 47 amended section 496, subdivision (a) to reduce certain felonies, including receipt of stolen property, to misdemeanors “if the value of the [stolen] property does not exceed nine hundred fifty dollars ($950).” (§ 496, subd. (a).) Proposition 47 also created a procedure for offenders who had been convicted of felonies that had been reduced to misdemeanors to petition to change their existing convictions and sentences. (§ 1170.18, subds. (a)-(b), (f)-(g).) On November 24, 2014, Hernandez filed a petition for resentencing. His petition identified his conviction as being for a violation of section 496, subdivision (a), but did not address the value of the stolen property.

On April 10, 2015, the trial court held a hearing on the petition. Near the outset, the trial court indicated “the defense [has] the burden of establishing a prima facie showing that the defendant would qualify for the relief requested before any burden would then shift to the prosecution.” Defense counsel acknowledged the burden to “state a prima facie basis for relief” and represented that “the only evidence available to me to present to the court is the charging document and the Tahl[[2]] waiver.” Defense counsel asked the court to take judicial notice of those documents. The complaint against Hernandez says only that he received cash and identity cards of a person named Suzanne A., knowing the property had been obtained by theft, and kept the property from her. At the plea hearing, defendant admitted the same facts, without elaboration. Defendant’s waiver form is also silent on the value of the property.

The trial court denied the petition on the ground defendant did not carry his burden of showing he was eligible for resentencing under section 1170.18, subdivision (a).

II

DISCUSSION

This case requires us to construe the language of an initiative measure, Proposition 47. The same principles that govern construction of a statute enacted by the Legislature apply to construing a voter initiative. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1025-1026, 1056.) If the statutory language is not ambiguous, the plain meaning governs. (Id. at p. 1025.) Our review involves a pure question of law and is therefore de novo. (Id. at p. 1026.)

An offender who is currently serving a felony sentence for receiving stolen property (§ 496, subd. (a)) may qualify to have his sentence recalled and to receive a misdemeanor sentence where the facts show his offense has been reclassified as a misdemeanor (§ 1170.18, subds. (a)-(b)). At the time of his conviction, the prosecution was permitted to plead and prove receipt of stolen property as a felony regardless the value of the stolen property. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308.) As amended by Proposition 47, section 496, subdivision (a) now specifies that “if the value of the [stolen] property does not exceed nine hundred fifty dollars ($950), . . . the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year.” Thus, defendant would be eligible for resentencing if the value of the stolen property in his case did not exceed $950. (See People v. Shabazz, at p. 308.)

It is now settled “[t]he ultimate burden of proving section 1170.18 eligibility lies with the petitioner.” (Romanowski, supra, 2 Cal.5th at p. 916; see also Evid. Code, § 500 [“a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting”].) However, as the Supreme Court noted, “eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction [and] . . . an evidentiary hearing may be ‘required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’” (Romanowski, at p. 916.)

In this case, the uncontested information in the petition and the record of conviction do not establish eligibility, and Hernandez did not present extra-record evidence to meet his burden nor does the record otherwise establish his eligibility. As we have mentioned, neither the pleadings nor the plea provided information regarding the value of the stolen property. At the hearing on the petition, defense counsel offered no evidence related to value. We therefore conclude the trial court properly denied defendant’s petition. (§ 1170.18, subd. (b) [“the court shall determine whether the defendant satisfies the criteria in subdivision (a)”].)

Hernandez concedes these facts and that we must affirm the trial court in his supplemental brief submitted after remand from the Supreme Court. However, he contends we should affirm without prejudice to his filing another petition properly supported by evidence. We agree that remedy is appropriate in this case. Hernandez filed his original petition and the trial court held a hearing on the petition before any appellate court had addressed which party had the burden of proof on the issue of the value of stolen property or whether petitioner could rely on evidence from outside the record of conviction to establish value. Romanowski now establishes Hernandez has the burden and that he may satisfy that burden by reference to extra-record evidence. (Romanowski, supra, 2 Cal.5th at p. 916.) For that reason, we affirm the order denying the petition, but do so without prejudice to subsequent consideration of a properly supported petition. (People v. Perkins (2016) 244 Cal.App.4th 129, 140.)

III

DISPOSITION

We affirm the order denying defendant’s petition for resentencing, without prejudice to his filing a new petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.