Filed 5/8/18 P. v. Kenny CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAVID MATTHEW KENNY,

Defendant and Appellant.
H043096
(Santa Clara County
Super. Ct. No. 181876)

David Matthew Kenny is serving a 25-years-to-life sentence for possessing stolen or extorted property. (Pen. Code, § 496.) He appeals the denial of a petition to recall the sentence and be resentenced under Proposition 47, which reduced the offense to a misdemeanor where the value of the property does not exceed $950. Kenny argues that the trial court committed prejudicial due process error by denying the petition without providing him notice or appointing counsel. He argues in the alternative that any affirmance by this court should be without prejudice to the refiling of a proper petition. For the reasons stated here, we will affirm the order denying resentencing without prejudice to the trial court’s consideration of a new petition supplying evidence of his eligibility for relief.
I. BACKGROUND
A. THE 1996 TRIAL
Kenny was tried by a jury for residential burglary and possessing stolen property (jewelry) from that burglary. The victim testified that she discovered two jewelry boxes missing from her residence on May 7, 1995. Upon learning that Kenny, whom her husband had met in prison, had come to her home two days earlier, the victim believed he had committed the burglary. Kenny was arrested after officers searched his apartment in San Bruno and found some of the victim’s jewelry. Officers also found a pawn shop receipt dated May 6, and the victim identified the pawned jewelry as hers. After Kenny’s arrest, the victim received several phone calls from a man who identified himself as “Joe” and said he was calling on Kenny’s behalf. The caller related to the victim that the remainder of her jewelry would be returned if she did not testify against Kenny. Kenny mailed several communications to the victim identifying a go-between who would return her jewelry, and some (but not all) of the victim’s jewelry was eventually returned by mail.
Kenny testified that he paid the victim $800 in 1993 for a car he bought from her husband. On May 5, 1995, upon discovering that the Vehicle Identification Number had been tampered with, Kenny went to the victim’s home and spoke with her brother. Kenny returned that night and told the victim he wanted $840 for the car and expenses. When the victim asked him what he would be willing to take, he asked for her wedding ring, and she gave him several pieces of jewelry to hold as collateral. Kenny pawned some of the pieces and kept the others in his apartment, intending to return all the items when he was paid the money he felt he was owed.
After Kenny testified, the prosecution amended the information to allege possession of stolen property or property obtained by extortion. The jury found Kenny guilty of possessing stolen or extorted property, and found him not guilty of burglary. The court found true prior strike allegations (Pen. Code, § 667, subds. (b)-(i)), and sentenced Kenny to 25 years to life. He was ordered to pay over $8,000 in restitution to the victim, including $6,672 for jewelry that was not recovered. We affirmed the judgment in an unpublished opinion (People v. Kenny (Dec. 4, 1998, H015928)) attached to the remittitur and included in the clerk’s transcript.
B. POST-CONVICTION RESENTENCING PROCEEDINGS
Kenny filed a petition to recall his sentence under the Three Strikes Reform Act, adopted by voters in 2012 as Proposition 36. (Pen. Code, § 1170.126.) The trial court denied the petition, finding Kenny posed an unreasonable risk of danger to public safety. (Pen. Code, § 1170.126, subd. (f).) In its oral pronouncement, the court told Kenny he had been given a break in 1996 when the jury returned a compromise verdict instead of finding him guilty of first degree burglary, and the court stated it found his account that the victim had given him her heirloom jewelry to be “preposterous.” We affirmed the order denying that petition in People v. Kenny (Nov. 18, 2016, H040515 [nonpub. opn.]).
Kenny then filed the instant petition seeking to have the conviction reduced to a misdemeanor under Penal Code section 1170.18, adopted by voters in 2014 as part of the Safe Neighborhoods and Schools Act (Proposition 47). In support, he stated that he had been “arrested . . . and charged with possession of five (5) items of stolen and/or extorted property in San Mateo County”; “[he] was subsequently removed to Santa Clara County & charged with possession of stolen property, and the burglary that the property was obtained from”; “[t]he value of the five items of property (a small chain, a set of earrings, a pea sized nugget, a silver ring and a four-leaf clover) was approximately five hundred and fifty dollars”; and he “was acquitted of burglary and found guilty of possession of stolen/extorted property following a jury trial.” He also stated that the prosecutor convinced the trial court at sentencing to order restitution for items allegedly stolen in the burglary of which he had been acquitted.
The trial court summarily denied the petition in a written order, finding that the value of the property exceeded $950 and the petition failed to make a prima facie eligibility showing. The court noted Kenny’s factual claims “regarding the number of items and the value of the extorted property” were unsupported, conclusory, and inconsistent with the evidence in the record and this court’s 1998 opinion. The court observed that Kenny’s identification of five pieces of jewelry was inconsistent with the 31 pieces of recovered jewelry admitted in evidence at trial, and that a total value of $550 was inconsistent with his testimony (that he had asked for collateral to cover an $840 loss), his letter to the trial judge in support of a new trial motion (referring to $900 in recovered stolen property), the restitution order, and our 1998 opinion upholding that order.
The court denied Kenny’s request for appointment of counsel because the petition failed to set forth a prima facie case for relief.
II. DISCUSSION
Proposition 47 redesignated certain felony and wobbler offenses as misdemeanors, including possession of stolen property valued at $950 or less. Penal Code section 1170.18 provides a resentencing mechanism for persons serving a felony sentence “who would have been guilty of a misdemeanor” had the redesignation been in effect at the time the offense was committed. A person may petition for a recall of sentence and resentencing in accordance with the newly designated offense (Pen. Code, § 1170.18, subd. (a)), and the trial court is directed to resentence the person to a misdemeanor unless it determines resentencing would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.18, subd. (b).) The petitioner has the burden of establishing eligibility under subdivision (a). If the subject crime is a theft offense or an offense under Penal Code section 496, the petitioner has the burden of proving that the value of the property did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 879–880.) The trial court may be able to determine whether a petitioner is eligible for resentencing by consulting the record of conviction. (People v. Perkins (2016) 244 Cal.App.4th 129, 138 (Perkins).) But in many cases the value of the property is not important at the time of conviction, so the record may not contain sufficient evidence to determine its value. Petitioners may therefore submit extra-record evidence probative of the value when they file their petitions for resentencing. (Id. at p. 140, fn. 5.)
A. NOTICE AND APPOINTMENT OF COUNSEL
Kenny argues that the trial court abused its discretion by making an adverse eligibility finding (based on the value of the extorted property) in violation of his due process rights to notice and the assistance of counsel. He argues that he was entitled to notice and an attorney because he made a prima facie showing of eligibility for resentencing by identifying and estimating the value of the extorted jewelry. He contends he was prejudiced because notice would have allowed him or an attorney to persuade the trial court that none of the evidence in the record undermined his eligibility. Specifically, his stated valuations ($550 in the resentencing petition and $900 in his motion for a new trial) and the amount he claimed he was owed at trial ($840) all were less than $950, and the restitution order did not inform the value of the extorted property because it included restitution for unrecovered property attributable to a burglary and never shown to be in his possession.
Kenny relies principally on People v. Bradford (2014) 227 Cal.App.4th 1322 (Bradford) to support his due process argument. Bradford involved the trial court’s denial of a resentencing petition under Proposition 36 without a hearing. Among the eligibility requirements for resentencing under Proposition 36, the petitioner’s sentence cannot be for an offense committed while armed with a firearm or deadly weapon. (Pen. Code, §§ 1170.126, subd. (e)(2), 667, subd. (e)(2)(C)(iii).) Bradford had been convicted of several commercial burglaries and petty thefts without any finding that he had been armed. Based on the evidence in the record of conviction (wire cutters had been found in his pants pocket after stealing from two stores, and in his bag following another shoplifting) the trial court determined that he had been armed with a deadly weapon and was therefore ineligible for resentencing. (Bradford at p. 1330.)
The Bradford court concluded that a trial court’s factual eligibility determination about whether a resentencing petitioner was armed with a deadly weapon during the offense must be based solely on evidence contained in the record of conviction. (Bradford, supra, 227 Cal.App.4th at p. 1331.) Bradford therefore had no due process right to an evidentiary hearing regarding eligibility. (Id. at p. 1341.) But he was nonetheless entitled to “an opportunity to be heard before the court determines ineligibility based on unadjudicated facts.” (Id. at p. 1331.) The Bradford court advised petitioners who seek resentencing under Proposition 36 to address eligibility issues directly in the resentencing petition. (Id. at p. 1341.) At the same time, it instructed trial courts to “invite further briefing by the parties” before finding a petitioner ineligible for resentencing when a resentencing petition fails to address an unadjudicated eligibility finding. (Id. at p. 1341.) Ultimately, the Bradford court concluded that the trial court’s deadly weapon finding was not supported by substantial evidence in the record, and remanded the matter for consideration under the remaining provisions of Penal Code section 1170.126. (Bradford at p. 1343.)
Perkins involved a resentencing petition under Penal Code section 1170.18 for receiving stolen property, and it discussed the Bradford case in examining the sufficiency of the petition. The petition in Perkins stated the requirements for eligibility (a conviction for receiving stolen property valued at less than $950) but contained no declaration, record citations, or attached evidence to support the asserted value of the property. (Perkins, supra, 244 Cal.App.4th p. 133.) The trial court denied the petition without holding a hearing, noting “losses over $950,” and Perkins challenged that finding as lacking substantial evidence. (Id. at pp. 133, 135.) The Perkins court acknowledged the trial court’s unexplained finding, but it affirmed the order denying resentencing on a different ground—that Perkins had filed a deficient petition. (Id. at p. 139.) Perkins had not provided a factual basis for his allegation that the property was worth less than $950, resulting in the failure to provide “information that would allow the court to ‘determine whether the petitioner satisfies the criteria in subdivision (a).’ ” (Id. at p. 137.) The affirmance was without prejudice to the trial court considering a new petition supplying evidence of eligibility.
The Perkins court explained that the concern in Bradford—that an eligibility finding not be made without the petitioner’s input—was not present in a resentencing proceeding initiated by a deficient petition. (Perkins, supra, 244 Cal.App.4th at pp. 138–139.) The petition in Perkins “was not sufficiently supported to create a dispute requiring the court to seek additional input from the parties.” (Id. at p. 139.) The court clarified that “[t]he outcome may have been different if defendant had stated a prima facie case for resentencing and supported his case with evidence or information. If the evidence were sufficient to create a dispute, it would be appropriate for the superior court to allow [the] parties to address the disputed issue at a later qualification hearing.” (Ibid.)
We find no due process violation in the trial court’s handling of Kenny’s resentencing petition. Kenny did not make a prima facie eligibility showing because the value asserted in his petition was not supported by a factual basis. (People v. Sweeney (2016) 4 Cal.App.5th 295 [eligibility burden not met by alleging a belief that stolen property was worth less than $950].) The petition was deficient because it did not include “information or evidence necessary to enable the court to determine eligibility.” (Perkins, supra, 244 Cal.App.4th at p. 137.) It was also deficient in that it was inconsistent with evidence produced at trial. The petition accounted only for the five pieces of jewelry found in Kenny’s possession when he was arrested, but 31 pieces of jewelry were produced at trial, including jewelry he had pawned. The petition did not acknowledge the additional pieces of jewelry or show that all of the jewelry in evidence was valued at $950 or less. The petition addressed an unadjudicated eligibility issue, but failed to make a threshold eligibility showing. Based on the deficient petition and the record of conviction, the trial court did not abuse its discretion by denying the petition without providing notice or appointing counsel to assist Kenny. (See In re Clark (1993) 5 Cal.4th 750, 780 [due process right to counsel attaches on a petitioner’s collateral attack on his conviction after stating a prima facie case]; People v. Shipman (1965) 62 Cal.2d 226, 232–233 [due process right to counsel attaches in coram nobis proceedings when “adequately detailed factual allegations stat[e] a prima facie case”]; cf. People v. Rouse (2016) 245 Cal.App.4th 292, 299–300 [recognizing a due process right to assistance of counsel for resentencing under Proposition 47, after the petitioner succeeded in having his sentence recalled and vacated in its entirety, including on the non-Proposition 47 counts].)
B. REFILING OPPORTUNITY
Kenny argues that any affirmance should be without prejudice to the filing of a new resentencing petition, providing him another opportunity to demonstrate that the value of the stolen or extorted property was $950 or less. Opposing the request, the Attorney General argues that the victim’s testimony regarding the value of the unrecovered jewelry and this court’s affirmance of the restitution order conclusively establish Kenny’s ineligibility for resentencing. But we are unable to attribute the unrecovered jewelry to the conviction at this time because the limited appellate record does not reveal the factual basis for the jury’s guilty verdict. The victim’s testimony regarding the value of the unrecovered jewelry, while relevant to the trial court’s restitution determination, sheds no light on the reach of the guilty verdict. This court’s earlier observation that a jury could reasonably have concluded that Kenny had extorted the missing jewelry was made in upholding the restitution order, not in reviewing the guilty verdict. While a restitution award must be factually supported, there is no requirement that it “be limited to the exact amount of the loss in which the defendant is actually found culpable.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 1125.)
The Attorney General argues that Kenny should not be given the opportunity to file a new petition because he was on full notice of his burden when he filed the deficient petition, and he has failed to show that he can cure the deficiency. Kenny filed his petition in October 2015, two months after the court in People v. Sherow, supra, 239 Cal.App.4th 875 established the petitioner’s burden of proving eligibility. Since Kenny filed his petition, however, the appellate courts have further articulated what meeting that burden entails. The court in Perkins, supra, 244 Cal.App.4th 129 clarified that a petition should be supported with evidence or information, and the court in People v. Sweeney, supra, 4 Cal.App.5th 295 explained that a petitioner’s eligibility burden is not met with an affidavit based on information and belief. (Id. at p. 302.) Those courts, as well as the California Supreme Court, have affirmed the denial of resentencing petitions without prejudice, without requiring a showing that the deficiency can be cured. (People v. Page (2017) 3 Cal.5th 1175, 1189.) We will do the same here.
We note that the probation report in this case includes a statement that the jewelry recovered from the pawn shop alone was worth was $955. We also note that reliable hearsay statements in a probation report may be considered when determining eligibility under Proposition 47. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1095.) In meeting his eligibility burden, Kenny must be prepared to address the weight the trial court should give that information should he file a new petition.
III. DISPOSITION
The trial court’s order denying the petition for resentencing is affirmed without prejudice to consideration of a properly filed petition in which Kenny supplies evidence of his eligibility for relief under Proposition 47.


____________________________________
Grover, J.




WE CONCUR:




____________________________
Greenwood, P. J.




____________________________
Premo, J.








H043096 - People v. Kenny