Filed 8/17/17 P. v. Rood CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Appellant, v. CHRIS JOHN ROOD, Defendant and Respondent.

E065873 (Super.Ct.No. PEF006258) OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed in part; reversed in part.

Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant.

Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Respondent.

I

INTRODUCTION

The People appeal the trial court order granting defendant Chris John Rood’s application for reduction of his felony convictions for burglary, forgery, and receiving stolen property (counts 1 through 5) to misdemeanors under Proposition 47 (Pen. Code, § 1170.18).[1] The People contend the trial court erred in granting defendant’s application because defendant failed to establish eligibility for relief under Proposition 47. The People assert that defendant entered a commercial establishment with intent to commit identity theft, which constitutes second degree felony burglary, not misdemeanor shoplifting. The People also argue defendant did not meet his burden of proof because he did not provide any evidence of the value of the checks at issue in count 5.

We conclude defendant was eligible for reduction of his felony convictions in counts 1 through 4 to misdemeanors. However, defendant did not meet his burden of proving eligibility as to count 5. We therefore affirm the order granting defendant’s application as to counts 1 through 4, and reverse the order granting defendant’s application as to count 5.

II

FACTS[2] AND PROCEDURAL BACKGROUND

On April 14, 2001, defendant entered Market Plus in Perris and cashed a stolen check. The checking account owner was All Discount Insurance Services Inc. (ADI). The check was made out to defendant. The owner of ADI reported that the stolen check was one of multiple checks stolen from his Moreno Valley office.

On April 24, 2001, defendant entered Romoland Market in Romoland, and cashed another stolen check. The check was also a stolen ADI check made out to defendant. The bank notified the owner of Romoland Market that the $275 check was stolen and returned it to the owner of Romoland Market. The check was provided to the investigating officer. Defendant was identified as the suspect by his California driver’s license number, fingerprint on the check, and phone number on the stolen check. Defendant’s personal information matched the information and identity of the suspect involved in the Market Plus incident.

The district attorney filed a felony complaint charging defendant with two counts of second degree felony burglary (§ 459; counts 1, 3), two counts of forgery (§ 475, subd. (c); counts 2, 4), and one count of receiving stolen property (§ 496; count 5).

The complaint alleges in counts 1 and 2 that defendant committed burglary and forgery, respectively, when he entered Market Plus with intent to commit theft and a felony, and with intent to cash a forged check. Counts 3 and 4 allege defendant committed burglary and forgery, respectively, when he entered Romoland Market with intent to commit theft and a felony, and with intent to cash a forged check. Count 5 alleges defendant received stolen checks, knowing they were stolen. The complaint also alleges that defendant had a prior prison conviction for burglary in 1993 (prison prior), and three prior serious and violent felonies (strikes). (§§ 667.5, subd. (b), 667, subds. (c) and (e), and 1170.12, subd. (c).)

In 2003, defendant pled guilty to all five counts, and admitted one strike and one prison prior. The court sentenced defendant to 12 years 4 months in state prison.

In April 2015, after defendant had completed his sentence, defendant filed a form application for reduction of his felony convictions to misdemeanors under section 1170.18, subdivision (a) (Proposition 47). The People filed a response, requesting a hearing to determine the value of the stolen property. The trial court ordered the matter set for a hearing. The court noted it had the police report, and there was an issue as to when the checks were stolen from ADI and the value of the second check.

On February 26, 2016, the trial court heard defendant’s application for reduction. The prosecutor stated that the People objected to reduction of the burglary felonies alleged in counts 1 and 3, to misdemeanors, because defendant’s intent was to commit identity theft in violation of section 530.5. Identity theft remains a felony under Proposition 47. The People argued that, therefore, counts 1 and 3 could not be reduced to misdemeanor shoplifting. The prosecutor submitted, as to counts 2 and 4, to the court granting defendant’s application for reduction of the forgery convictions to misdemeanors. The prosecutor conceded that the check in count 2 was $75, and the check in count 4 was $275.

The prosecutor objected, however, to defendant’s application for reduction of count 5 to a misdemeanor because it was unknown if the stolen checks were written out or if there were “other” checks. The trial court asked if there was any other information on the checks, and noted the police report “doesn’t speak to them, it just says checks.” The prosecutor stated that she assumed the checks that were the basis of count 5 were not the $75 and $275 checks because counts 1 through 4 were based on those two checks. Upon the court’s inquiry as to the restitution order on count 5, the prosecutor stated that the court had previously ordered that restitution on count 5 would be determined at a later date.

The trial court overruled the prosecutor’s objections to granting defendant’s application for reduction. As to count 5, the court stated it was granting the application for reduction because there was no evidence the checks were written out. The People objected to this ruling on the ground defendant had the burden of establishing the checks were not made out, and had not met his burden. The court said defendant’s burden was met because the police report did not include copies of the checks, and this indicated the stolen checks alleged in count 5 were not made out. The trial court then granted the entire application for reduction, ordered one prior stricken, and ordered the incident report filed with the court.

III

PROPOSITION 47

On November 4, 2014, California voters enacted Proposition 47, “The Safe Neighborhoods and Schools Act,” which became effective the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 reduced certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Under Proposition 47, a defendant may be eligible for misdemeanor resentencing or redesignation under section 1170.18 if he would have been guilty of a misdemeanor under Proposition 47, and if the offense would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subds. (a) and (f); People v. Gonzales (2017) 2 Cal.5th 858, 863, 875 (Gonzales).) Resentencing or redesignation under Proposition 47 is “required unless ‘the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) A person who has already completed a felony sentence may petition to have his felony conviction designated a misdemeanor. (§ 1170.18, subds. (f), (g).)” (Gonzales, at p. 863.)

Proposition 47 added several new provisions, including section 459.5, which created the crime of shoplifting. Section 459.5, subdivision (a) provides: “Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($ 950). Any other entry into a commercial establishment with intent to commit larceny is burglary.” “Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense.” (Gonzales, supra, 2 Cal.5th at pp. 863, 863; § 459.5, subd. (a).) Section 459.5, subdivision (b) explicitly limits charging on shoplifting: “‘Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.’” (Gonzales, at p. 863.)

Proposition 47 directs the “act shall be broadly construed to accomplish its purposes.” (Cal. Voter Information Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47 (Voter Information Guide), p. 74, § 15, at <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of August 17, 2017].) One such purpose of Proposition 47 is “‘to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.’ [Citations.] [Proposition 47] also expressly states an intent to ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.’” (Gonzales, supra, 2 Cal.5th at p. 870, citing Harris v. Superior Court (2016) 1 Cal.5th 984, 992 and the Voter Information Guide, supra, text of Prop. 47, §§ 2-3, par. (2-3), p. 70.)

IV

FORFEITURE

Defendant argues the People forfeited their objections to defendant’s application for reduction. We disagree. The People raised in the trial court the same objections raised on appeal. In the People’s response to defendant’s application, the People stated that a hearing should be set to determine the value of the stolen property at issue. This indicated the People contested defendant’s allegation the value of the stolen property at issue did not exceed $950.

In addition, during the hearing on the application for reduction, the prosecutor argued the burglary convictions (counts 1 and 3) were not eligible for reduction because they were based on defendant committing identity theft (§ 530.5), which is a felony. The prosecutor also objected as to count 5 (receiving stolen property) on the ground there was no evidence as to whether the stolen checks were blank checks or written out. The prosecutor argued that therefore defendant had not met his burden of proving the value of the stolen property at issue in count 5. The prosecutor sufficiently objected in the trial court for purposes of preserving the right to raise the People’s objections on appeal.

V

IDENTITY THEFT

The People contend defendant is not eligible for reduction of his felony burglary convictions to misdemeanor shoplifting because he committed the offenses (counts 1 and 3) by entering commercial establishments with intent to commit identity theft (§ 530.5), which remains a felony under Proposition 47. The People rely on People v. Barba (2012) 211 Cal.App.4th 214, which held that attempting to cash a check containing personal identifying information of another person constitutes identity theft. (Id. at pp. 229-230.) The People further assert that it is irrelevant that defendant was not charged with theft, because the identity theft offense was the predicate offense for defendant’s burglary convictions. The predicate offenses need not be charged separately or proven. Only proof of the intent to commit the predicate offense is required. (People v. Brownlee (1977) 74 Cal.App.3d 921, 930 [burglary complete upon entry with intent to commit felony].)

The California Supreme Court recently rejected this argument in Gonzales, supra, 2 Cal.5th 858. In Gonzales, the defendant (Gonzales) stole his grandmother’s checkbook, and on two separate occasions entered a bank and cashed a check he had made out to himself for $125. Gonzales was charged with the felonies of second degree burglary and forgery. Gonzales pled guilty to burglary. His forgery count was dismissed. Gonzales petitioned for misdemeanor resentencing under Proposition 47. The trial court denied his petition, the Court of Appeal affirmed, and the Supreme Court reversed, holding that the electorate “intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute. Defendant may properly petition for misdemeanor resentencing under Penal Code section 1170.18.” (Gonzales, at p. 862.)

As in the instant case, in Gonzales, the Attorney General cited People v. Barba, supra, 211 Cal.App.4th 214, in support of their contention that, even if Gonzales engaged in shoplifting, he was not eligible for resentencing because he also entered the bank intending to commit identity theft. Thus, his felony burglary conviction could have been based on his separate intent to commit identity theft. (Gonzales, supra, 2 Cal.5th at p. 876.) The court in Gonzales rejected this proposition, concluding that, even assuming the defendant “entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting.” (Ibid.)

In reaching its holding, the court in Gonzales explained that “Section 459.5, subdivision (b) requires that any act of shoplifting ‘shall be charged as shoplifting’ and no one charged with shoplifting ‘may also be charged with burglary or theft of the same property.’ (Italics added.) A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct. The statute’s use of the phrase ‘the same property’ confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge. Thus, the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950. A felony burglary charge could legitimately lie if there was proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit.” (Gonzales, supra, 2 Cal.5th at pp. 876-877.)

Under Gonzales, the trial court in the instant case properly granted defendant’s application for reduction of defendant’s felony burglary convictions to misdemeanors. Defendant met his burden of establishing that his burglary convictions qualified under Proposition 47 as misdemeanor shoplifting offenses.

VI

PROOF OF VALUE OF THE STOLEN PROPERTY

The People contend the trial court erred in granting defendant’s application for reduction of his felony conviction for receiving stolen property in violation of section 496, subdivision (a) (count 5). The People argue defendant did not meet his burden of proving eligibility for reduction of count 5 to a misdemeanor under Proposition 47. We agree.

Defendant, as the petitioner, bears the burden of proving eligibility for Proposition 47 relief. (People v. Romanowski (2017) 2 Cal.5th 903, 916; People v. Sherow (2015) 239 Cal.App.4th 875, 880; see Evid. Code, § 500.) In determining whether the defendant has met his burden of proof in establishing the value of the stolen property, the trial court is required “to determine the value of property obtained by theft based on ‘reasonable and fair market value.’ (§ 484, subd. (a) [‘In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test.’].)” (Romanowski, at p. 914.)

Although a conviction for receiving stolen property is not a section 484 theft offense, the court in Romanowski noted that “courts have long required section 484’s ‘reasonable and fair market value’ test to be used for theft crimes that contained a value threshold, . . . Acceptance of this approach was part of the backdrop against which Proposition 47 was enacted, and Proposition 47 does not refer to any other approach to valuation. We thus see no basis for an alternative approach to valuation either in the original statutory scheme or in the provisions enacted by Proposition 47.” (People v. Romanowski, supra, 2 Cal.5th at p. 914.) The Romanowski court therefore held that “Courts must use section 484’s ‘reasonable and fair market value’ test when applying section 490.2’s [petty theft] value threshold for theft crimes.” (Ibid.) The court must likewise use the reasonable and fair market value test when applying section 496’s value threshold for the crime of receipt of stolen property. (Ibid.)

In determining the fair market value of the stolen checks, the court is not limited to considering the legal market value. “When a defendant steals property that is not sold legally, evidence related to the possibility of illegal sales can help establish ‘reasonable and fair market value.’ Only in cases where stolen property would command no value on any market (legal or illegal) can courts presume that the value of stolen access information is de minimis.” (People v. Romanowski, supra, 2 Cal.5th at p. 915.) “It is now well settled that the valuation of stolen goods according to the concept of a ‘thieves’ market’ is an appropriate method for determining the ‘market value’ of goods . . . .” (U.S. v. Oberhardt (7th Cir. 1989) 887 F.2d 790, 792, Romanowski, at p. 916.)

The trial court was thus required in the instant case to determine whether defendant established that the fair market value of the stolen checks in count 5 did not exceed $950 in value. Defendant did not provide any evidence establishing the value of the checks. Defendant merely filed a form application for reduction of his felony convictions to misdemeanors, without providing any supporting evidence. Defense counsel signed the application under penalty of perjury. A box on the form application is checked, stating that “Defendant believes the value of the check or property does not exceed $950.” This allegation by defense counsel is insufficient to meet defendant’s burden of proof. A generic statement of belief by defense counsel that the value of the property, not otherwise identified, did not exceed $950, is insufficient to state a prima facie case of eligibility for resentencing. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136.)

Defendant also did not provide any supporting evidence at the hearing on his application. During the hearing, the prosecutor informed the trial court that it was unknown whether the checks which were the subject of count 5 “were written out or if there were other checks.” The trial court asked if there was any information regarding the checks, such as whether they were made out. The court noted that the incident report did not state the amount of the checks alleged in count 5. The prosecutor and court agreed that the checks in count 5 were not the same checks alleged in the other counts (counts 1 through 4 for burglary and forgery).

The trial court ruled that, “On the 496(a), I am going to deem it a misdemeanor based on the fact the checks don’t have any value since there is no evidence that they were written out.” The prosecutor responded, objecting that, “As to the 496(a), . . . I don’t believe the defense has met their burden of showing they weren’t written out, which is their burden.” The court responded that it agreed it was defendant’s burden but added: “[W]hen you have a report that says checks, normally when they are written out, they are copied. The checks were written out we know of, 75 and 275, so I think they have met their burden. But if the People . . . have something that shows in fact that is incorrect, you can resubmit it to the Court.” The court added that defendant’s burden was met because the incident report did not include copies of the checks, and this indicated they were not made out.

Because the burden of proof was on defendant, and not the People, and there was no evidence of the value of the checks, we conclude the trial court erred in granting defendant’s application for reduction as to count 5. There was no evidence of the number of checks at issue in count 5, whether anything was written on the checks, or whether the checks had any fair market value, such as on the black market.

Furthermore, it was not reasonable to assume that the checks were blank based on the incident report not including copies of the checks or stating that the checks were made out in any specific amount. This reasoning is inconsistent with the fact the incident report also did not include a copy of the $75 check or state the amount of that check. There is no evidence in the record establishing the value of the $75 check, other than the prosecutor conceding the value of the check at the hearing on defendant’s application for reduction of the counts that were based on the check (counts 1 and 2). The fact that the incident report does not state anything was written on the stolen checks alleged in count 5 therefore does not support a reasonable inference that the checks were blank. In addition, it appears from the incident report that the reason the incident report does not mention the amount of the $75 check or the count 5 checks is because the focus of the incident report was on the investigation of the forgery incident involving the $275 check, not the crimes involving the $75 check or the stolen checks alleged in count 5.

While it may be that the checks were blank and were not worth much, even on the black market, defendant, as the petitioner, has the burden of establishing this, not the People. Petitioner has not done so. (People v. Romanowski, supra, 2 Cal.5th at p. 916; People v. Sherow, supra, 239 Ca1.App.4th at p. 880; see Evid. Code, § 500.) The trial court therefore erred in granting defendant’s application for reduction of his count 5 conviction to a misdemeanor.

We are not persuaded by the dissent’s two stated grounds for concluding this court should uphold the trial court’s ruling granting Proposition 47 relief on count 5. Regarding the first ground, that the stolen checks alleged in count 5 were the same two checks that formed the basis of counts 1 through 4 (checks for $75 and $275), the People and the trial court agreed, and it was undisputed, that the checks that formed the basis of count 5 were not the same checks that formed the basis of counts 1 through 4. Furthermore, any assumption that count 5 was based on the same checks alleged in counts 1 through 4 is pure speculation and not founded on substantial evidence.

Regarding the second ground raised in the dissent, that the checks that formed the basis of count 5 were blank checks, this is also pure speculation and not founded on substantial evidence. In addition, as we explained above, a reasonable inference cannot be made that the checks were blank based on the fact that the police report does not include copies of the checks. The police report did not concern the count 5 offense. Also, the police report did not include a copy of the $75 check. It thus cannot be assumed that the count 5 checks were blank checks. Defendant simply has not met his burden of establishing that the value of the count 5 checks did not exceed $950. Therefore defendant is not entitled to Proposition 47 relief as to count 5.

VII

DISPOSITION

The trial court’s order granting defendant’s application for reduction of his felony convictions on counts 1 through 4 is affirmed. However, the trial court’s order granting defendant’s application for reduction of his felony conviction on count 5 is reversed,

without prejudice to defendant’s filing and the trial court’s consideration of a new, factually supported application for reduction of defendant’s count 5 conviction to a misdemeanor.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

I concur:

MILLER

Acting P. J.

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