Filed 10/4/17 P. v. Willis CA4/3
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT EARL WILLIS, JR.,
Defendant and Appellant.
|
G051940
(Super. Ct. No. 10NF2940)
O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Karl T. Terp and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Analysis
Defendant Robert Earl Willis, Jr., appeals from an order denying a petition for resentencing of his conviction for violating Penal Code section 484e, subdivision (b) (acquiring access cards) as a misdemeanor.
This is our second opinion in this case. In our first opinion we held that the trial court correctly denied the petition and we affirmed because (1) section 484e was not listed in the relevant statute as one of the felonies for which resignation and resentencing could be sought, and (2) defendant had not proved the value of the access cards he obtained was less than $950. (People v. Willis (Nov. 29, 2016, G051940) [nonpub. opn.], review granted Feb. 15, 2017, S239452.) The California Supreme Court granted defendant’s petition for review, and later transferred the case back to this court for reconsideration in light of People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). We now reverse and remand for further proceedings.
In our earlier opinion, we concluded the trial court had correctly determined it could not grant defendant’s petition because section 484e was not one of the offenses eligible for resentencing under Proposition 47. (People v. Willis, supra, G051940.) The Supreme Court came to the opposite conclusion. “n light of section 490.2’s language and its statutory context—which includes both the other statutory provisions that Proposition 47 enacted and previously existing features of the Penal Code—we conclude that the statute’s unqualified references to ‘obtaining any property by theft’ and ‘any . . . provision of law defining grand theft’ encompass theft of access card information.” ([i]Romanowski, supra, 2 Cal.5th at p. 910.)
As to the value of the access cards, the court in Romanowski held that the value of stolen access card information was not an element of the offense when the petitioner was convicted. (Romanowski, supra, 2 Cal.5th at p. 916.) The court also held that the petitioner bears the burden of proving the value of the access card information. (Ibid.) “In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. . . . But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, 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.’” (Ibid.)
In supplemental briefing following transfer from the Supreme Court, defendant argued, and the Attorney General agreed, defendant did not have the opportunity to present evidence on this issue at the hearing on his petition for resentencing because the court determined his conviction was ineligible for relief as a matter of law. Defendant should have an opportunity to establish the value of the access cards.
Disposition
We reverse and remand the postjudgment order with directions to the trial court to conduct further proceedings on defendant’s petition, consistent with Romanowski and this opinion.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
