Filed 9/12/17 P. v. Munoz CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE

Appeal from an order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Reversed and remanded.

Laurel M. Nelson, 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, Meagan J. Beale and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

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This is an appeal from the trial court’s denial of defendant Laura Lee Munoz’s petition pursuant to Penal Code section 1170.18.[1] In her original appeal, while noting the issue was under review at the California Supreme Court, we rejected the contention that her felony conviction for conveying an access card with intent to defraud (§ 484e, subd. (a)) qualified for resentencing under the statute. Further, we concluded that even if it did, defendant had failed to provide evidence sufficient to establish the card’s value was less than $950, the threshold for resentencing under the statute. (People v. Munoz (June 13, 2016, G051446) [nonpub. opn.], review granted Aug. 17, 2016, S235776 (Munoz).) Defendant filed a petition for review, which was granted and held along with numerous other similar cases.

In People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), the Supreme Court held that access card offenses qualify for resentencing under section 1170.18 if the requisite facts are established. On August 16, 2017, the California Supreme Court transferred this case back to us for reconsideration in light of Romanowski. The only question remaining is whether the lack of evidence in the original petition provides sufficient grounds to affirm. We conclude it does not, and that this question requires reconsideration by the trial court.

Our original decision noted defendant’s petition had not included any evidence that the value of the access card was worth less than $950. “The only evidence of the facts of the crime in the record comes from defendant’s plea bargain form: ‘August 21, 2011 I willfully and unlawfully entered Walmart with the intent to steal and did in fact steal merchandise belonging to Walmart and with the intent to defraud conveyed an access card without the consent of the owner and I also possessed the personal property of Patrick M. which had been stolen and I knew it was stolen.’ No additional evidence was offered in conjunction with her petition.” (Munoz, supra, G051446.) Thus, there was no evidence in the record regarding the value of the access card.

As Romanowski noted, however, the value of the stolen information was not an element of the offense at the time Munoz was convicted. (Romanowski, supra, 2 Cal.5th at p. 916.) Thus, it is not especially surprising that the record did not include evidence or facts relating to the value of the card.

Romanowski also held that while the petitioner has the burden of proving the relevant factual basis for resentencing, a hearing may be required to establish those facts. “The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. [Citation.] In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, ‘the petitioner’s felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ [Citation.] 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.’ [Citations.]” (Romanowski, supra, 2 Cal.5th at p. 916.)

Accordingly, defendant should have an opportunity to establish the value of the stolen access card information, and we reverse and remand for further proceedings consistent with Romanowski and this opinion.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

THOMPSON, J.