Filed 9/26/17 P. v. Cervantes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
GABRIEL CERVANTES,
Defendant and Appellant.
|
F071506
(Fresno Super. Ct. No. F13911203)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Denise Whitehead, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In a felony complaint filed March 19, 2014, defendant was charged with four counts of second degree robbery (Pen. Code, § 211),[1] and one count of receiving stolen property (§ 496, subd. (a).)[2] The complaint also alleged defendant received the stolen property for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and that defendant had suffered a prior serious felony conviction. (§§ 667, subds. (b)–(i); 1170.12, subds. (a)–(d).)
On March 25, 2014, pursuant to a plea bargain, defendant changed his plea on the charge of receiving stolen property from not guilty to nolo contendere. Defendant also admitted the attached gang enhancement (§ 186.22, subd. (b)(1)) and the prior strike. The four second degree robbery counts were dismissed. Defendant was later sentenced to prison for two years four months.
On January 26, 2015, defendant filed an application to reduce his felony conviction for receiving stolen property under Proposition 47.[3]
On April 20, 2015, the court held a hearing on defendant’s request. Because it is short, we reproduce the entire transcript of that hearing below:
“THE COURT:· Gabriel Cervantes, docket ending 203. Appearances, please.
“MS. LUNA [defense counsel]: Irene Luna, ADO. I believe there were two other matters for Mr. Cervantes on calendar. I did only note one additional court file.
“THE COURT: I only have two files for him.
“MR. McWILLIAMS: Keith McWilliams for the People. Waive the original sentencing judge.
“PROBATION OFFICER: Christine Sanchez for Probation.
“THE COURT: There should be another one, though, because he does have three cases. I have 065, and 203, but I don’t have 316.· Let me check the box.· I show this file as being missing. It’s missing, I’m sorry, and the one that’s missing --
“MR. McWILLIAMS: Your Honor, it is a residential [burglary]. We reviewed ours, and it didn’t appear to eligible for a reduction.
“THE COURT: Counsel waive the original sentencing judge?
“MS. LUNA: Yes.
“THE COURT: And 1316 was a residential burglary, so it’s not eligible for a reduction, so it would be denied in that case. [¶] And then People’s position as to count 6 in docket ending 203?
“MR. McWILLIAMS: The People’s position is since there is the gang enhancement on the charge, the gang enhancement is not a listed charge under Prop 47.
“THE COURT: Comments, Counsel?
“MS. LUNA: No, Your Honor, submitted.
“THE COURT: The 186.22(b)(1) was as to count 6, receiving stolen property, so the petition as to that count is denied. Also denied in 065, as that is a 10851(a), which is also not eligible for a reduction.”
Defendant appeals the denial of his application to reduce his receiving stolen property conviction to a misdemeanor.
DISCUSSION
“Proposition 47 reduced a limited number of specified nonviolent crimes … from felonies to misdemeanors. Further, it created certain new misdemeanor crimes that largely overlay certain prior felony crimes.” (People v. Chen (2016) 245 Cal.App.4th 322, 324.) Pertinent here, “Proposition 47 reduced the offense of receiving stolen property from a felony to a misdemeanor where the value of the property does not exceed $950. [Citations.]” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651.)
“In addition, Proposition 47 enacted section 1170.18 which … established procedures for persons who are ‘currently serving a sentence’ for prior felony crimes that are now misdemeanors under the initiative to petition the superior court to recall the felony conviction and sentence, and to be resentenced for the misdemeanor crime.” (People v. Chen, supra, 245 Cal.App.4th at p. 324.) It is the defendant’s burden to show that the crime he seeks to reduce qualifies.
As noted above, defendant asserted he was entitled to resentencing under Proposition 47. The court denied the request on the grounds that there was a gang enhancement attached to the felony conviction. Defendant contends this was erroneous. The Attorney General concedes that Proposition 47 has “no language stating or suggesting that qualifying felonies with gang enhancements are excluded from resentencing ….” We accept this concession. (Cf. People v. Sweeney (2016) 4 Cal.App.5th 295, 302.)
However, the Attorney General argues the denial was nonetheless correct for a different reason:[4] defendant did not carry his burden in showing the value of the stolen property received was less than $950. (See People v. Sherow (2015) 239 Cal.App.4th 875, 879–880.) Defendant adduced no evidence at the hearing (as shown by the transcript, reprinted in full above) concerning the value of the property. Consequently, we agree he failed to carry his burden.
Defendant responds that the boilerplate allegations in his petition were sufficient to carry his initial burden. Specifically, defendant points to his allegation in the petition that he was convicted of a crime that is now punishable as misdemeanor. He argues that sentence necessarily includes an assertion that the value of the stolen property did not exceed $950 because that is the only way the crime would now constitute a misdemeanor. We conclude the boilerplate language is insufficient to carry defendant’s burden. Defendant’s petition listed three cases for which he sought reduction, including the present case for receiving stolen property. The allegation on which defendant relies merely says that “some or all” (italics added) of defendant’s convictions were “for offenses which would now be punishable as misdemeanors ….” This allegation, phrased in the alternative, is insufficient absent any evidence directly related to the value of the property. “In a successful petition, the offender must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. [Citations.] The defendant must attach information or evidence necessary to enable the court to determine eligibility. [Citation.]”[5] (People v. Perkins (2016) 244 Cal.App.4th 129, 136–137, italics added (Perkins).) It is not enough to “submit[] a form that assert[s] … that the value of the property did not exceed $950” when the “factual basis” for that claim is not provided. (Id. at p. 137.) Consequently, we affirm the trial court’s order “without prejudice to subsequent consideration of a properly filed petition.” (People v. Sherow, supra, 239 Cal.App.4th at p. 881.)
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed without prejudice to subsequent consideration of a properly supported petition.
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
[1] All further statutory references are to the Penal Code unless otherwise stated.
[2] The complaint initially charged defendant with street terrorism (§ 186.22, subd. (a)), but defendant’s name was stricken and replaced by another defendant’s name by interlineation.
[3] Defendant also requested reductions in two other cases.
[4] We review the trial court’s ruling, not its reasoning. (People v. Williams (2016) 245 Cal.App.4th 458 [199 Cal.Rptr.3d 755, 758–759] review granted May 11, 2016, S233539.)
[5] Defendant tries to distinguish Perkins on the ground that the prosecution filed a responsive pleading “indicating defendant was not entitled to resentencing because the value of the property exceeded $950.” (Perkins, supra, 244 Cal.App.4th at p. 135.) In contrast, there is no indication the prosecution in the present case filed any responsive pleading putting the value of the stolen property at issue. But Perkins held a “defendant must provide some evidence of eligibility when he files the petition ….” (Id. at p. 137, italics added.) This duty clearly cannot be contingent on the prosecutor filing a responsive pleading contesting the issue of value.
