Filed 9/27/17 P. v. Harrell CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Joshua Neil Harrell appeals from the trial court’s denial of his motions to reduce his 2010 felony conviction for receipt of stolen property and his 2013 felony conviction for second degree commercial burglary to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act of 2014 (Proposition 47). The trial court denied both motions, concluding defendant was not eligible for relief under Proposition 47. As we explain below, it was defendant’s burden to demonstrate his eligibility for such relief, and he failed to discharge that burden. Accordingly, the trial court properly denied the motions.

FACTUAL AND PROCEDURAL BACKGROUND

On November 15, 2010, pursuant to a negotiated disposition in Solano County Superior Court Case No. FCR280484, defendant entered a no contest plea to one felony count of receiving stolen property (Pen. Code, § 496, subd. (a))[1] and was sentenced to two years in state prison.

On March 14, 2013, pursuant to a negotiated disposition in Solano County Superior Court Case No. FCR292340, defendant entered a no contest plea to one felony count of second degree commercial burglary (§ 459) and was sentenced to 16 months in state prison.

In December of 2014, pursuant to newly enacted Proposition 47, defendant filed companion motions to reduce his 2010 felony conviction for receipt of stolen property and his 2013 felony conviction for second degree commercial burglary to misdemeanors. The trial court denied both motions on the ground defendant was not eligible for relief under Proposition 47. Defendant timely appeals.

DISCUSSION

Proposition 47, enacted by the electorate in November of 2014, reclassified certain drug- and theft-related offenses from felonies or wobblers to misdemeanors, unless committed by an ineligible defendant. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)[2] As pertinent here, Proposition 47 reduced receipt of stolen property under section 496, subdivision (a), to a misdemeanor where the value of the stolen property does not exceed $950. (People v. Perkins (2016) 244 Cal.App.4th 129, 132–133.) Similarly, Proposition 47 reduced second degree commercial burglary under section 459 to the misdemeanor of shoplifting where the defendant “enter[s] a commercial establishment with intent to commit larceny while that establishment is open during regular business hours” and where the value of the property taken or intended to be taken does not exceed $950. (§ 459.5, subd. (a); People v. Sherow (2015) 239 Cal.App.4th 875, 879.)

A defendant seeking to have pre-Proposition 47 felony convictions reduced to misdemeanors bears the burden of proving his or her eligibility for such relief. (People v. Romanowski (2017) 2 Cal.5th 903, 916.) As our Supreme Court explained in Romanowski, “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.’ (§ 1170.18, subd. (b).)^[[3]] 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.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 [citation] [‘A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.’].)” (Ibid.)

In the present matter, defendant’s eligibility to have his 2010 felony conviction for receipt of stolen property and his 2013 felony conviction for second degree commercial burglary reduced to misdemeanors both turn on whether the value of the property at issue exceeded $950. In addition, his eligibility to have his 2013 felony conviction for second degree commercial burglary turns on whether he entered the commercial establishment while it was open during regular business hours. Defendant’s unverified motions do not include any evidence bearing on these factual issues nor do they provide citations to records of conviction that would have directed the trial court to such evidence. (People v. Perkins, supra, 244 Cal.App.4th at p. 137.) Indeed, the motions allege no facts whatsoever beyond the bare fact of the underlying convictions. Under these circumstances, the trial court properly denied the motions without conducting an evidentiary hearing.

We recognize, however, that the requirements governing pleading and proof in requests for relief under Proposition 47 were unsettled at the time defendant submitted his companion motions in December of 2014, less than two months after the electorate enacted the proposition. For this reason, we affirm the trial court’s order denying relief without prejudice to subsequent consideration of properly filed, verified petitions providing evidence of defendant’s eligibility for relief under Proposition 47. (See People v. Perkins, supra, 244 Cal.App.4th at pp. 139–140, 142; People v. Sherow, supra, 239 Cal.App.4th at p. 881.)

DISPOSITION

The trial court’s order denying defendant’s motions is affirmed without prejudice to subsequent consideration of properly filed, verified petitions supplying evidence of his eligibility for relief under Proposition 47 as set forth in Romanowski, supra, 2 Cal.5th at page 916.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

A145086