Filed 9/12/18 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Edward W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

We appointed counsel to represent defendant Juan Manual Hernandez on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf.

That period has passed, and we have received no communication from defendant.

We quote portions of our unpublished opinion filed September 27, 2017:

“In July 2013, J. Ramos parked his car at the rear of his apartment complex. The car was a 1997 Acura Integra, which Ramos had purchased earlier in 2013 for $3,200. The following morning, Ramos discovered that his car was missing and called the police. Five or six days later, a police officer saw Hernandez driving the car. When the officer looked inside the car, he saw that the steering column had been broken and someone had punched out the ignition.

“In August 2014, a jury convicted Hernandez of two felonies and one misdemeanor: 1) receiving a stolen vehicle ([Pen. Code,] § 496d)^[[1]^]; 2) unlawfully driving or taking a vehicle (Veh. Code, § 10851); and 3) driving a vehicle without a license (Veh. Code, § 12500, subd. (a)). Hernandez admitted a prior strike conviction. The trial court imposed an aggregate sentence of seven years, four months. Hernandez appealed from the judgment (G050943). The court also terminated Hernandez’s probation in an unrelated case and he later appealed from that judgment as well (G052606).

“In March 2016, Hernandez filed a petition to reduce his felony convictions to misdemeanors under [the Safe Neighborhoods and Schools Act (Proposition 47)]. He argued that if a stolen vehicle is valued at $950 or less, a petitioner convicted of either Vehicle Code section 10851 or section 496d is eligible for relief under section 1170.18, subdivision (a).” (People v. Hernandez (Sept. 27, 2017, G050943, G052606, G053574) [nonpub. opn.].)

In our September 27, 2017 unpublished opinion in this case, because of some confusing circumstances we found in the record and out of an abundance of caution, we reversed the trial court’s denial of defendant’s petition to have his convictions reduced from felonies to misdemeanors. We remanded the matter with directions to allow defendant to file a new petition under Proposition 47.

On March 27, 2018, the trial court conducted a second eligibility hearing under section 1170.18. Defendant was present at the hearing. The court accepted into evidence the trial transcript of the owner of the vehicle stolen by defendant, stating he paid $3,200 for the car. At the end of the hearing, the court was “convinced that the vehicle in question, the 1997 Acura, was valued more than $950 based on all the evidence, including the sworn testimony of the victim in the case.” The court denied defendant’s petition for reclassification of his felonies as misdemeanors pursuant to section 1170.18, subdivision (a).

Proposition 47 permits defendants to petition the court to have some felonies reduced to misdemeanors. (§ 1170.18, subd. (a).) A defendant is eligible for resentencing if the value of a stolen vehicle is $950 or less. (§ 490.2, subd. (a); People v. Page (2017) 3 Cal.5th 1178, 1178.)

If a court makes a factual finding in a Proposition 47 eligibility hearing, that ruling is reviewed for substantial evidence. (People v. Hallam (2016) 3 Cal.App.5th 905, 911.) Ramos’s previous testimony that he paid $3,200 for his vehicle is circumstantial evidence that its value exceeded $950 at the time of the theft. Under the circumstances we find in this record, we conclude substantial evidence supports the court’s denial of defendant’s petition.

We have examined the record and found no arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.