THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ARTHUR ROOK, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on May 31, 2018, be modified in the following particulars:
1. On page 10, add the following sentences to the end of the paragraph commencing, “In this case. ․”: We have no occasion to consider whether defendant may file another Proposition 47 petition because that issue is not before us. (See Romanowski, supra, 2 Cal.5th at p. 914 [fair market value is the proper standard for valuing stolen property].)
There is no change in the judgment.
The petition for rehearing is denied.
In February 2014, defendant William Arthur Rook pleaded no contest to a number of offenses, including receiving stolen property (former Pen. Code, § 496, subd. (a))1 and possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a)), both felonies. The trial court sentenced defendant to a prison term of 32 months.
In April 2017, defendant filed a petition to have his felony convictions for receiving stolen property and possession of a controlled substance redesignated as misdemeanors pursuant to Proposition 47 (§ 1170.18, subd. (f)). The trial court granted the petition as to the controlled substance possession count, but denied it as to the receiving stolen property count.
On appeal, defendant contends that the trial court erred by denying his petition for redesignation of his receiving stolen property conviction, claiming that the court erred by concluding that the conviction was ineligible for Proposition 47 relief. For reasons that we will explain, we will affirm the trial court's order.
A. The Receiving Stolen Property Conviction 2
On September 2, 2013, San Jose Police Officers observed defendant “driving erratically” on his bicycle. The officers stopped defendant, who initially provided them with a Texas driver's license and a false name. After defendant provided the officers with his true identity, they discovered that defendant was a wanted parolee with outstanding warrants, and they searched him. The officers found .5 grams of methamphetamine, burglary tools, and hypodermic needles. The officers also found numerous credit cards, driver's licenses, benefit cards, a birth certificate, a marriage certificate, a gym membership card, and financial statements. The credit cards and other documents belonged to 13 victims.
On February 11, 2014, defendant pleaded no contest to felony receiving stolen property (former § 496, subd. (a); count 1), felony possession of a controlled substance (former Health & Saf. Code, § 11377, subd. (a); count 2), misdemeanor possession of burglary tools (§ 466; count 3), misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1; count 5), misdemeanor providing a false name to a peace officer (§ 148.9; count 6), felony acquiring or retaining possession of personal identifying information with intent to defraud (§ 530.5, subd. (c)(1); count 7), felony acquiring four or more access cards (§ 484e, subd. (b); count 8), felony acquiring and retaining access card account information with fraudulent intent (§ 484e, subd. (d); count 11), and felony using personal identifying information without authorization (§ 530.5, subd. (a); count 12). Defendant also admitted two prior Health and Safety Code section 11550 convictions, a prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subd. (c)(2)), and a prior prison term allegation (§ 667.5, subd. (b)). The trial court sentenced defendant to a prison term of 32 months.
B. The Petition for Redesignation as a Misdemeanor
In November 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) Proposition 47 “reduced the punishment for several crimes that were previously punished as felonies.” (People v. Romanowski (2017) 2 Cal.5th 903, 906 (Romanowski).) Before Proposition 47, receiving stolen property was generally punishable as either a felony or a misdemeanor. (Former § 496, subd. (a); Stats. 2011, ch. 15, § 372, p. 417.) Section 496 now provides that “if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor.” (§ 496, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant to petition to have his or her felony conviction resentenced to or redesignated a misdemeanor. (§ 1170.18, subds. (a), (b), (f) & (g); Gonzales, supra, at p. 863.)
On April 26, 2017, defendant filed—through counsel—a petition to have his convictions for receiving stolen property (former § 496, subd. (a)) and possession of a controlled substance (former Health & Saf. Code, § 11377) redesignated as misdemeanors pursuant to Proposition 47 (§ 1170.18, subd. (f)). Defendant checked a box on the petition indicating that he requested a hearing only if the petition was opposed.
Defendant included with his petition a copy of the complaint and probation report listing the items found in his possession. Defendant's trial counsel submitted a declaration stating that the items relevant to defendant's receiving stolen property conviction were “numerous credit cards, driver's license[s], [benefit cards], [a] birth certificate, [a] marriage certificate, [a] gym membership [card], and financial statements.” Defendant's trial counsel stated that she was “informed and believes that all these items hold only nominal value ․ [and] the value of the property in connection with [defendant's receiving stolen property conviction] was valued under $950.”
The prosecutor filed written opposition to the petition, objecting to redesignation of the receiving stolen property conviction because there was “[n]o information on value of items.” The prosecutor conceded that the possession of a controlled substance conviction was eligible for redesignation.
C. The Trial Court's Order
On May 18, 2017, the trial court issued an order granting redesignation of the possession of a controlled substance conviction based on the prosecutor's stipulation, but denying redesignation as to the receiving stolen property conviction. The court found that defendant was “not eligible for the requested relief in Count one because only certain charges are affected by the provisions of Penal Code § 1170.18(a) – (b). To be eligible, a conviction must be one that would have been a misdemeanor if the newly added or amended sections ․ 459.5, 473, 476a, 490.2, 496, and 666 of the Penal Code had been in effect at the time the offense was committed. ․ None of those sections authorize misdemeanor treatment of the conviction in Count one and the petition for redesignation of that count is therefore DENIED. Because the petition fails to set forth a prima fac[i]e case of eligibility in that/those count(s), the request for hearing and/or appointment of counsel is also DENIED.”
Defendant contends that the trial court erred by denying his petition for redesignation of his receiving stolen property conviction (former § 496, subd. (a)), claiming that the court erred by concluding that a receiving stolen property conviction is ineligible for Proposition 47 relief. Defendant alternatively argues: (1) that he adequately established the value of the stolen property was less than $950; (2) that he made a prima facie showing that the value of the stolen property was less than $950 and he is entitled to an evidentiary hearing; or (3) that the order should be affirmed without prejudice.
A. Burden of Proof and Standard of Review
On a Proposition 47 petition, the defendant has “the ultimate burden” of proving eligibility for redesignation of a felony conviction as a misdemeanor. (Romanowski, supra, 2 Cal.5th at p. 916.) “For this initial burden under Proposition 47, a petitioning defendant is entitled to present evidence of facts from any source ․ [Citations.]” (People v. Johnson (2016) 1 Cal.App.5th 953, 968 (Johnson).) Where the offense of conviction is a theft crime reclassified based on the value of stolen property, a successful petition includes a “showing the value of the property did not exceed $950. [Citations.]” (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins).) “[T]he petitioning defendant ‘should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he [or she] is eligible for relief.’ [Citation]” (Johnson, supra, at p. 970.)
“We review the trial court's construction of Proposition 47 de novo. [Citation.] We review any factual findings in connection with the court's ruling on the petition for substantial evidence. [Citations.]” (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.) If the defendant fails to meet his or her burden of showing that the value of the property did not exceed $950, the trial court's order denying the petition must be affirmed, even if the trial court expressed a different reason for denying the petition. (Perkins, supra, 244 Cal.App.4th at p. 139.) “[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning. [Citation.] ‘ “[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]” [Citation.]’ [Citation.]” (Ibid.)
B. A Conviction Under Section 496, subdivision (a) is Eligible for Proposition 47 Relief
As defendant contends, and the Attorney General concedes, section 496 is specifically listed as a crime which qualifies for resentencing or redesignation under Proposition 47. (§ 1170.18, subds. (a), (b), (f) & (g).)
C. Determination of the Value of the Stolen Property
Defendant contends that the value of the stolen property—the driver's licenses, credit cards, and other documents—was under $950. He argues that the items had “only slight value amounting to the intrinsic value of the plastic and paper on which ․ they are printed.”
Defendant relies on People v. Caridis (1915) 29 Cal.App. 166, which held that a stolen lottery ticket was “a mere piece of paper” that “possessed perhaps some slight intrinsic value,” even though the lottery ticket had been exchanged for $1,250. (Id. at p. 169.) Defendant also cites United States Rubber Co. v. Union Bank & Trust Co. (1961) 194 Cal.App.2d 703, which held that the plaintiff could not maintain a cause of action for conversion against a bank with respect to a forged check because a forged check “has no value unless accepted.” (Id. at pp. 708-709.) Defendant additionally cites People v. Cuellar (2008) 165 Cal.App.4th 833, which upheld a grand theft conviction because the stolen property, a forged check, had “slight intrinsic value by virtue of the paper it was printed on.” (Id. at p. 839.)
Defendant also cites People v. Bush (2016) 245 Cal.App.4th 992 (Bush) for the proposition that “paper and plastic hold minimal value.” In Bush, the defendant pleaded guilty to three felony counts of receiving stolen property. Each count involved a stolen identification card. (Id. at p. 1006.) The defendant subsequently sought resentencing under Proposition 47, but the trial court denied his petition. The appellate court reversed and remanded the matter back to the trial court for reconsideration, because the defendant's petition was not in the record and thus the appellate court could not determine whether it had “provided information establishing noneligibility” or whether it had “alleged facts requiring an evidentiary hearing on the value of the property at issue.” (Id. at p. 1008.) The Bush court observed that the defendant appeared to have “met his initial burden because the stolen property consisted of identification cards, in which generally the monetary loss to the victim is difficult to quantify as exceeding $950.” (Id. at pp. 1007-1008.)
Our Supreme Court has now spoken on the issue of how to determine the value of a stolen item for purposes of Proposition 47. In Romanowski, the Supreme Court held that the value of a stolen item is “ ‘the reasonable and fair market value’ ” of the item. (Romanowski, supra, 2 Cal.5th at p. 917; see § 484, subd. (a).) The Supreme Court also explicitly rejected the argument that “ ‘the value of a stolen access card is de minimis as a matter of law’ ” and the argument that the value of a stolen credit card should be measured by “the value of the plastic,” since credit cards contain information that can have a much higher market value. (Romanowski, supra, at p. 915.)
Here, defendant was found in possession of driver's licenses, credit cards, and other documents belonging to 13 victims. In his petition for redesignation, defendant's trial counsel submitted a declaration listing the stolen property and stating that based on her information and belief, the items held only nominal value and thus that the total value of the property was under $950. Defendant's trial counsel provided no factual or legal basis for her belief, and she provided no further information about the stolen property. The conclusory statements in her declaration are insufficient to meet defendant's initial burden of providing evidence that shows the value of the stolen property did not exceed $950. (See Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Sweeney (2016) 4 Cal.App.5th 295, 302 [“alleging that the petitioner ‘believes' the property was worth $950 or less is not enough, even if the petition is under penalty of perjury”].)
On this record, because defendant did not present any evidence regarding the value of the stolen property he received beyond his counsel's declaration listing the items and stating her belief that the value did not exceed $950, defendant failed to meet his burden of showing his felony receiving stolen property conviction was eligible to be redesignated as a misdemeanor. (See Romanowski, supra, 2 Cal.5th at p. 916.) Because defendant “did not meet his initial burden in the trial court,” accordingly, he cannot meet his “burden on appeal of establishing trial court error.” (Johnson, supra, 1 Cal.App.5th at p. 970.)
D. Whether an Evidentiary Hearing is Required
Alternatively, defendant argues that he “is entitled to a hearing to further explain and establish the initial assertions made in trial counsel's declaration that the property was worth less than $950.”
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.)
At the time defendant filed his petition for redesignation, our Supreme Court had held that fair market value was the proper standard for valuing stolen property. (See Romanowski, supra, 2 Cal.5th at p. 914.) However, defendant failed to include any information about the fair market value of the stolen property underlying his conviction. Without evidence showing that “the value of the property did not exceed $950” (Perkins, supra, 244 Cal.App.4th at p. 137), there cannot be a “reasonable likelihood that [defendant] is entitled to relief” (Romanowski, supra, 2 Cal.5th at p. 916) and thus an evidentiary hearing is not required.
E. Without Prejudice
Relying on People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), defendant contends that “[i]f this court decides to affirm the trial court's denial of [his] petition,” we should do so without prejudice to him filing another petition. In Sherow, the defendant filed his petition for resentencing as to five counts “without any separate discussion of the counts, no reference to facts or evidence and no argument.” (Id. at p. 877.) The defendant argued that the prosecution had the burden of proving that he was ineligible for resentencing under Proposition 47. (Id. at p. 878.) The Sherow court rejected that argument, holding that it was “entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based.” (Id. at p. 880.) Since the law was unclear as to the burden of proof at the time the defendant filed his petition, the appellate court affirmed the denial of the petition “without prejudice to subsequent consideration of a properly filed petition.” (Id. at p. 881.)
Our Supreme Court also recently indicated that affirmance without prejudice is appropriate where the applicable law was unclear at the time a Proposition 47 petition was filed. In People v. Page (2017) 3 Cal.5th 1175 (Page), the court held that a Vehicle Code section 10851 conviction is “eligible for resentencing under section 1170.18, subdivision (a), if the vehicle was worth $950 or less and the sentence was imposed for theft of the vehicle.” (Page, supra, 3 Cal.5th at p. 1187.) In Page, the defendant's petition was “properly denied” because it “included no allegations, testimony, or record references to show either that his Vehicle Code section 10851 conviction rested on theft of the vehicle or that the vehicle's value was $950 or less.” (Id. at p. 1189.) However, the defendant was entitled to file a new petition, “as the proper allocation of the burden of proof and the facts necessary to resentencing on a Vehicle Code section 10851 conviction were not set out expressly in the text of Proposition 47, and as neither had yet been judicially articulated when defendant submitted his petition for recall. (Ibid.)
In this case, at the time defendant filed his petition, the law was clear as to the burden of proof and as to the proper measurement of value of stolen property. (See Romanowski, supra, 2 Cal.5th at p. 914.) As explained above, defendant failed to meet his burden to show the value of the stolen property was under $950. We will therefore affirm the trial court's order.
The May 18, 2017 order is affirmed.
1. All further unspecified statutory references are to the Penal Code.
2. As defendant was convicted by plea, the summary of his offenses is taken from the probation report.
WE CONCUR: GREENWOOD, P.J. GROVER, J.