Opinion
E069489
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. DENISE LOUISE BURNS, Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB054454) OPINION APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Denise Louise Burns pled guilty to one count of receiving stolen property. (Pen. Code, § 496, subd. (a), count 2.) In exchange, a trial court dismissed a count of forgery. (§ 475, subd. (c), count 1.) Pursuant to the agreement, the court sentenced her to two years in state prison. Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among other things established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.) Defendant filed a petition for resentencing, pursuant to section 1170.18. The trial court found her ineligible for relief and denied the petition. Defendant now appeals. We affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
PROCEDURAL BACKGROUND
On February 9, 2006, defendant was charged by felony complaint with forgery (§ 475, subd. (c), count 1) and receiving stolen property (§ 496, subd. (a), count 2). The complaint also alleged that defendant had served two prior prison terms. (§ 667.5, subd. (b).)
Defendant entered a plea agreement on September 14, 2007, and pled guilty to receiving stolen property. (§ 496, subd. (a), count 2.) In accordance with the plea agreement, the court dismissed the remaining count and allegations and sentenced her to two years in state prison.
On February 2, 2017, defendant filed a Proposition 47 petition to have her felony conviction redesignated as a misdemeanor. She attached a supplemental petition simply alleging that the value of the stolen property received was less than $950. The People filed a response to the petition stating that defendant was not entitled to relief because the amount of stolen checks cashed was $1,900.
On September 29, 2017, the court held a hearing on defendant's petition. At the outset, the court stated that it received the petition and reviewed the police report, which indicated that the amount of loss was $1,908. The court noted that the defense had requested a hearing to contest this issue, since it believed the amount of loss was less than $950. The court further noted that the defense submitted a couple of pages from the police report, which were marked as exhibit 1. Defense counsel stated that the court was authorized to consider the police report. He then cited People v. Salmorin (2016) 1 Cal.App.5th 738, 744 (Salmorin) and People v. Perkins (2016) 244 Cal.App.4th 129 (Perkins) and stated that the court could consider any evidence.
Defense counsel asserted that defendant pled guilty to receiving stolen property, and the complaint alleged that the stolen property was a California driver's license and bank checks. Defense counsel further stated that he provided an attachment, which consisted of a check made out to Target in the amount of $257.13, a blank check (No. 1035) and another blank check (No. 957). He noted the police report did state an officer reviewed a surveillance video that showed two checks being written for $954. However, there were no photocopies of the checks and no indication the victim lost $954 from her bank account. Counsel conceded that if defendant had been convicted of forgery or grand theft, she would not be eligible to seek relief under Proposition 47 since the amount of the check(s) was over $950. However, defendant pled guilty to receiving stolen property, and there were no photocopies of the checks cashed. He concluded that defendant was only in possession of blank checks, credit cards, and a driver's license, which were of de minimis value.
The prosecutor responded that defense counsel failed to mention the police report showed that defendant was also in possession of $3,400 in cash. Therefore, it made sense there were no copies of the checks, since defendant had already cashed them and received the value of them. The prosecutor further asserted that this was a felony plea, and the parties stipulated to using the police report as a factual basis for the plea. The prosecutor argued that defendant should not be allowed to point to only certain parts of the police report and ask the court to ignore the other evidence which showed she was guilty.
Defense counsel replied that the $3,400 in cash was defendant's winnings from the casino, and the police report included tax forms indicating the amounts of the winnings. He then reiterated that defendant was convicted of receiving stolen property, and the court was limited to considering what was stolen, which were checks.
After the matter was submitted, the court noted that the police report stated the police discovered that defendant used checks belonging to the victim to withdraw $1,908 at the casino, and the transactions were caught on surveillance video. The officer reviewed the video, which showed defendant cashing two checks, each for $954, at the cashier's cage. The officer confirmed that the person in the video was defendant. The video showed defendant filling out the "pay to order" and amount sections of the victim's checks, as it appeared the signature portion had already been filled out. The court concluded that the crime involved two separate checks in the amount of $954, which totaled $1,908. It therefore found the amount of loss exceeded $950 and denied the petition.
ANALYSIS
The Trial Court Properly Denied Defendant's Petition for Relief
Defendant claims she presented clear evidence that the value of the stolen property did not exceed $950, and simply asserts that the value of the stolen property on her person "was negligible when one considers the actual fair market value of the blank checks, credit cards, and driver's license." We conclude that the court properly denied her petition.
A. 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. (People v. Romanowski (2017) 2 Cal.5th 903, 916.) "[A]n evidentiary hearing may be 'required if . . . the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (Ibid.) 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." (Perkins, supra, 244 Cal.App.4th at pp. 136-137.)
"We review a '[superior] court's legal conclusions de novo and its findings of fact for substantial evidence.' " (Perkins, supra, 244 Cal.App.4th at p. 136.) 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. (Id. at p. 139.) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning." (Ibid.) " ' "[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." ' " (Ibid.)
B. The Court Properly Found the Stolen Property Was Worth More Than $950
Defendant asserts that she was found in possession of a stolen wallet that contained a driver's license, credit cards, two stolen checkbooks, and one stolen check that was written to Target for $257.31. She contends the value of these items does not exceed $950 "when one considers their face value and actual market value." She then states that the checks, license, and credit cards are only worth the paper they are printed on, which is negligible.
In her opening brief, she states that the check to Target was in the amount of $207.31. However, at the hearing on the petition, defense counsel asserted that he provided the court with a copy of the check to Target in the amount of $257.31.
Defendant failed to meet her burden of proof. A "defendant should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief." (Perkins, supra, 244 Cal.App.4th at p. 140.) The evidence defendant presented showed she was in possession of two blank checks, a check to Target, credit cards, and a driver's license, and she simply concluded that these items were of de minimis value. She did not present any evidence of the value of the stolen property. Furthermore, even though defendant agreed the court could consider the police report, she essentially discounted the portion in the report reflecting that she used checks stolen from the victim to obtain cash. The officer observed the surveillance video showing that defendant cashed two of the victim's checks, which were presumably from the stolen checkbooks she received. The checks were written in the amounts of $954 each. Thus, the evidence showed the value of the stolen property was $1,908. In other words, the fact that defendant was able to successfully cash the stolen checks was clear evidence they were worth their written value of $954. (See People v. Lowery (2017) 8 Cal.App.5th 533, 541, review granted April 19, 2017, S240615.) Therefore, as the trial court concluded, defendant's crime involved two stolen checks in the amount of $954, which totaled $1,908. Since the evidence showed the value of the stolen property was over $950, the court properly denied the petition.
We note that defendant asserts she denied being the person shown in the surveillance footage. However, the police officer positively identified her as the person in the video.
A published opinion for which the Supreme Court has granted review may be cited for persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1).) --------
Defendant argues that it was improper to allow the prosecution to rely on "extraneous evidence that was unrelated to [her] conviction for receiving stolen property because the evidence was not relevant." She specifically contends that she never admitted to forging the checks as part of her plea agreement and, therefore, the allegations of such conduct in the police report should have been disregarded by the trial court in assessing the value of the stolen checks. Defendant relies on Perkins, supra, 244 Cal.App.4th 129, in support of her position. However, that case is distinguishable. In Perkins, a jury found the defendant guilty of receiving stolen property and two counts of burglary, among other charges. The basis of the receiving stolen property count was the defendant's possession of a credit card belonging to the victim. (Id. at p. 134.) The defendant filed a Proposition 47 petition asking for resentencing on his receiving stolen property conviction, but he did not identify the stolen property or attach evidence to support the assertion that it did not exceed $950 in value. The trial court denied the petition, but did not explain the basis of its finding the stolen property exceeded $950. (Id. at p. 135.) On appeal, the defendant argued that the court denied his petition without sufficient evidence that the credit card he was convicted of receiving exceeded $950 in value. (Ibid.)
Defendant here focuses on one small part of Perkins to support her claim. She points out that the People in Perkins wanted this court to affirm the trial court's denial of the defendant's Proposition 47 petition based on his possession of items other than the stolen credit card. (Perkins, supra, 244 Cal.App.4th at p. 140.) This court declined to do so, stating that the evidence related to the other property was irrelevant to the determination of the value of the stolen credit card. (Ibid.) We concluded that the defendant failed to meet his burden of providing evidence to establish his eligibility for relief. We affirmed the order denying the petition; however, we did so without prejudice to consideration of a subsequent petition. (Id. at pp. 137, 142.)
Unlike Perkins, the evidence the court considered here was relevant to the determination of the value of the stolen property (the bank checks). Defendant appears to be arguing that the evidence of her cashing the checks on the surveillance video would only support a forgery conviction, and was therefore irrelevant. However, although such evidence would support a forgery conviction, it was also relevant to the receiving stolen property conviction, since it demonstrated the value of the stolen checks. (See ante.)
In view of the record, we conclude that the court properly denied defendant's Proposition 47 petition, as she failed to establish her eligibility for relief.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.