Opinion
C079425
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KEITH CRAWFORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 99F04963)
Defendant Brian Keith Crawford appeals from the trial court's denial of his Proposition 47 resentencing petition. (Pen. Code, § 1170.18; unless otherwise set forth, statutory section references that follow are to the Penal Code.) He contends the court erred in determining he was ineligible for relief based on his petition, he was entitled to be represented by counsel at the resentencing proceedings, and the court's ruling was not supported by substantial evidence. We affirm the trial court's order.
FACTS AND PROCEEDINGS
"As Mary R. was returning home for lunch on June 14, 1999, she observed defendant, whom she had never seen before, walking along the street looking into the windows of two nearby houses. A moped was parked in front of one of the houses. She lost sight of defendant when he walked behind a garage.
"While eating lunch, Mary R. became suspicious of defendant's conduct. Thus she drove back toward the houses where she had seen him. When she saw that the gate between the houses was open, she returned home and called 911. While waiting for officers to come, she saw defendant walk out from the area of the houses. He was wearing or carrying gloves and went to the moped. Defendant then obtained a bag and walked back to the front of one of the houses, where Mary R. lost sight of him.
"As Mary R. was leaving her home to get the license number of the moped, Deputy Sheriff Jerry Bufford drove up. While Mary R. was telling Bufford about her observations, defendant drove off on the moped with "stuff in his possession." Bufford and other officers gave chase and stopped defendant. In his pockets were 14 gold chains and 18 gold rings. A duffel bag that he was carrying contained a video cassette recorder, a small stereo system, headphones, and camera equipment. He also possessed a pair of gloves.
"James C., the owner of one of the residences where Mary R. had seen defendant, identified all of the items, except the gloves and duffel bag, as having been stolen from his residence, which had been entered by a person who damaged the screen to a bedroom window that had been left partly open.
"Approximately one week after the burglary, James C. received a letter that defendant had mailed from the county jail. It stated: 'Well I was laying in my bed last night reading "Revelation" in my Bible, and something came over me, and told me to write you and tell you that I'm sorry for what you've went through on the 14th of June and I pray that you would please forgive me.' " (People v. Crawford (Jan. 30, 2002, C036567) [nonpub. opn.] at pp. 2-3 (Crawford).)
A jury convicted defendant of first degree burglary (§§ 459, 460) and receiving stolen property (§ 496, subd. (a)), and sustained four strikes and two prior prison term allegations (§§ 1170.12, 667.5, subd. (b)). (Crawford, supra, at p. 1.) He was sentenced to 36 years to life. (Ibid.) We affirmed his conviction in an unpublished opinion. (Id. at p. 2.)
Defendant, without the assistance of counsel, subsequently filed a petition for resentencing on his conviction for receiving stolen property. The petition failed to set forth any allegations or supporting evidence regarding the value of the stolen items defendant received. The People filed a response requesting the trial court to examine the petition and the court file to determine whether defendant was eligible for resentencing. The trial court summarily denied the petition, finding the receiving conviction was ineligible for resentencing. The form denial included a handwritten note, "jewelry - lots, coins, stereo, vcr."
DISCUSSION
I
The Petition
Section 1170.18, subdivision (a) provides: "A person [currently] serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ."
Section 1170.18 was enacted as part of Proposition 47, which reduced many crimes from felony to misdemeanor. As pertinent to this case, Proposition 47 amended section 496, which states in pertinent part: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290." (§ 496, subd. (a).)
Defendant contends the trial court erred in finding him ineligible for resentencing based on his petition. He notes that the form provided by Sacramento County did not contain a space for explaining the value of the stolen items. Defendant argues that, since he was not provided with counsel during these proceedings, assigning him the burden of proof in establishing the value of the stolen property violates his right to due process of law. Asserting that the value of the relevant items in his case is "speculative," he concludes that the trial court's denial of his petition was error.
Proposition 47 is silent as to the burden of proof. "Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, § 500.) Defendant, as the petitioner in resentencing proceedings, therefore had the burden of proving that the value of the stolen items did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449 (Rivas-Colon).)
The fact that defendant did not have counsel to assist him in preparing the petition is of no consequence in the allocation of the burden of proof. The burden of proof "is an evidentiary concept." (People v. Esparza (2015) 242 Cal.App.4th 726, 743.) It is "the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." (Evid. Code, § 115.) As the petitioner seeking relief, defendant bore the burden of establishing the evidentiary basis for his eligibility. And as we explain in part II of this opinion, infra, defendant did not have the right to counsel at the eligibility stage of these proceedings. Whether he had the assistance of counsel in preparing the petition does not shift the burden.
Defendant's attempt to distinguish Sherow is equally unavailing. While, as defendant points out, the trial court that denied the petition in Sherow found the value of the stolen items exceeded $100,000 (Sherow, supra, 239 Cal.App.4th at p. 877), this had no bearing on the issue of the burden of proof. "Applying the burden to Sherow would not be unfair or unreasonable. He knows what kind of items he took from the stores in counts 1 and 2. At the time of trial it was not necessary for the prosecution to prove the value of the loss to prove second degree burglary. Thus there is apparently no record of value in the trial record." (Id. at p. 880.)
In People v. Perkins (2016) 244 Cal.App.4th 129 (Perkins), the defendant was convicted of several offenses, including felony receipt of stolen property (§ 496, subd. (a)) for receiving a stolen credit card. (Perkins, at pp. 133-134.) The defendant subsequently filled out a form requesting section 1170.18 resentencing on the conviction and submitted it to the superior court. (Perkins, at p. 135.) The petition "state[d] the value of the stolen property did not exceed $950. However, [defendant] did not identify the stolen property or attach evidence, a declaration, or include citations to the record of conviction to support the assertion that it did not exceed $950 in value." (Ibid.) The trial court denied the petition in an order that stated "only that defendant has 'multiple residential burglaries [¶] 459 1st degrees—11378 HS—496 PC with losses over $950—all not qualifying.' " (Ibid.) The trial court did not explain the basis of its finding that the stolen property exceeded $950 in value. (Ibid.)
On appeal, the defendant contended there was insufficient evidence that the value of the stolen item exceeded $950 to support the denial. (Perkins, supra, 244 Cal.App.4th at p. 135.) The Court of Appeal found that the defendant bore the burden of establishing eligibility for resentencing. (Id. at p. 136.) Accordingly, "[i]n 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.]" (Id. at pp. 136-137.)
The defendant in Perkins failed to meet this burden. "Defendant did not meet his burden in this case. Defendant submitted a form that asserted he was convicted for receipt of stolen property and that the value of the property did not exceed $950. But he did not indicate anywhere on the form the factual basis of his claim regarding the value of the stolen property. He did not describe the stolen credit card that provided the basis for the receiving stolen property count or even indicate that the credit card was the sole basis for the conviction. He did not address the trial evidence indicating he also possessed other items along with the credit card, all stolen from the same victim. Nor did he provide citations to the record of conviction that would have directed the superior court to such evidence. The petition provided no information whatsoever on the nature and value of the stolen property to aid the superior court in determining whether defendant is eligible for resentencing. As a result, defendant did not provide the superior court with information that would allow the court to 'determine whether the petitioner satisfies the criteria in subdivision (a).' [Citation.] We conclude defendant's petition did not meet his burden of providing evidence to establish he is eligible for resentencing on his receiving stolen property conviction." (Perkins, supra, 244 Cal.App.4th at p. 137.)
As in Perkins, defendant petitioned for resentencing on his receiving stolen property conviction by filling out the local form for section 1170.18 petitions. Defendant made no allegations and submitted no evidence regarding the critical fact for establishing his eligibility, whether the property that formed the basis of his receiving conviction was worth $950 or less. In Perkins, the Court of Appeal found that the defendant failed to meet his burden of proof and therefore was not entitled to relief from the trial court's denial of his petition. The Perkins court also found that trial courts could, as was done in this case, deny such deficient petitions without a hearing. "Faced with such a petition, a superior court often will be able to grant or deny relief without a hearing." (Perkins, supra, 244 Cal.App.4th at p. 138.)
Perkins also addressed potential deficiencies in the forms provided for section 1170.18 petitions. "We recognize, however, that defendant may have been misled about the requirements of petitioning for relief under Proposition 47. Though Evidence Code section 500 establishes petitioners have the burden of establishing eligibility, Proposition 47 itself is silent on the point and the courts had not made the connection explicit until after defendant had filed his petition. Moreover, Proposition 47 is silent as to the submission of evidence or information to support an application for resentencing. In addition, the form defendant used to petition includes no space for and no directions to include evidence or information regarding the value of stolen property. Even the revised form the superior court now provides omits any discussion or directions about submitting evidence. [Citation.] In short, when defendant filed his petition, the ground rules were unsettled. For that reason, we follow the court in Sherow in affirming the order denying the petition 'without prejudice to subsequent consideration of a properly filed petition.' [Citation.] In any new petition, 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.)
Defendant has not given us any reason to depart from Perkins. Since defendant's petition contained no evidence or allegations regarding the value of the stolen items, the trial court correctly denied the petition without holding a hearing. As in Perkins, defendant is free to file another petition supported by evidence supporting his eligibility for relief.
II
Right to Counsel
Defendant claims he was entitled to the assistance of counsel as a matter of due process.
The United States Constitution and the California Constitution grant a criminal defendant the right to assistance of counsel in his defense. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) This right to counsel "applies at all critical stages of a criminal proceeding in which the substantial rights of a defendant are at stake." (People v. Crayton (2002) 28 Cal.4th 346, 362.) Sentencing is a critical stage of a criminal proceeding. (People v. Doolin (2009) 45 Cal.4th 390, 453.) But posttrial motions for sentence modification or reduction have been held not to implicate the Sixth Amendment right to counsel. (See, e.g., United States. v. Webb (11th Cir. 2009) 565 F.3d 789, 794-795 [motion pursuant to 18 U.S.C. § 3582 seeking reduction in sentence based on postsentencing amendments to federal sentencing guidelines]; United States v. Reddick (2d Cir. 1995) 53 F.3d 462, 465 [same]; United States v. Taylor (4th Cir. 2005) 414 F.3d 528, 530 [motion to reduce a final sentence pursuant to Fed. Rules Crim. Proc., rule 35(b), 18 U.S.C.]; United States v. Palomo (5th Cir. 1996) 80 F.3d 138, 142-143 [same]; United States v. Whitebird (5th Cir. 1995) 55 F.3d 1007, 1011 [no Sixth Amendment right to counsel in connection with motion for modification of sentence under 18 U.S.C. § 3582(c)(2) because "the constitutional right to counsel extends only through the defendant's first appeal"].)
Defendant relies on People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse). Rouse held that a defendant who was found eligible for resentencing under section 1170.18 was entitled to counsel at the resentencing hearing. (Rouse, at p. 295.) The Court of Appeal was careful to distinguish the eligibility phase of section 1170.18 proceedings. "This case presents a separate issue. Defendant passed the eligibility stage. The court ruled his petition was meritorious and he was entitled to be resentenced. The court then vacated defendant's original sentence in its entirety and proceeded with sentencing defendant anew, including on the non-Proposition 47 counts. At this point, defendant argues the proceeding was akin to a plenary sentencing hearing at which his substantial rights were in jeopardy without the assistance of counsel. Respondent contends that defendant's substantial rights were not in jeopardy because he did not face the prospect of a greater sentence, and he stood only to gain from a possible reduction in his sentence." (Rouse, at p. 299; italics omitted.) The court held that the defendant had a right to counsel during the resentencing proceeding.
The Rouse court also noted the similarities between sections 1170.18 and 1170.126, the resentencing provision enacted as part of Proposition 36. (Rouse, supra, 245 Cal.App.4th at p. 298; see also, People v. Scarbrough (2015) 240 Cal.App.4th 916, 924.) Courts interpreting section 1170.126 declined to apply Sixth Amendment protections to the eligibility stage proceedings under that provision. The resentencing provision of Proposition 36 "is not constitutionally required, but an act of lenity on the part of the electorate. It does not provide for wholesale resentencing of eligible petitioners. Instead, it provides for a proceeding where the original sentence may be modified downward. Any facts found at such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues. Thus, there is no constitutional requirement that the facts be established beyond a reasonable doubt." (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305.) Courts of Appeal have applied this reasoning to section 1170.18 eligibility proceedings. (See, Rouse, supra, 245 Cal.App.4th at p. 299; see also People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 451-452 [no 6th Amend. right to jury trial on facts to establish eligibility for resentencing under § 1170.18].)
We decline to extend the right to counsel to the eligibility stage of section 1170.18. As with section 1170.126, section 1170.18 is an act of lenity from the electorate. It is a provision allowing for a collateral attack on part of a defendant's conviction. Until a defendant is found eligible for resentencing, he or she has no right to the assistance of counsel.
III
Insufficient Evidence
Defendant's final contention is that there is insufficient evidence to support the trial court's finding. As previously stated, defendant bore the burden of establishing his eligibility, and the trial court correctly denied the petition because it presented no evidence of the value of the stolen items. His claim is therefore without merit.
DISPOSITION
The judgment (order) is affirmed without prejudice to defendant filing a successive petition that supplies evidence of his eligibility for resentencing.
HULL, Acting P. J. We concur: MAURO, J. HOCH, J.