Opinion
H042159
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LOPEZ DELGADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1371498)
Defendant Daniel Lopez Delgado appeals from an order denying his petition to recall his felony sentence for receiving stolen property (Pen. Code, former § 496, subd. (a)) and to resentence him for a misdemeanor pursuant to section 1170.18. Defendant contends: the trial court erred in finding that he had not stated a prima facie case for relief; and he was denied his right to have the original sentencing judge consider his petition. The order is affirmed.
All further statutory references are to the Penal Code. --------
I. Statement of the Case
In December 2013, the Santa Clara County District Attorney filed a complaint charging defendant with receiving stolen property (former § 496, subd. (a) - count 1) and second degree burglary (§§ 459, 460, subd. (b) - count 2).
In February 2014, defendant pleaded no contest to receiving stolen property and admitted violating probation in another case. In April 2014, the trial court dismissed count 2, suspended imposition of sentence, and placed defendant on probation for three years with various conditions, including six months in county jail.
Following a violation of probation, the trial court sentenced defendant to the mitigated term of 16 months in county jail. The trial court stated that it was "selecting the mitigated term, because the amount of damage of [$]1,050, which is only $100 over that which would have been a misdemeanor."
In February 2015, defendant filed a petition for resentencing pursuant to section 1170.18. The trial court denied the petition on the ground that defendant had failed to allege that the value of the property did not exceed $950. The trial court also noted that the probation report indicated that the value of the stolen copper pipes was estimated to be $1,050.
II. Statement of Facts
At approximately 12:05 a.m. on December 16, 2013, an officer saw defendant in a truck on the shoulder of the road. The truck's lights were flashing. The officer then saw defendant run through a hole in the fence of Agnews Developmental Center. A few minutes later, defendant and another man loaded a bundle of several pipes into the truck, entered the truck, and left.
After defendant failed to stop at a red light, the officer initiated a traffic stop. The officer observed "several bundles of copper piping taped together and bundles of assorted wires in the bed" of the truck. The officer asked defendant where the pipes had come from and defendant said that he did not know. When the officer told defendant that he had seen him load the pipes into the truck, defendant stated that he was told to pick up the codefendant and he would be paid $100. The codefendant said that both he and defendant removed the pipes from one of the buildings inside Agnews Development Center.
III. Discussion
A. Eligibility for Resentencing
Defendant contends that the trial court erred when it denied his petition for resentencing.
The Safe Neighborhoods and Schools Act (Proposition 47, as approved by the voters, Gen Elec. (Nov. 4, 2014)) added section 1170.18, which became effective on November 5, 2014. Among other things, Proposition 47 reduced certain theft and drug possession felonies to misdemeanors. (§ 1170.18, subd. (a).) Before Proposition 47, receiving stolen property was punishable as either a felony or a misdemeanor, without regard to the value of the stolen property. (Former § 496, subd. (a); Stats. 2011, ch. 15, § 372, p. 417.) As currently enacted, violating former section 496 "shall be a misdemeanor" if the value of the stolen property does not exceed $950. (Former § 496, subd. (a).) Section 1170.18 also created a resentencing provision by which a person serving a felony sentence for an offense that is now a misdemeanor may petition for recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. (§ 1170.18, subd. (a).)
"[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) If the crime under consideration is a theft offense, " 'the petitioner will have the additional burden of proving the value of the property did not exceed $950.' [Citation.]" (Id. at p. 879.) The petitioner for resentencing has the "initial burden of proof" to "establish the facts upon which his or her eligibility is based." (Id. at p. 880.)
Here, defendant's petition stated that he had been convicted of former section 496, subdivision (a) and that no claim for restitution had been made. He did not include any information as to the value of the stolen pipes. Nothing in the record indicates that the value of the pipes was worth $950 or less. Thus, defendant failed to meet his burden of establishing his eligibility for resentencing under section 1170.18.
Defendant acknowledges that he did not state the value of the stolen property in his petition for resentencing. But he argues that he was referencing the value of the property by citing that no claim was made by the victim. There is no merit to this argument. That the victim did not seek restitution does not indicate that the value of the stolen property was less than $950.
Defendant also notes that he filled out and filed "the standard Santa Clara County Superior Court form entitled Petition for Resentencing or Redesignation of Offenses," which "had no entry provision which would allow [him] to state the basis for his claim . . . ." He points out that this form has since been revised and requires only that a box be checked that the value of the stolen property does not exceed $950. Regardless of the form used by defendant, it was his burden to establish his eligibility for resentencing.
Defendant next claims that the court improperly considered matters outside the record of conviction when it referred to the value of the stolen property in the probation report. In People v. Johnson (2016) 1 Cal.App.5th 953, the Court of Appeal held that the trial court is not limited to considering the record of conviction in determining a defendant's initial eligibility for resentencing under Proposition 47. The Johnson court explained: "[U]nder Proposition 47 the relevant inquiry for purposes of establishing a petitioning defendant's initial eligibility is 'guilt [] of a misdemeanor' (§ 1170.18, subd. (a))—which often cannot be established merely from the record of conviction of the felony. This is because, prior to Proposition 47, where a defendant was convicted of certain drug- or theft-related felonies, the facts necessary to establish that the petitioning defendant was guilty either of a misdemeanor added by Proposition 47 or of a felony reduced to a misdemeanor by Proposition 47 likely would have been irrelevant in charging the defendant with the pre-Proposition 47 felony. Stated differently, since Proposition 47 created misdemeanors either that did not exist previously (e.g., § 459.5 [shoplifting]) or that were felony offenses with different showings required (e.g., § 496, subd. (a) [receiving stolen property]), there is no reason to believe that the electorate intended to limit the resentencing court's review to the petitioning defendant's record of conviction. [Citation.]" (Id. at pp. 966-967, fn. omitted.) However, even assuming that the trial court could not consider the probation report as evidence of the value of the property, it was defendant's burden to present a prima facie showing of eligibility for resentencing.
B. Right to Have Petition Considered by Sentencing Judge
Defendant contends that he was entitled to have his petition considered by the original sentencing judge.
In January 2015, the Honorable David A. Cena sentenced defendant. The Honorable Linda R. Clark denied defendant's resentencing petition without a hearing.
Section 1170.18 provides in relevant part: "(a) A person . . . serving a sentence for a conviction . . . may petition . . . before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . . [¶] . . . [¶] (l) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application." (§ 1170.18, subds. (a), (l).)
Defendant has failed to establish that Judge Cena was available to rule on his petition or that the presiding judge failed to comply with section 1170.18, subdivision (l) by designating Judge Clark to hear the petition. Thus, he has failed to establish error. Moreover, since defendant failed to make a prima facie showing that he was eligible for resentencing, he was not prejudiced by any error in the judicial assignment.
IV. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.