Opinion
F071155
01-19-2017
THE PEOPLE, Plaintiff and Respondent, v. JOVON JACKSON, Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF137473A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael B. Lewis, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs, Lewis A. Martinez, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Jovon Jackson pleaded guilty to possession of stolen property with several prior convictions and received a state prison sentence. Later, he filed a petition for recall of sentence under Proposition 47, contending the stolen property had a value of $950 or less and therefore, under the new law, the offense was a misdemeanor and he should be resentenced accordingly. The trial court denied the petition. Jackson argues now that the People had the burden of showing the value was $950 or more and that the record was insufficient to show this. He also claims he was improperly denied the right to be present at the hearing, his counsel at the hearing was ineffective, and the hearing should have been an "evidentiary" one.
In the time since the briefing was completed in this case, a handful of Court of Appeal opinions has been issued providing guidance on evidentiary burdens and related matters for petitions to recall sentences under Proposition 47 where the issue is whether the value of property was more than $950. Applying these cases, we conclude Jackson had the initial burden of showing the value was $950 or less and did not carry this burden. At the time of the hearing, however, there was little guidance available to the court and parties on burdens and how to carry them under Proposition 47. We will affirm the trial court's order without prejudice to Jackson's right to file a new petition attempting to meet his initial burden. We reject Jackson's arguments about the effectiveness of his counsel, the right to be present, and the character of the hearing.
FACTS AND PROCEDURAL HISTORY
At the preliminary hearing on July 19, 2011, the People presented evidence of the following events. On July 1, 2011, around 9:00 p.m., a Bakersfield police officer pulled over a car for a traffic enforcement stop. Jackson was driving and his codefendant, Tyrell Dickerson, was a passenger. The officer searched the car and found a 50-inch Samsung television set, an HP laptop computer, an Apple MacBook computer, a Sony PlayStation 3 console, three PlayStation 3 games, some Nintendo Wii games, a red duffle bag, a black duffle bag, two Microsoft X-Box games, an Amazon Kindle device, a GPS unit, 29 DVDs, some clothing, some shoes, and a screwdriver. The officer opened the MacBook and saw the name of Michael George on the login screen. The same night, Michael George called the police and reported that his apartment had been burglarized. Taken were a television set, two laptop computers, a PlayStation 3 console, two duffle bags, and some video games. The property found in the car driven by Jackson was shown to George. George identified as his the Samsung television set, the MacBook, the HP laptop, the PlayStation console, the PlayStation games, the Wii games, and the red and black duffle bags.
The district attorney filed an information charging Jackson and Dickerson with first-degree burglary (Pen. Code, § 460, subd. (a)) and receiving stolen property (§ 496, subd. (a)). The information alleged three prior convictions for Jackson: burglary (§ 460, subd. (a)) in 2001; being an active member of a criminal street gang (§ 186.22, subd. (a)) in 2005; and receiving stolen property (§ 496, subd. (a)) in 2010. The prior robbery and street-gang-participation convictions were alleged as strikes under the Three Strikes Law (§§ 667, subds. (c)-(j); 1170.12, subds. (a)-(e)).
Subsequent statutory references are to the Penal Code unless otherwise noted.
On September 19, 2011, the trial court ordered Jackson to be examined by the Kern County Regional Center for the Developmentally Disabled for competence to stand trial. Jackson was found disabled and not competent to stand trial after examination by a doctor on October 10, 2011; he then received competency training and was deemed competent, though disabled, by a second doctor on May 14, 2012. Based on the reports, the trial court found Jackson competent on July 26, 2012.
The public defender's office filed a motion to be relieved as counsel for Jackson on November 14, 2012, citing (but not describing) a conflict of interest. The trial court granted the motion and referred Jackson to the indigent defense program on November 19, 2012.
Jackson entered into a plea agreement on May 31, 2013. In exchange for a nine-year sentence, Jackson agreed to plead no contest to count 2, receiving stolen property, and to admit the three prior convictions. Count 1, burglary, was dismissed. At the change-of-plea hearing, the parties stipulated that the preliminary hearing transcript contained a factual basis for the plea. On July 2, 2013, the court sentenced Jackson to nine years in prison, calculated as follows: on count 2, receiving stolen property, the upper term of six years, plus enhancements of one year under section 667.5, subdivision (b), for each of the three prior convictions.
Proposition 47 was approved by the voters at the general election on November 4, 2014, and became effective the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) It amended the Penal Code to change some offenses that had been felonies to misdemeanors. (Rivera, supra, at p. 1091.) Among the changes was an amendment to the Penal Code section on receiving stolen property, which was deemed a misdemeanor unless the value of the stolen property possessed exceeds $950. (§ 496, subd. (a).) Proposition 47 included a provision allowing those serving felony sentences for crimes now deemed misdemeanors to petition the superior court to recall their sentences and resentence them. This provision applies regardless of whether the defendant was found guilty after a trial or was convicted based on a plea. (§ 1170.18, subd. (a).) If Jackson were found entitled to resentencing, the maximum sentence for the section 496 offense would be one year in county jail; the section 667.5 enhancements (which are for a current felony conviction only) would not apply.
Jackson filed a petition to recall sentence pursuant to section 1170.18 on December 4, 2014. The petition was submitted on Jackson's behalf by the public defender's office using a form provided for that purpose by the superior court. The form simply recited that Jackson was serving a sentence for a conviction under section 496, subdivision (a); was requesting resentencing under section 1170.18, subdivision (a); did not have any disqualifying prior convictions; and did not pose an unreasonable danger to public safety. No declaration or other evidence relating to the value of the property or any other issue was attached.
At the hearing on the petition on February 19, 2015, which was very brief, Jackson was represented by a deputy public defender but was not present in person. The prosecutor stated that the property "recovered," according to the police report, was "[o]ne Samsung television, one Apple iBook, a Sony [PlayStation], three game consoles, a computer printer, miscellaneous jewelry, several games for that [PlayStation], 29 Blu-ray movies, a Kindle, and a GPS unit." "That's going to be well over 950," the prosecutor concluded. Defense counsel said she was "not sure" the property stolen included all the items the prosecutor listed. The prosecutor answered that his list included "everything found in the trunk," not "everything stolen." The court's minute order indicated that the hearing was conducted "without the physical case file." The correct list of the items that were both found in the car and identified by the victim (as stated at the preliminary hearing) was not provided by either party. The matter was submitted to the court upon these representations by counsel. The court then denied the petition, saying Jackson was "ineligible based on the amount of—the dollar amount of the items he was in possession of."
DISCUSSION
I. Standard of review
To the extent the issues raised by the parties require interpretation of Proposition 47, our review is de novo. To the extent we must review the trial court's factual findings, we apply the substantial evidence standard. (People v. Johnson (2016) 1 Cal.App.5th 953, 960 (Johnson).) II. Burdens
Jackson maintains the People had the burden of showing the value of the property was more than $950 and says the evidence before the trial court was insufficient to show this. Cases decided since Jackson's briefing show it was he who had the initial burden. The evidence before the court was insufficient to show the value of the stolen property Jackson received. Under the recent case law, this means Jackson failed to carry his initial burden and the denial of the petition was correct. It is appropriate under the circumstances, however, to allow him to file a new petition if he can offer evidence of the property's value.
A. Case law
The Courts of Appeal have held that a defendant submitting a section 1170.18 petition and arguing that a theft crime was a misdemeanor because the value of the property stolen was $950 or less has the initial burden of presenting evidence of the value of the property. The reasoning in each case is that such a defendant has already been convicted of an offense in a proceeding in which the prosecution had the burden of proving each element to a jury beyond a reasonable doubt, unless the trial or the jury was waived by the defendant. The law reducing the status of the offense to a misdemeanor was an act of lenity extended by the electorate to those already found guilty of a felony under conditions including full procedural protections. Consequently, there is no due process problem with placing the burden on a defendant petitioning for recall of sentence. Further, ordinary procedural principles place the burden of establishing a right to relief on the party seeking it. (See Evid. Code, § 500 ["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."].) A defendant who files a section 1170.18 petition therefore has the burden of proving eligibility for relief, which in a case such as this includes showing the value of the stolen property. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins); People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008 (Bush); People v. Johnston (2016) 247 Cal.App.4th 252, 258, review granted July 13, 2016, S235041; Johnson, supra, 1 Cal.App.5th at pp. 964-965; People v. Hudson (2016) 2 Cal.App.5th 575, 583-584, review granted Oct. 26, 2016, S237340.)
In Johnson, supra, 1 Cal.App.5th 953, the Court of Appeal explained that the defendant's initial burden means the burden of showing eligibility for resentencing under section 1170.18. To be eligible for resentencing, the defendant must present evidence showing the offense of conviction was a misdemeanor under the amendments made by Proposition 47 and the defendant is currently serving a felony sentence for it. (Johnson, supra, at pp. 964-965.) Where the offense is a violation of section 496, subdivision (a), as it is here, the showing must include proof that the value of the stolen property received by the defendant was $950 or less. (Sherow, supra, 239 Cal.App.4th at p. 879.) Proof must be made by a preponderance of the evidence. (Bush, supra, 245 Cal.App.4th at p. 1001.)
The evidence upon which the defendant intends to rely—or at least some of it—should be attached to the petition. (Sherow, supra, 239 Cal.App.4th at p. 880; Perkins, supra, 244 Cal.App.4th at pp. 137, 140; Johnson, supra, 1 Cal.App.5th at p. 970.) The trial court has discretion to deny the petition without a hearing if it is not supported by some evidence sufficient to create a dispute about the defendant's eligibility for resentencing. (Perkins, supra, at pp. 137, 139.) Because defendants may often be unable to supply such evidence, and also because in some cases eligibility will be fully established by evidence the defendant can attach to the petition, the Perkins court read section 1170.18 "to fairly imply that in the normal case the superior court will rule on the basis of the petition and any supporting documentation." (Perkins, supra, at p. 137; see People v. Fedalizo (2016) 246 Cal.App.4th 98, 109.) On the other hand, if the defendant submits evidence sufficient to create a dispute but not to establish eligibility, the trial court can "permit further factual determination." (Sherow, supra, at p. 880.)
The defendant's evidence of eligibility can come from any source and is not limited to the record of conviction. In this, the rules applicable to three strikes resentencing under Proposition 36 (§ 1170.126) differ from those applicable to resentencing under Proposition 47 (§ 1170.18). It is appropriate to allow defendants to rely on evidence outside the record of conviction for purposes of section 1170.18 because there will often have been no reason, in the court of conviction, to present evidence relevant to the defendant's eligibility for resentencing. For instance, before Proposition 47, there was often no reason to present evidence of the value of stolen property received in a section 496, subdivision (a), felony case because the value of the property was not an element of the offense. (Johnson, supra, 1 Cal.App.5th at p. 971; Perkins, supra, 244 Cal.App.4th at p. 140 & fn. 5.)
The evidence a defendant attaches to the petition to establish eligibility or at least create a dispute can take a variety of forms. A declaration containing a defendant's "testimony about the nature of the items taken" could potentially do the job. (Sherow, supra, 239 Cal.App.4th at p. 880.) The petition could cite facts in the record of conviction relevant to the value of the property. (Perkins, supra, 244 Cal.App.4th at p. 137.) In Bush, the nature of the stolen property upon which the convictions were based (some identification cards having apparently no quantifiable monetary value), as reflected in a probation report on which both parties relied, was sufficient to satisfy the defendant's initial burden and justify a remand. (The appellate court did not know whether this information was included in the petition, but this was because the trial court lost the petition, and the appellate court consequently did not hold that point against the defendant.) (Bush, supra, 245 Cal.App.4th at pp. 1007-1009.)
If the defendant makes the necessary showing of eligibility, the People then have the opportunity to attempt to establish the defendant's ineligibility for resentencing. The people can show this by rebutting the defendant's evidence that the crime of conviction was a misdemeanor under the law as amended by Proposition 47 or by demonstrating that the defendant has a prior conviction of one of the offenses listed in section 1170.18, subdivision (i). (Johnson, supra, 1 Cal.App.5th at p. 965.)
If, after considering the evidence submitted by the defendant and the People, the trial court finds the defendant eligible for resentencing by a preponderance of the evidence, the court will still have to decide whether actually to grant resentencing. Section 1170.18, subdivision (b), provides that the court "shall" recall the sentence and resentence the defendant if the elements of eligibility in subdivision (a) are satisfied, but further provides that the court can deny the petition if, "in its discretion," it "determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." The parties have not raised, and we express no opinion on, the issues of the burden and standard of proof applicable to that determination. (See Johnson, supra, 1 Cal.App.5th at p. 965, fn. 11 [expressing no view on same issues].)
In several cases it has been held that, where the trial court's ruling on a section 1170.18 petition took place before the law was clarified, a defendant who failed to carry his or her initial burden of proving eligibility should have an opportunity to try to carry it under the newly clarified rules. This was because section 1170.18 itself says nothing about burdens of proof, and the prosecution and defense each claimed the burden was on the other. Under these circumstances, the Courts of Appeal affirmed the trial courts' denials of the petitions without prejudice, thus allowing the defendants to file new petitions and try to supply the necessary evidence. (Johnson, supra, 1 Cal.App.5th at p. 970; Perkins, supra, 244 Cal.App.4th at p. 142; Sherow, supra, 239 Cal.App.4th at p. 881.)
B. Application to this case
The application of the above principles to this case is straightforward. Jackson did not attach to his petition any evidence of the value of the stolen items in his possession and did not present any evidence at the hearing. It follows that he did not carry his burden of showing eligibility for recall of sentence under section 1170.18. Consequently, we will affirm the trial court's ruling. At the same time, however, substantial evidence in the appellate record does not support a finding that the property was worth more than $950 either. Contrary to the People's assertion, the nature of the items identified at the preliminary hearing as having both been stolen and been found in Jackson's car does not, by itself, show that their value exceeded $950. The value of used consumer electronics presumably varies considerably according to the age and condition of the items, as to which the record contains no evidence. As a result, there is nothing to preclude Jackson from making the necessary showing in a new petition. Jackson's hearing was held on February 19, 2015, earlier than any of the appellate opinions we have cited, so the law was unsettled at the time and it is appropriate to affirm the ruling without prejudice and allow Jackson to file another petition supported by evidence. We express no opinion, of course, about what evidence might be available or about how likely a new petition is to succeed. III. Jackson's other arguments
Jackson makes several other arguments which, if well taken, would be grounds for reversing the trial court's ruling as opposed to affirming without prejudice. We turn to these now.
A. Ineffective assistance of counsel
Jackson claims the attorney from the public defender's office rendered ineffective assistance at the hearing on the petition. We will assume for the sake of argument that the right to counsel applied to this hearing.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance "fell below an objective standard of reasonableness," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; see People v. Hester (2000) 22 Cal.4th 290, 296.) When determining whether counsel's performance was professionally unreasonable, we must consider whether the appellate record affirmatively shows this or whether, by contrast, it is possible that considerations not appearing in the record could have justified counsel's conduct. If the situation is simply that nothing could justify the attorney's action, then we can find ineffective assistance on direct appeal; but if counsel could have had a tactical reason for acting as he or she did, and this reason does not appear in the record, then the matter should be addressed instead in habeas proceedings, where a record of counsel's reasons can be developed. (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10; In re Dennis H. (2001) 88 Cal.App.4th 94, 98 & fn. 1; People v. Plager (1987) 196 Cal.App.3d 1537, 1543.) Further, it is not necessary to determine whether counsel's challenged action was professionally unreasonable in every case. If the reviewing court can resolve the ineffective assistance claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a reasonable probability the outcome would have been different absent counsel's challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at p. 697.)
1. Conflict of interest
Jackson first contends that, as the public defender's office declared a conflict of interest in 2012, prior to the time of his plea bargain, he was denied his right to effective counsel when he was represented by the same office at the hearing on the petition in 2015.
There are two standards for analyzing prejudice to a defendant arising from ineffective assistance of counsel. One is the ordinary Strickland standard stated above: To show reversible error, the defendant must demonstrate that the professionally unreasonable conduct (the conflict) gives rise to a reasonable probability that the defendant would have obtained a better outcome without it. The other applies in cases where the defendant "shows that his counsel actively represented conflicting interests" and "demonstrate[s] 'that a conflict of interest actually affected the adequacy of his representation.'" (Cuyler v. Sullivan (1980) 446 U.S. 335, 349-350, 353.) In that situation, the conflict is more than "a mere theoretical division of loyalties," and the defendant need not go further and show a reasonable probability of a better outcome without the conflict. (Mickens v. Taylor (2002) 535 U.S. 162, 171.)
There is a third category of ineffective-assistance cases in which reversal is automatic. This category includes cases where "assistance of counsel has been denied entirely or during a critical stage of the proceeding," or where defense counsel is forced to represent codefendants over his or her timely and well-taken objection. (Mickens v. Taylor, supra, 535 U.S. at pp. 166, 168. Nothing of this kind is alleged to be at issue here. --------
The ordinary Strickland standard applies here. The record does not show why the public defender's office believed it had a conflict, so Jackson has not shown that his counsel actively represented conflicting interests. The record also does not show that the adequacy of defense counsel's representation was affected by the previously reported conflict. Jackson says the transcript of the hearing shows defense counsel was unprepared because she had little to say about the value of the stolen property Jackson received, but the record does not show this was caused by the conflict reported in 2012. As we have stated, the law at the time of the hearing did not indicate which party had the burden of proof and, in any event, further evidence of the value of the property, beyond its description in the preliminary hearing transcript, might not have been available.
Under the Strickland standard, Jackson has not shown prejudice. The appellate record does not demonstrate that, absent the conflict that existed as of 2012, defense counsel would have done anything reasonably likely to lead to a different result.
2. Lack of preparation
Jackson asserts that, as an additional ground (separate from the conflict) for finding ineffective assistance of counsel, the record shows his attorney was unprepared and made only a perfunctory effort at the hearing. What we have said above disposes of this contention as well. The record does not show why counsel used the tactics she used—does not show, that is, whether she presented no evidence of value because she did not take the trouble to gather it; because she believed (arguably with reason, at the time) she had no burden; or because no such evidence was available. Where the record does not show why counsel acted as he did and does not rule out a reasonable explanation, we affirm in a direct appeal.
B. Jackson's absence from the hearing
Jackson was not present at the hearing on the petition and the record reflects no waiver of a right to be present. He claims he had this right and the court erred when it proceeded in his absence.
A criminal defendant has no constitutional or statutory right to be present when a proceeding addresses purely legal questions or the defendant's presence "would not contribute to the fairness of the proceeding." (People v. Perry (2006) 38 Cal.4th 302, 312.) At the hearing held in this case, neither side proffered evidence and the only question the court had to answer was whether Jackson had carried his initial burden of proving eligibility for recall of sentence. Under those circumstances, the only issue was a legal one, and Jackson's presence would not have made the proceedings more fair. Proceeding in his absence therefore was not error.
Matters may stand differently if Jackson files another petition, of course. A hearing to resolve factual issues could be necessary, depending on the kind of evidence Jackson offers. That hearing would not be limited to purely legal issues, and Jackson's presence could possibly contribute to the fairness of the proceedings. On the other hand, as we have said, a decision to grant or deny recall of sentence under section 1170.18 should often be able to be made on the parties' written submissions.
If he is resentenced, Jackson will have a right to be present at the resentencing hearing, a right he will have the option of waiving. (People v. Fedalizo, supra, 246 Cal.App.4th at p. 110 [sentencing is critical stage of proceedings at which defendant has right to be present, but defendant can waive right through counsel where sentence is for misdemeanor].)
C. Evidentiary hearing
Jackson argues that his right to due process of law was violated because "there was no evidentiary hearing."
No evidentiary hearing was necessary in this instance because Jackson, who had the burden of proof of eligibility, did not attach any evidence to his petition or proffer any evidence at the live proceeding. Under the rules explained above, the court could properly have denied the petition based on the written submissions alone.
If Jackson files a new petition, the nature of the hearing, if any, will be determined by the evidence he submits.
DISPOSITION
The trial court's order denying Jackson's petition is affirmed without prejudice to Jackson's right to file a new petition offering evidence of his eligibility for the requested relief.
/s/_________
SMITH, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
GOMES, J.