Opinion
F071906
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TERRY PAUL KEEVER, Defendant and Appellant.
Michael Satris, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF5923 & CRF6802)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Michael Satris, 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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INTRODUCTION
Terry Paul Keever filed applications pursuant to Proposition 47 and Penal Code section 1170.18, subdivision (f) to have two prior felony convictions in 2002 for receiving stolen property (Super. Ct. Tuolumne County, 2001, No. CRF5923) and second degree burglary (Super. Ct. Tuolumne County, 2001, No. CRF6802) reduced to misdemeanors. The applications were filed on February 17, 2015, after Keever had served his sentences for the convictions. The trial court set a hearing date for May 19, 2015. The People filed responses not objecting to Keever's application to reduce the second degree burglary conviction to a misdemeanor, but objecting to Keever's application to reduce his conviction for receiving stolen property to a misdemeanor because there was no evidence of the value of the property.
Unless otherwise designated, all statutory references are to the Penal Code. Section 1170.18, subdivision (f) provides:
"A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
On May 19, 2015, the trial court conducted a brief hearing on Keever's applications. Keever did not request a hearing, was not present, and was not represented by counsel. The People appeared and stated their opposition to the receiving stolen property application on grounds there was no evidence that the items received by Keever were above or below the statutory amount of $950. The prosecutor further represented the People's file had been destroyed. Referring to a probation officer's report, the trial court noted a substantial amount of property was recovered, but no value placed on it. The court found there was no evidence of the value of the recovered property being under $950. Although the prosecutor and court appeared to be referring to the conviction for receiving stolen property, it is unclear to which conviction the court's ruling was directed and the court only referred to one application in its pronounced ruling. The court did not make an express finding on Keever's application on the second degree burglary conviction. The court found Keever ineligible for relief, but denied his application without prejudice. The minute orders on each application indicate they were denied without prejudice because the court could not determine the value of the property involved in each offense.
On appeal, Keever contends the court erred in denying his application for his receiving stolen property conviction because, Keever argues, the People bear the burden of showing the value of the property exceeded $950. Keever contends the trial court erred in denying his application for the second degree burglary conviction because the People did not oppose the application and the People, in effect, conceded the value of the property involved was under $950. Keever further contends the trial court erred in denying his petition without affording him an opportunity to respond to the People, to be present at the hearing, and to be represented by counsel. In addition to opposing each of these contentions, the People argue the trial court's ruling was not an appealable order because it denied Keever's applications without prejudice. Because the trial court's rulings are ambiguous and refer to a single application, we remand for further findings and proceedings.
APPEALBLE ORDER
The People assert that because the trial court denied Keever's applications to reduce his felony convictions to misdemeanors without prejudice, Keever could file new applications and therefore his substantial rights were not affected. Keever replies he has already presented what he could in petitioning the trial court for relief pursuant to Proposition 47, his substantial rights have been affected by the trial court's ruling, and requiring Keever to establish the value of the property in question could be a practical impossibility.
In Teal v. Superior Court (2014) 60 Cal.4th 595, 597-602 (Teal), our Supreme Court held that a trial court's ruling denying relief under Proposition 36 and section 1170.126 was an appealable order. Proposition 47 and section 1170.18 present a similar structure to Proposition 36 and section 1170.126 for trial court review of prior convictions. By a parity of reasoning to Proposition 36, trial court rulings under Proposition 47 should be subject to appellate court review in the same manner. The People have not persuasively argued otherwise. We therefore find Teal controlling and apply its holding here that the trial court's denial of relief constitutes an appealable order.
The People argue that the order is not appealable because Keever's substantial rights were not affected. The order is without prejudice and, as a result, does not foreclose the possibility of a reduction of Keever's felony convictions. But the trial court assigned the burden of proof to Keever and denied him relief for failure to meet it. Keever's substantial rights were affected and he is entitled to appellate review of his assertion that the People bear the burden of proving the value of the property in question, notwithstanding that the order is without prejudice. We therefore reject the People's arguments that Keever's substantial legal rights were not affected and that Teal is distinguishable from this case.
BURDEN OF PROOF
Keever contends the trial court erred in denying his application to reduce his felony conviction for second degree burglary to a misdemeanor because the People did not oppose that petition and checked the box on the responsive form that Keever "is entitled to the requested relief." Keever argues that, in effect, the People conceded there was insufficient evidence the amount involved was at or exceeded $950. Keever contends his conviction for receiving stolen property should also be reduced to a misdemeanor because it is the People's burden to prove the value of the property involved in the offense. Keever's contentions for both felony convictions rely expressly or implicitly on the premise that the People bear the burden of proving the value of the property was $950 or more.
On November 4, 2014, voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act," which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also provided a mechanism by which a person who has completed his or her sentence for a conviction of a felony that was made a misdemeanor by Proposition 47 can apply to the trial court that entered the judgment of conviction to have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).) This includes the offenses of receiving stolen property under section 496 with a value under $950 and commercial burglaries involving theft of property under $950 pursuant to section 459.5. (§§ 459.5, 496 & 1170.18, subd. (b).) We review the trial court's application of Proposition 47 de novo and its factual findings on its ruling on the petition for substantial evidence. (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)
Keever, as the applicant and petitioner, has the burden of showing he was eligible to have his prior convictions reclassified as misdemeanors under Evidence Code section 500. (People v. Romanowski (2017) 2 Cal.5th 903, 916 ["The ultimate burden of proving section 1170.18 eligibility lies with the petitioner," citing Evid. Code, § 500]; People v. Sweeney (2016) 4 Cal.App.5th 295, 302; People v. Pak (2016) 3 Cal.App.5th 1111, 1117; People v. Johnson (2016) 1 Cal.App.5th 953, 956, 959, 962-963; People v. Hall (2016) 247 Cal.App.4th 1255, 1263; People v. Bush (2016) 245 Cal.App.4th 992, 1007; People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow (2015) 239 Cal.App.4th 875, 877, 879-880.) A petitioner's allegation that he or she believes the property was worth $950 or less is insufficient even if the allegation is made under penalty of perjury. (People v. Sweeney, supra, at p. 302.)
Evidence Code section 500 provides: "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 ... that he is asserting."
Keever failed to make a prima facie showing establishing his prior felony convictions were for offenses that would have been misdemeanors had Proposition 47 been in effect at the time the crimes were committed. (People v. Hall, supra, 247 Cal.App.4th at p. 1263.) On his application for the second degree burglary conviction, Keever simply listed the offense as second degree burglary, without stating it involved a commercial establishment as now required by section 459.5, subdivision (a). For both offenses, Keever did not show the property either taken or illegally received had a value of less than $950. (See §§ 459.5, subd. (a) & 496.) This was insufficient, even though the application does not request such information or explain the necessity of providing it. (See People v. Sweeney, supra, 4 Cal.App.5th at pp. 302-303; People v. Johnson, supra, 1 Cal.App.5th at p. 961; People v. Hall, supra, at p. 1263; People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137, 139; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450; People v. Sherow, supra, 239 Cal.App.4th at p. 880.)
Furthermore, after passage of Proposition 47, some entries into commercial establishments with intent to commit larceny remain second degree burglaries that can be punished as felonies. (See § 461, subd. (b).)
Keever bore the burden of proof on his application to have his conviction for receiving stolen property reduced to a misdemeanor and he failed to make a prima facie showing he was entitled to relief. The trial court did not err in denying Keever's application for that conviction without prejudice.
As to Keever's application to have his conviction for second degree burglary reduced to a misdemeanor, the People's written response expressly did not object to the application and the People further checked a box on the form indicating Keever "is entitled to the requested relief." The court and the prosecutor scarcely discussed the second degree burglary conviction during the brief hearing and placed their attention on the receiving stolen property conviction. The prosecutor represented that the People's file had been destroyed. Although the court did not make an express ruling during the hearing concerning the second degree burglary conviction, the minute order indicates Keever's application to reduce his felony conviction for second degree burglary to a misdemeanor was denied.
During the hearing, the court apparently referred to a probation officer's report indicating several items of property were involved. The record, unfortunately, is ambiguous because it is uncertain whether the trial court is referring to a probation officer's report for the receiving stolen property conviction, or for the second degree burglary conviction. If it was the latter, the trial court may have had a factual basis for disregarding the People's concession that Keever was entitled to relief. The probation officer's report relied on by the trial court is not part of our record on appeal. This additional record was not made available for our review.
Given the lacuna in the record, we remand for the trial court to expressly find whether it granted or denied Keever's application to reduce his second degree burglary conviction from a felony to a misdemeanor. The People did not challenge this application. Unless there is evidence in the record showing Keever was not entitled to relief, he would no longer carry the burden of proof to show the amount taken in committing the second degree burglary met the statutory threshold. If the court denies this application, as we discuss below, Keever may proceed with a new application for both prior convictions.
RIGHT TO A HEARING AND REPRESENTATION BY COUNSEL
Keever contends the trial court erred in failing: to give him time to respond to the People's argument, to conduct the hearing with him being present, and to appoint him counsel for the hearing. We initially note that under subdivision (h) of section 1170.18, a formal hearing is not mandated when a defendant files an application pursuant to subdivision (f) of section 1170. 18. An application filed pursuant to section 1170.18, subdivision (f) does not require a hearing or the presence of the parties. The applications each had a box for Keever to check if he was requesting a hearing and he did not check the box in either application. We also note the People's responsive pleadings added no information other than the People's objection that Keever failed to establish the value of the property in his offenses. Keever was not prejudiced by not being able to respond to the People's pleadings or to attend the hearing as long as it remained a pro forma determination based only on his petitions and the People's response. As we explain in further detail below, however, Keever's rights changed once the trial court began to consider evidentiary matters that went beyond the scope of the parties' pleadings.
"Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)." (§ 1170.18, subd. (h).) --------
Keever further asserts 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.) Contrary to Keever's position, the right to counsel generally does not arise at the eligibility phase of postsentencing proceedings. (See People v. Shipman (1965) 62 Cal.2d 226, 232-233 [counsel need not be appointed in connection with a writ of coram nobis in the absence of adequate factual allegations stating a prima facie case]; People v. Barton (1978) 21 Cal.3d 513, 519, fn. 3 (Barton) [right to counsel attaches on defendant's collateral attack on his conviction after stating a prima facie case]; In re Clark (1993) 5 Cal.4th 750, 780 (Clark) [same].)
In People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse), the court held a defendant who was found eligible for resentencing under section 1170.18 was entitled to counsel at the resentencing hearing. (Rouse, supra, at p. 295.) The Court of Appeal was careful, however, to distinguish the eligibility phase of section 1170.18 proceedings. "This case presents a separate issue. [The] defendant passed the eligibility stage. The court ruled his petition was meritorious and he was entitled to be resentenced. The court then vacated [the] defendant's original sentence in its entirety and proceeded with sentencing [the] defendant anew, including on the non-Proposition 47 counts. At this point, [the] defendant argues the proceeding was akin to a plenary sentencing hearing at which his substantial rights were in jeopardy without the assistance of counsel. [The] respondent contends that [the] 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, supra, at p. 299; italics omitted.) The court concluded that the defendant had a right to counsel during the resentencing proceeding that had passed an earlier eligibility determination. (Id. at pp. 299-300.)
The court in Rouse 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 People v. Scarbrough (2015) 240 Cal.App.4th 916, 924.) Courts interpreting section 1170.126 have 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; 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]; People v. Scarbrough, supra, 240 Cal.App.4th at p. 924.) The court in Rouse found the Proposition 36 cases did not implicate Sixth Amendment rights to initially establish eligibility for resentencing and neither does section 1170.18. (Rouse, supra, at p. 299.)
The procedure set forth in subdivisions (f) and (h) of section 1170.18 is similar to the eligibility hearing created in Proposition 36. Generally, an applicant does not have a right to counsel during an eligibility determination pursuant to section 1170.18, subdivision (f). This hearing is designed by statute to be informal and may be conducted without a formal hearing. But the general rule may not apply in all cases. For instance, a trial court's initial determination of eligibility may affect not only the convictions for completed sentences an applicant seeks to have reduced from a felony to a misdemeanor. The application may involve a defendant who is also serving a sentence for a subsequent offense and seeks resentencing under other provisions of sections 1170.18 or 1170.126. Such an applicant may raise issues beyond the mere eligibility determination and may be entitled to the appointment of counsel.
There could also be applications filed pursuant to subdivision (f) of section 1170.18 where a defendant has made a prima facie showing of eligibility that is challenged by the People based on evidence that cannot be resolved by the application and response filed by the parties. Where a defendant's eligibility depends on an evidentiary hearing or the discovery of missing record, the trial court may be required to appoint counsel to the defendant before conducting a hearing. (See People v. Romanowski, supra, 2 Cal.5th at p. 916; Barton, supra, 21 Cal.3d at pp. 518-519; Clark, supra, 5 Cal.4th at p. 780.)
Although Keever did not initially make a prima facie showing for relief in either petition, the People apparently conceded he was entitled to relief on his application for the second degree burglary conviction. Though a hearing was not statutorily mandated, the court conducted a hearing. The People's record of the receiving stolen property conviction was apparently destroyed. The trial court may have had the probation officer's report from that case, but ambiguities in the hearing make it equally possible the report was from the second degree burglary case.
The potential of missing record in at least one of Keever's prior convictions could make remand meaningless if he has no ability to discover the record. This is especially so because defendant bears the burden of proof upon the refiling of his applications. The record indicates key record of one or both of the prior convictions may be missing and an evidentiary hearing may be required to determine Keever's eligibility for relief. Given the unique circumstances presented, on remand Keever should be given the opportunity to retain counsel, or to have counsel appointed if he is indigent, to discover the relevant record and to pursue his legal remedies, if any.
We recognize that, at the time Keever's petitions were filed, the law was unsettled. On remand, Keever is not barred from refiling both applications if the trial court finds it denied his application on the second degree burglary conviction, or to file just the application for the receiving stolen property conviction if the trial court grants his application for the second degree burglary conviction. Depending on the trial court's ruling after remand, Keever may refile one or both of his applications without prejudice. (See People v. Johnson, supra, 1 Cal.App.5th at pp. 970-971; People v. Perkins, supra, 244 Cal.App.4th at pp. 139-140, 142; People v. Sherow, supra, 239 Cal.App.4th at p. 881).
DISPOSITION
The order denying Keever's application to have his felony conviction for receiving stolen property in Tuolumne County Superior Court case No. CRF5923 is affirmed without prejudice to Keever filing a new application or to pursue any other relief to which he may be entitled. The case is remanded for the trial court to expressly find whether it granted or denied Keever's application to reduce his felony conviction for second degree burglary in Tuolumne County Superior Court case No. CRF6802 to a misdemeanor. On remand, the trial court shall allow Keever to retain counsel, or appoint him counsel if he is indigent, to pursue his potential legal remedies.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
POOCHIGIAN, J.