Opinion
E065345
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BURT TRIGEROS, Defendant and Appellant.
Jason L. Jones, 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, A. Natasha Cortina and Mary Katherine Strickland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1501158) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed in part; reversed in part. Jason L. Jones, 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, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
On November 9, 2015, a jury found defendant and appellant Joseph B. Trigeros guilty of possession of stolen property under Penal Code section 496, subdivision (a); being a felon in possession of a firearm under Penal Code section 29800, subdivision (a); and being a felon in possession of ammunition under Penal Code section 30305, subdivision (a). On December 10, 2015, the trial court found true that defendant was previously convicted of two strike priors. On January 29, 2016, the trial court sentenced defendant concurrently on all three counts, for a total of eight years in prison. On January 29, 2016, defendant filed his notice of appeal.
On September 12, 2016, defendant filed an in pro. per. motion for appointment of new counsel on appeal. On November 15, 2016, we declined to rule on the request and requested that Appellate Defenders, Inc. review the request and take any appropriate action. We received no further briefing regarding the request. --------
FACTUAL AND PROCEDURAL HISTORY
Defendant, a convicted felon, was found to be in possession of over 100 stolen items, including firearms and ammunition, belonging to his former brother-in-law, Neftali Rivera, Jr.
Rivera and his girlfriend returned from vacation on January 18, 2015, and discovered their apartment in Corona had been burgled; most of their property was missing. Rivera's missing electronic tablets were located at the residence of defendant.
On February 5, 2015, after police executed a search warrant at defendant's residence, Rivera went inside defendant's residence and identified a significant portion of his missing property. Among other property belonging to Rivera and his girlfriend, defendant was in possession of seven firearms, a large gun safe, thousands of rounds of ammunition, a television, scuba gear, speakers, clothing, and electronic tablets. Rivera had to rent a U-Haul truck to transport the recovered property back to his residence.
DISCUSSION
A. DEFENDANT'S FELONY CONVICTION FOR RECEIVING STOLEN PROPERTY SHOULD BE REDUCED TO A MISDEMEANOR
Defendant contends, and the People concede, that defendant's felony conviction for receipt of stolen property should be reduced to a misdemeanor. The People state that "[b]ecause the jury was never instructed to make a finding regarding the value of the stolen property possessed by appellant, there was no evidence in the record regarding the value of the stolen property, and appellant never conceded the element, it is appropriate to reduce appellant's conviction to a misdemeanor." We agree with the parties.
Under Penal Code section 496, subdivision (a), "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." Moreover, CALCRIM No. 1750 states that "[i]f you find the defendant guilty of receiving stolen property, you must then decide whether the value of the property received was more than $950. If you have a reasonable doubt whether the property received has a value of more than $950, you must find this allegation has not been proved."
In this case, when instructing the jury on the crime of possession of stolen property, the trial court omitted the element requiring the jury to find that defendant possessed over $950 of stolen property from the jury instructions. Moreover, the People never asked any witness to opine on the value of the stolen property found in defendant's residence. Furthermore, no counsel made any reference to the value of the stolen property in argument. The finding of the value of the stolen property was also omitted from the verdict forms; defendant did not concede that element. Therefore, as the People noted in their brief, "[g]iven the complete absence of any reference to the value element, the error cannot be deemed harmless here. (Neder v. United States (1999) 527 U.S. 1; People v. Mil (2012) 53 Cal.4th 400.)"
Based on the lack of evidence regarding the value of the stolen property, the appropriate remedy is to reduce defendant's conviction for receipt of stolen property to a misdemeanor. Possession of stolen property is distinguished in two degrees by Proposition 47, the "Safe Neighborhoods and Schools Act." Proposition 47 created two tiers of culpability for receiving stolen property: defendants found to be in possession of more than $950 of stolen property may be convicted of a felony; all others are guilty of a misdemeanor. (Pen. Code, § 496, subd. (a); CALCRIM No. 1750.)
Moreover, Penal Code section 1157 (section 1157) requires that where a crime is distinguished by degrees, the trier of fact must find the degree, otherwise the defendant is found to be guilty of the lesser charge. Section 1157 applies, "'whenever the jury neglects to explicitly specify the degree of the crime' in the verdict form." (People v. San Nicolas (2004) 34 Cal.4th 614, 634, citing People v. McDonald (1984) 37 Cal.3d 351, 381.) "'The key is not whether the "true intent" of the jury can be gleaned from circumstances outside the verdict form itself; instead, application of section 1157 turns only on whether the jury specified the degree in the verdict form.'" (San Nicolas, at pp. 634-635, citing McDonald, at p. 382.)
In their response brief, the People noted that they recognized, "section 1157 is not strictly applied to all cases where the jury failed to determine the degree of the offense." The People, however, noted that section 1157 applied in this case because "the value of the property was a question of fact for the jury to determine, the jury was never informed by either the court or counsel of its obligation to find that the value of the property was over $950, and there was no evidence presented regarding the value of the stolen property. (Pen. Code, Section 496, subd. (a); CALCRIM No. 1750; see also People v. Love (2008) 166 Cal.App.4th 1292, 1300-1301 [defendant's conviction for grand theft reduced to petty theft where jury never instructed to find defendant had taken property valued over $400 and no evidence presented regarding the value of the stolen items].)"
Based on the above, we agree with both defendant and the People that defendant's conviction for receipt of stolen property should be reduced to a misdemeanor.
DISPOSITION
Defendant's conviction for receipt of stolen property is reduced to a misdemeanor; the sentence is reversed and the trial court is directed to impose a misdemeanor sentence for this conviction. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.