Opinion
H042828
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. IVAN VARGAS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BB944536)
I. INTRODUCTION
Defendant Ivan Vargas appeals after the trial court denied his Penal Code section 1170.18 petition to have his felony conviction of selling or aiding in the sale of stolen property (§ 496, subd. (a)) reduced to a misdemeanor. Defendant contends the trial court erred by finding that he failed to establish a prima facie case of eligibility for relief. For reasons that we will explain, we will affirm the trial court's order denying defendant's section 1170.18 petition without prejudice to the filing of a new petition that shows the value of the stolen property was $950 or less.
All further statutory references are to the Penal Code unless otherwise indicated.
II. BACKGROUND
In December 2009, defendant was charged with selling or aiding in the sale of stolen property, a Toyota Camry (§ 496, subd. (a)) and misdemeanor resisting arrest (§ 148, subd. (a)(1)). The complaint alleged that defendant had a prior strike conviction and had served a prior prison term. Defendant pleaded no contest to both charges and admitted the prior conviction and prior prison term allegations in exchange for a 32-month prison sentence.
On November 4, 2014, the electorate passed Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reclassified certain drug-and theft-related offenses as misdemeanors, including a violation of section 496, subdivision (a) where the value of the stolen property does not exceed $950, except where the defendant has one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring sex offender registration pursuant to section 290, subdivision (c). Proposition 47 also added section 1170.18, which permits a person who is "currently serving a sentence" for a conviction of a reclassified offense to request to be resentenced to a misdemeanor (id., subd. (a)) and permits a person who has "completed his or her sentence" to apply for redesignation of his or her conviction as a misdemeanor (id., subd. (f)).
In August 2015, defendant filed a section 1170.18 petition requesting "reduction" of his felony conviction to a misdemeanor. The petition was filed by his appellate counsel in another case and was signed by that attorney. The petition alleged that defendant had been convicted of "grand theft or a theft-related felony . . . , and the value of the property or funds taken did not exceed $950." The petition did not specify whether it was being brought pursuant to section 1170.18, subdivision (a) or section 1170.18, subdivision (f), but it alleged that defendant had been released from prison in June 2012 on post-release community supervision (PRCS) and that his PRCS "may actually have terminated." The petition also alleged that defendant had no prior convictions for an offense listed in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring sex offender registration. The petition alleged that a hearing was required because defendant had established a prima facie case of eligibility for relief, and that the trial court should appoint counsel.
Pursuant to section 3451, subdivision (a), a period of PRCS may not exceed three years following the defendant's release from prison. Thus, if defendant was released from prison in June 2012, his PRCS would have terminated prior to August 2015, when he filed the section 1170.18 petition.
The District Attorney filed a response to defendant's section 1170.18 petition, checking a box to indicate that the petition sought redesignation under section 1170.18, subdivision (f). The District Attorney asserted that defendant was not eligible for relief because his offense involved property with a value of over $950.
The trial court denied defendant's section 1170.18 petition, finding that defendant had "not established a prima facie case of eligibility for the requested relief." The trial court specified that it was also denying defendant's "request for [a] hearing and/or appointment of counsel."
III. DISCUSSION
Defendant contends the trial court erred by finding that he failed to establish a prima facie case of eligibility for relief under section 1170.18, subdivision (f). Defendant argues it was sufficient for him to have alleged that the value of the stolen property did not exceed $950 and that he was entitled to hearing on that issue.
As defendant acknowledges, similar claims have been rejected in cases involving petitions filed under section 1170.18, subdivision (a)—i.e., by defendants who were "currently serving a sentence." In such cases, a defendant "must provide some evidence of eligibility when he [or she] files the petition." (People v. Perkins (2016) 244 Cal.App.4th 129, 137 (Perkins).) The trial court may summarily deny a section 1170.18, subdivision (a) petition that makes only a bare assertion regarding the value of stolen property, without any evidence supporting it. Thus, in Perkins, the trial court did not err when it summarily denied a section 1170.18, subdivision (a) petition in which the defendant alleged he had been convicted of receiving stolen property and that the value of the property did not exceed $950, but which did not "indicate anywhere on the form the factual basis of his claim regarding the value of the stolen property." (Perkins, supra, at p. 137; see also People v. Johnson (2016) 1 Cal.App.5th 953, 956-957, 969 (Johnson).) Likewise, in People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), the trial court did not err by summarily denying a section 1170.18, subdivision (a) petition requesting resentencing of several second degree burglary convictions, because the petition contained no "separate discussion of the counts, no reference to facts or evidence and no argument." (Sherow, supra, at p. 877.)
In Perkins, Johnson, and Sherow, the trial court orders were affirmed without prejudice to the refiling of new section 1170.18 petitions. In Perkins, the court explained that in a new petition, the 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 129 at p. 140, fn. omitted.)
Defendant notes the cases discussed above all involved petitions for resentencing under section 1170.18, subdivision (a), whereas his case involves a petition for redesignation under section 1170.18, subdivision (f)—i.e., one filed by a defendant who has "completed his or her sentence." Defendant points out that section 1170.18, subdivision (h) provides: "Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)." According to defendant, section 1170.18, subdivision (h) "authorizes a hearing if the applicant requests one" when the petition is brought under section 1170.18, subdivision (f), even when the petition contains only a bare assertion of eligibility for redesignation.
Defendant acknowledges his petition did not specifically request a hearing pursuant to section 1170.18, subdivision (h), but he points out that the petition did state that a hearing was required. Defendant also points out that the trial court construed his petition as requesting a hearing. Defendant further notes that in general, pleadings must be liberally construed (see Code Civ. Proc., § 452), and he contends that by failing to address this issue, the Attorney General has conceded that his petition did request a hearing. In view of the trial court's order denying defendant's "request for [a] hearing," we will assume that defendant's petition requested a hearing.
In asserting that he was entitled to a hearing because his petition requested one, defendant relies on People v. Jones (2016) 1 Cal.App.5th 221, review granted September 14, 2016, S235901 (Jones), which involved a petition for redesignation under section 1170.18, subdivision (f). In Jones, the defendant requested redesignation of a second degree burglary conviction that resulted from his theft of items worth $35.46 from a Walgreens. (Jones, supra, at p. 225.) In his petition, the Jones defendant specifically requested a hearing pursuant to section 1170.18, subdivision (h). (Jones, supra, at p. 226.) The trial court held a hearing, but it failed to address the issue of whether the defendant's burglary conviction should be reduced—the trial court addressed only the question of whether a prior prison term enhancement must be stricken if the underlying conviction has been redesignated as a misdemeanor. (Id. at p. 227.) On appeal, the Jones court held that given the defendant's request for a hearing, the trial court was required to provide one under section 1170.18, subdivision (h). (Jones, supra, at p. 233.) The court concluded that "when a defendant has requested and is statutorily entitled to a hearing, the superior court must hold a hearing and give the defendant a fair opportunity to make his [or her] case." (Ibid.)
In its order granting review of Jones, the California Supreme Court ordered briefing deferred pending its decision in People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900, which will address the question of whether a defendant may be eligible for resentencing on a prior prison term enhancement after the underlying felony conviction has been reclassified as a misdemeanor under Proposition 47. --------
Jones is distinguishable from the instant case, because in that case the record apparently showed that the value of the stolen property did not exceed $950. The Jones court thus did not consider whether the defendant would have been entitled to a hearing if he had not made a prima facie showing that the value of the property did not exceed $950.
Defendant's analogy to habeas corpus proceedings also does not help him. When a prisoner files a petition for writ of habeas corpus, he or she must make a "prima facie case for relief." (People v. Duvall (1995) 9 Cal.4th 464, 475 (Duvall).) "The petition should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.] 'Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.' [Citation.]" (Id. at p. 474.) Here, defendant's section 1170.18 petition did not "state fully and with particularity the facts on which relief is sought," since it did not explain the basis for his assertion that the property taken—a Toyota Camry—had a value of $950 or less. (Duvall, supra, at p. 474.) The petition contained no "reasonably available documentary evidence supporting the claim" that the property taken had a value of $950 or less. (Ibid.) The petition made only a " '[c]onclusory allegation[]' " that the property taken had a value of $950 or less. (Ibid.)
The statutory language also does not support defendant's position. Section 1170.18, subdivision (h) provides: "Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)." Nothing in this language precludes a trial court from summarily denying a petition for redesignation when the defendant fails to make a prima facie showing of eligibility. (See Jones, supra, 1 Cal.App.5th at p. 233 ["We do not hold the superior court may never summarily deny a resentencing petition."].) Section 1170.18, subdivision (h) may properly be read to provide that unless there are disputed factual or legal issues, the trial court need not hold a hearing before granting or denying a redesignation request.
The rationale of the cases construing section 1170.18, subdivision (a) applies to our interpretation of section 1170.18, subdivisions (f) and (h). First, a defendant seeking redesignation has the burden of establishing his or her eligibility. (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."]; Perkins, supra, 244 Cal.App.4th at p. 136.) Second, interpreting section 1170.18, subdivision (h) as requiring a hearing any time a defendant requests one in conjunction with a petition for redesignation, without a showing of eligibility, could lead to absurd results. For instance, the trial court would be required to hold a hearing even if the defendant seeks resentencing for a crime that has not been reclassified as a misdemeanor. (See Perkins, supra, at p. 138.)
In sum, we conclude that under section 1170.18, subdivision (f), defendant had the initial burden to demonstrate his eligibility for redesignation of his felony conviction of violating section 496, subdivision (a) by making a prima facie showing that the value of the stolen property did not exceed $950. Because defendant failed to meet that burden, the trial court did not err by denying his petition. We therefore affirm without prejudice: defendant may still seek redesignation of his felony conviction by filing a new petition that states a prima facie case for relief.
IV. DISPOSITION
The order denying defendant's petition to resentence his Penal Code section 496, subdivision (a) conviction as a misdemeanor pursuant to Proposition 47 petition is affirmed without prejudice to subsequent consideration of a petition that demonstrates that the stolen property was valued at $950 or less.
/s/_________
BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
GROVER, J.