No. A147423.

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA HERNANDEZ, Defendant and Appellant.

Court of Appeals of California, First District, Division One.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115


This is an appeal from the trial court after a ruling denying appellant relief under Proposition 47 and Penal Code section 1170.18, subdivision (a).1 The lone issue is appellant's claim the value of the stolen property was below $950. The trial court determined appellant failed to satisfy his burden the valuation was below that sum. Based on our review of the record, we affirm.


On September 25, 2012, the District Attorney of Marin County filed a complaint charging appellant and two other individuals with certain felonies. In count 1, codefendant Rondell Newt was charged with auto burglary in violation of section 459, a felony. In count 2, appellant, along with Newt and another person, was charged with possession of stolen property, a felony violation of section 496, subdivision (a). Count 2 identified property stolen from multiple victims.

On March 28, 2013, appellant pleaded guilty to count 2, with a maximum penalty of three years in prison. Under the terms of the plea agreement, appellant could petition the superior court for a reduction of the crime to a misdemeanor after one year of successful probation. On the issue of restitution, the original probation report indicated the amount due to a victim was $655, but after the hearing on restitution, the court determined the amount to be $305. This hearing took place on August 22, 2013.

On November 3, 2015, appellant filed a petition in the Superior Court of Solano County to recall his sentence and reduce it to a misdemeanor pursuant to Proposition 47 and section 1170.18, subdivision (a). After conducting a hearing, the trial court denied the motion on January 21, 2016.

Since the case was resolved by a guilty plea, the pertinent facts assessing the issue in the case are derived from the probation report. In that report, the officer states a witness in the Bon Air Shopping Center in Greenbrae saw a man leaning into a Ford Expedition through a broken window. Near the Expedition was a Nissan Altima, parked unusually. The witness told Nicholas Lyon, the owner of the Expedition, what she had seen and the police were notified. Lyon told the police his backpack, school folders, and various books were missing. Later that day, a Marin County deputy sheriff observed the Altima driving on Highway 101 with the license plate noted by the witness. When the Altima was stopped, appellant was driving the vehicle and Rondell Newt was in the passenger seat. Mason Newt was in the rear. The witness came to the scene and identified appellant, Rondell Newt, and Mason Newt as the suspects, as well as the car. When the officers searched the Altima, they found in the vehicle a JanSport backpack containing an HP laptop and an iPod Touch, six Redbox movie and video game rentals, and pieces of broken glass. That same day, police received reports of several window-smash thefts from automobiles. One of the victims, Alejandra Torres, was interviewed by the police and identified the HP laptop, iPod Touch, certain textbooks on cinema, a black purse, pink wallet, passport, Florida identification card, Wells Fargo credit card, and various chargers as items stolen from her car and found by the police in the Altima driven by appellant. One of Torres's credit cards was used to rent the video games and also in an attempted gas transaction, in which the card was declined.


After the passage of Proposition 47, certain crimes can be reduced to misdemeanors following a felony guilty plea. This change in the law applies to particular crimes committed before the passage of Proposition 47 by the voters. The offense of receiving stolen property was among those crimes that potentially could be reduced to a misdemeanor. However, for a person to enjoy the benefit of reduction to a misdemeanor, he or she must petition the trial court for the reduction and the burden to make a proper petition is on the defendant petitioner. (People v. Perkins (2016) 244 Cal.App.4th 129, 137; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)

One feature of appellant's burden is to establish the value of the stolen property was less than $950. A review of the allegation in count 2 of this complaint indicates the property of two backpacks was specifically identified as the stolen property, namely, the items taken in the Torres and Lyon auto burglaries. By entering his guilty plea, appellant admitted possession of these stolen items. (People v. Wallace (2004) 33 Cal.4th 738, 749-750.)

It is true the trial court determined the amount of restitution appellant was obligated to pay to be $305. However, the amount of restitution does not fix the value of the stolen property for section 1170.18 purposes. It appears victim Torres was able to recover most, if not all, of her stolen property. Her restitution claim would not be substantial, if any. It does not appear Lyon enjoyed the recovery of his property, based on the only evidence before the trial court, the probation report details. The trial court correctly distinguished restitution value and value for purposes of Proposition 47. There was no need to prove-up the Torres loss because she got her stolen property back. Yet the prove-up was needed for Lyon and that was set at $305 by the sentencing court.

In order to satisfy his burden, appellant must present credible, factual evidence supporting his claim the value of the stolen property was less than $950. The simple process of submitting an attorney's declaration as the basis for establishing this valuation amount is not sufficient. (People v. Johnson (2016) 1 Cal.App.5th 953, 968, fn. 16.) The proper process for any petitioner seeking this relief is to file a petition wherein "defendant . . . describe[s] the stolen property and attach[es] some evidence, whether a declaration, court documents, record citations, or other probative evidence showing, for each conviction, that the stolen [items] did not exceed $950 in value." (People v. Perkins, supra, 244 Cal.App.4th at p. 141, italics added.)

In his petition for resentencing, appellant focused on the restitution sum of $305 as his amount for reducing the offense from a felony to a misdemeanor. His counsel relied exclusively on the valuation listed in Lyon's claim for restitution and simply skirted the value of Torres's stolen goods. He therefore disregarded the entire value of the property belonging to Torres which was recovered by the police in the Altima. While appellant had the burden of establishing a total value under $950, he contended he satisfied the obligation by positing the restitution sum and then shifting the burden to the prosecution to prove the amount of Torres's property exceeded the $950. Not so. His attorney made no reference to the value of the Torres's property relative to satisfying the $950 prong in section 1170.18. As indicated, it is appellant's burden to clear the $950 hurdle, not the government's. Consequently, the petition submitted in this case does not satisfy appellant's initial burden to merit relief under section 1170.18 and Proposition 47. We do observe the trial court denied the petition to reduce the offense without prejudice, permitting appellant to recalendar the issue if adequate proof on the Torres items is discovered.


Because appellant failed to satisfy his burden of proof in the initial petition filed here, we affirm the trial court finding he was not entitled to relief. Our determination is based only on the petition we review in this appeal.


The judgment is affirmed.

Margulies, Acting P. J. and Banke, J., concurs.


1. Unless otherwise stated, all statutory references are to the Penal Code.


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