Opinion
H045305
11-29-2018
THE PEOPLE, Plaintiff and Respondent, v. CHAD JARRETT ALEXANDER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B1049612)
I. INTRODUCTION
Defendant Chad Jarrett Alexander pleaded no contest to felony concealing or withholding stolen property (former Penal Code, § 496, subd. (a)) among other counts. The offense involved two pieces of stolen mail. Defendant was sentenced to county jail.
Defendant's middle name is variously spelled in the record as "Jarrett" and "Jerrett."
All further statutory references are to the Penal Code unless otherwise indicated.
After defendant completed his sentence, he filed a petition with the trial court pursuant to section 1170.18, subdivision (f), which was enacted as part of Proposition 47, to have his felony conviction redesignated as a misdemeanor. Defendant filed several documents in support of the petition, including a declaration from counsel. Counsel stated on information and belief that mail has only nominal value, and that the mail at issue did not exceed $950 in value. The trial court denied the petition, finding that defendant failed to provide evidence of the value of the stolen mail.
On appeal, defendant contends that the trial court erred in denying the petition because he established that the value of the mail was less than $950. For reasons that we will explain, we will affirm the trial court's order.
II. BACKGROUND
A. The Conviction for Concealing or Withholding Stolen Property
In 2011, defendant pleaded no contest to three counts of using personal identifying information without authorization (former § 530.5, subd. (a)), one count of forgery by possession of a completed check (§ 475, subd. (c)), and one count of concealing or withholding stolen property (former § 496, subd. (a)). Defendant also admitted an allegation that he was out of custody on bail at the time of the latter two offenses (former § 12022.1). In 2012, the trial court sentenced defendant to county jail with a period of mandatory supervision.
B. The Petition for Redesignation as a Misdemeanor
In 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) Proposition 47 "reduced the punishment for several crimes that were previously punished as felonies." (People v. Romanowski (2017) 2 Cal.5th 903, 906 (Romanowski).) Prior to Proposition 47, former section 496, subdivision (a) provided that receiving, concealing, or withholding stolen property was punishable as either a felony or a misdemeanor. (Former § 496, subd. (a); Stats. 2011, ch. 15, § 372, p. 417.) Section 496 now provides that "if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor." (§ 496, subd. (a).) Proposition 47 also added section 1170.18, which permits a defendant who has completed his or her sentence to petition to have his or her felony conviction redesignated a misdemeanor. (§ 1170.18, subds. (f) & (g); Gonzales, supra, at p. 863.)
In June 2017, defendant filed a petition to have his felony conviction for concealing or withholding stolen property (former § 496, subd. (a)) redesignated as a misdemeanor pursuant to Proposition 47 (§ 1170.18, subd. (f)). In support of the petition, defendant provided (1) a copy of the information, (2) a redacted excerpt from a police report, and (3) a declaration from counsel.
The information alleged regarding the count for concealing or withholding stolen property (former § 496, subd. (a)) that defendant "did conceal and withhold and aid in concealing and withholding from the owner, property, mail addressed to [the victim], that had been stolen, knowing the property to have been stolen."
According to the redacted police report, the police showed defendant "two pieces of mail bearing the name [redacted] that were recovered from his Toyota Camry parked near the Ramada hotel room, and he stated he did not remember stealing these pieces of mail or specific addresses he stole mail from. [Defendant] admitted that he did not know who [redacted] was." In other portions of the police report, defendant admitted filing insurance claims for cell phones that he had purchased but claimed the phones were lost in order to get new ones; admitted stealing checks from the mail; and admitted cashing checks that he had stolen, as well as checks that someone else had stolen. Defendant also indicated that he accessed other people's "Vcom" accounts to cash checks. He stated that "he did not know the names of the people who belonged to the Vcom accounts," and that he just entered a social security number "to access their account."
In defense counsel's declaration supporting the petition, counsel stated: "According to [the redacted excerpt from the police report], [defendant] was found with miscellaneous pieces of stolen mail. I am informed and believe that mail holds only nominal value. Thus, I am informed and believe that the value of the mail . . . did not exceed $950."
In a written response, the prosecutor contended that the petition should be denied because defendant failed to provide information showing the value of the mail addressed to the victim, or evidence that the value of the property was under $950.
The trial court set the matter for a hearing to determine defendant's eligibility for relief. The court stated that "[a]t the hearing Defendant shall produce evidence sufficient to establish the value of the stolen property."
C. The Hearing and the Trial Court's Order
On July 28, 2017, the hearing was held on defendant's petition. At the outset of the hearing, the trial court stated that there was "no information in the Court's file from which one can ascertain the value of [the stolen property]."
Defense counsel acknowledged that the value of two pieces of mail were at issue. Counsel stated that defendant did not file a petition for relief regarding another count "related to concert tickets." Regarding mail in general, counsel argued that mail has a person's name and address on it, and that having someone else's mail was similar to possessing the person's identification card or driver's license. Counsel argued that under People v. Bush (2016) 245 Cal.App.4th 992 (Bush), an identification card does not have monetary value. Counsel contended that defendant had therefore met his burden of showing that the value of the two pieces of mail was under $950.
It is not clear why defense counsel referred to the count relating to concert tickets. In making this reference, defense counsel identified count 7 of the information. Count 7, however, for concealing or withholding stolen property (concert tickets) was alleged against a codefendant only, and defendant was never convicted under this count. Accordingly, defendant could not have filed a petition for relief regarding that count.
A separate count for conspiracy, which referred to the possession of six concert tickets, was alleged against defendant and a codefendant. Defendant was not convicted of this count, as the count was dismissed as part of the plea bargain.
The prosecutor observed that defense counsel's argument only pertained to the outside of the mail, and that there was no information about the contents of the mail. According to the prosecutor, there could have been tickets, credit cards, checks, or similar items valued over $950 inside the mail.
Defense counsel replied, "Even assuming each piece of mail contained a credit card . . . , black market value is generally—from my research—anywhere from $12, at most, $30. It would still come under [$]950."
After hearing argument from counsel, the trial court determined that defendant failed to meet his burden of establishing eligibility for relief and denied the petition. The court explained: "There's no indication that this mail had been opened at the time it was recovered; so the contents of the mail and thus the value of the mail is entirely unknown, based on the information before the Court. What we do know is that unopened mail may contain substantially valuable property, including, as was in one case, in a different unrelated count, the defendant stole mail, which included an envelope containing concert tickets which obviously had significant value above and beyond an ID card. [¶] The defendant also described that he was able to obtain substantial amounts of cash from vcom machines if he obtained only a social security number; didn't even need the person's name in order to use those accounts. So for that reason, we stand here where we have absolutely zero information about the value of this particular stolen mail. Without some evidence of that value, the Court cannot simply assume that it must have been empty or valueless mail."
III. DISCUSSION
Defendant contends that the trial court erred by denying his petition because he "adequately established" that the value of the mail was less than $950. The Attorney General contends that defendant did not meet his burden to establish that the mail was worth less than $950.
A. The Burden of Proof and the Standard of Review
On a Proposition 47 petition, the defendant has the "ultimate burden" of proving eligibility for redesignation of a felony conviction as a misdemeanor. (Romanowski, supra, 2 Cal.5th at p. 916.) "[A]n evidentiary hearing may be 'required if . . . the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (Ibid.) Where the offense of conviction is a theft crime reclassified based on the value of stolen property, a successful petition includes a "showing the value of the property did not exceed $950. [Citations.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins).)
"In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. . . . But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' [Citations.]" (Romanowski, supra, 2 Cal.5th at p. 916.) A defendant who does not present any evidence as to the value of the stolen property does not meet his or her initial burden in the trial court, and accordingly he or she cannot meet his or her burden on appeal of establishing trial court error. (People v. Johnson (2016) 1 Cal.App.5th 953, 970 (Johnson).)
On appeal following the denial of Proposition 47 petition, we review the trial court's " 'legal conclusions de novo and its findings of fact for substantial evidence.' [Citation.]" (Perkins, supra, 244 Cal.App.4th at p. 136.)
B. Determination of the Value of the Stolen Property
Defendant presented evidence that the stolen property consisted of two pieces of mail addressed to the victim. Defendant did not present any evidence concerning the contents of the mail. As the trial court observed, there was no indication that the mail had been opened. The court correctly observed that it could not assume the mail was "empty or valueless." Given that the court had no evidence about the contents of the mail, let alone evidence concerning the value of the contents, the court properly determined that defendant failed to meet his burden of establishing eligibility for relief. (Romanowski, supra, 2 Cal.5th at p. 916; Perkins, supra, 244 Cal.App.4th at pp. 136-137; Johnson, supra, 1 Cal.App.5th at p. 970.)
We are not persuaded by defendant's contentions that the trial court erred in denying his petition.
First, defendant contends that, based on his petition, he "met his prima facie burden" of showing eligibility for relief and was granted an evidentiary hearing. According to defendant, at the hearing there was a "presumption . . . that the value of the property was less than $950." He argues that the prosecutor had to provide evidence at the hearing to show that he was ineligible for relief or "to rebut the presumption that the two sealed envelopes were worth $950 or less."
The authority cited by defendant, People v. Washington (2018) 23 Cal.App.5th 948 (Washington), does not support the contention that if an evidentiary hearing is granted, there is a presumption in the defendant's favor that the value of the property is $950 or less. In Washington, the appellate court explained that, "[i]f the prosecution chooses to oppose a Proposition 47 petition on the ground the value of the stolen property exceeds $950, and this fact is not established by the record of the initial plea or conviction, the superior court should then hold an evidentiary hearing at which the value of the property taken may be considered." (Id. at p. 957, italics added.) Similarly, in Romanowski, the California Supreme Court stated that an evidentiary hearing may be required if the trial court finds " 'the [defendant's] entitlement to relief depends on the resolution of an issue of fact.' " (Romanowski, supra, 2 Cal.5th at p. 916.) Nonetheless, "[t]he ultimate burden of proving section 1170.18 eligibility lies with the [defendant]. [Citation.]" (Ibid.) In other words, notwithstanding the granting of an evidentiary hearing, a defendant still has the "ultimate burden" of establishing eligibility for relief. (Ibid.) Defendant fails to provide legal authority for the proposition that he is entitled to a presumption in his favor regarding the value of the property simply because the court granted an evidentiary hearing in this case.
Second, defendant contends he made a prima facie showing that the value of the mail was worth less than $950 based on his petition and supporting documents. The supporting documents including a declaration from counsel, who stated on information and belief that the value of the mail did not exceed $950. Counsel's statement of value was based on the redacted police report and the allegations in the information regarding the count for concealing or withholding stolen property, to which defendant pleaded no contest. Neither the redacted police report nor the information identified what was inside the stolen pieces of mail, let alone the value of what was inside. As defendant concedes on appeal, the mail was unopened and no one in this case knows what was inside the mail. On this record, defendant failed to establish that the value of the stolen mail did not exceed $950.
Third, defendant contends that, although the mail was unopened, there was evidence in the record from which the trial court could draw a conclusion about the value of the mail, and the court erred "when it did not use the evidence in the record to determine the value."
Defendant's contention is not supported by facts in the record or the law. He contends that there is evidence "the envelopes weren't from a financial institution" and they "did not feel as if they contained a credit card." Defendant also suggests that the pieces of mail may have been "junk mail." None of these factual assertions is supported by a citation to the record. Moreover, defendant admits that "no one . . . knows what was inside the envelopes because they were sealed, unopened and unused."
Defendant also contends that "the investigating officers did not determine the envelopes to contain anything valuable such as expensive concert tickets as they did with a different envelope." To the extent defendant is contending that the investigating officers affirmatively determined that the two unopened envelopes at issue did not contain anything valuable, defendant fails to provide a record citation for this factual assertion. Indeed, the record is silent as to whether the investigating officers made any determination regarding the value of the contents of the mail at issue. Moreover, "[w]hether defendant was charged or convicted of other crimes involving property exceeding $950 has no bearing on whether [the count at issue] qualif[ies] for resentencing under section 1170.18." (Bush, supra, 245 Cal.App.4th at p. 1007.)
Defendant further contends that the victim did not make a claim for restitution, and therefore her mail must not have been valuable. However, the lack of a restitution claim in this case does not shed any light on the value of the stolen mail. Given that the police apparently recovered the mail unopened, the victim's failure to make a claim for restitution may simply reflect the fact that the victim was able to recover her mail, did not suffer a loss, and therefore did not submit a claim for restitution. (See People v. Chappelone (2010) 183 Cal.App.4th 1159, 1180 ["a victim is not entitled to restitution for the value of property that was returned to him or her, except to the extent there is some loss of value to the property"]; Bush, supra, 245 Cal.App.4th at p. 1007 [observing that no restitution was awarded to the victims "possibly because the [stolen property] could be returned to the owners"].)
Defendant's citation to Bush, supra, 245 Cal.App.4th 992, does not advance his argument that the victim's failure to make a claim for restitution means the value of the mail was less than $950. In Bush, the parties knew that the stolen items were identification cards. (Id. at p. 1006.) In contrast, in this case there was no evidence about the contents of the stolen mail. Thus, unlike in Bush, where the defendant "met his initial burden because the stolen property consisted of identification cards, in which generally the monetary loss to the victim is difficult to quantify as exceeding $950" (id., at p. 1008), the trial court in this case did not have sufficient evidence upon which it could determine what was stolen or the value of the stolen property.
Fourth, defendant's citation to authorities for the proposition that various paperwork or plastic cards are only worth the paper or plastic on which they are printed is not helpful. Without knowing what was inside the pieces of stolen mail, no assessment can be made of the value of the mail. Further, the California Supreme Court has explicitly rejected the argument that the value of a stolen credit card should be measured by "the value of the plastic," since credit cards contain information that can have a much higher market value. (Romanowski, supra, 2 Cal.5th at p. 915.) The court explained that the value of a stolen item is " 'the reasonable and fair market value' " of the item. (Id. at p. 917; see § 484, subd. (a).) The court further stated that, "[w]hen stolen access card information lacks a legal market, . . . courts may consider evidence concerning the potential for illicit sale of the access card information in order to determine its value." (Romanowski, supra, at p. 917.) In this case, defense counsel argued at the hearing on defendant's petition that the black-market value of a credit card is $12 to $30, but there is no evidence in the record to support such an assertion.
Lastly, defendant fails to provide legal authority that supports his contention that stolen property does not have any value "unless and until [the property] is used by [the defendant]." The authority cited by defendant simply explains how to calculate the reasonable and fair market value of stolen property (People v. Pena (1977) 68 Cal.App.3d 100, 104; see CALCRIM No. 1801) but does not require the defendant to have used or sold the stolen property for the property to have value.
In sum, defendant did not present any evidence as to the contents of the stolen mail or the value of the contents. As a result, defendant failed to meet his burden of showing that his felony conviction for concealing or withholding stolen property was eligible to be redesignated as a misdemeanor. (See Romanowski, supra, 2 Cal.5th at p. 916; Perkins, supra, 244 Cal.App.4th at pp. 136-137; Johnson, supra, 1 Cal.App.5th at p. 970.) The trial court therefore properly denied defendant's petition.
IV. DISPOSITION
The July 28, 2017 order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
GROVER, J.