Opinion
E067437
04-17-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSICA KELLY BOCK, Defendant and Appellant.
Steven Brody, 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, Amanda E. Casillas, and Britton B. Lacy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF025025) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Steven Brody, 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, Amanda E. Casillas, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
In 2008, defendant and appellant Jessica Kelly Bock pled guilty to receiving stolen property (Pen. Code, § 496, subd. (a), count 1) and possession of a forged check (Pen. Code, § 470, subd. (d), count 4), pursuant to a plea agreement. In exchange, a trial court dismissed another count of receiving stolen property (Pen. Code, § 496, subd. (a), count 3), burglary (Pen. Code, § 459, count 2), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 5), and it placed defendant on probation for a period of 36 months. Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which, among other things, established a procedure for specified classes of offenders to have their felony convictions reduced to misdemeanors and be resentenced accordingly. (Pen. Code, § 1170.18.) Defendant filed a petition for resentencing, pursuant to Penal Code section 1170.18. A trial court found her ineligible for relief and denied the petition.
Defendant now appeals. We affirm.
PROCEDURAL BACKGROUND
On March 25, 2008, defendant was charged by felony complaint with receiving stolen property (Pen. Code, § 496, subd. (a), counts 1 & 3), burglary (Pen. Code, § 459, count 2), possession of a forged check (Pen. Code, § 470, subd. (d), count 4), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 5). On July 21, 2008, defendant entered a plea agreement and pled guilty to counts 1 and 4. As a factual basis for the plea, defendant admitted as to count 1 that "on or about July 24th of 2007 in the County of Riverside, the State of California, [she] did willfully and unlawfully receive certain property, in this case, personal checks and mail, knowing the property had been obtained by theft; and [she] did . . . conceal or withhold that property from its rightful owner." As to count 4, defendant admitted that "on or about June 29th of 2007 . . . [she] did . . . willfully and unlawfully falsely make, alter, forge, or counterfeit a forged check, and did utter, publish, pass, or attempt to pass that check as true and genuine, that [she] knew . . . was fraudulent." The court placed defendant on probation for a period of three years, with 365 in county jail. The court ordered all remaining counts and allegations dismissed.
On September 8, 2016, defendant filed a Proposition 47 petition for resentencing. She filed a form petition and checked the boxes indicating that she had been convicted of forgery (Pen. Code, § 470) and receiving stolen property (§ 496, subd. (a)). She also checked the box stating that she "believe[d] the value of the check or property does not exceed $950."
All further statutory references will be to the Penal Code, unless otherwise noted.
The People filed an opposition, arguing that defendant was not entitled to relief because she "doesn't give specifics or value," and she "failed to meet burden [and] prove either charge qualifies."
The trial court denied the petition, stating the following: "per imaged police [report]—Def[endant] had over $1,500.00 in stolen checks made out to various places. She has failed to show she qualified for relief. (over $950.00)."
ANALYSIS
Defendant Failed to Establish Eligibility for Relief
Defendant argues the court erred in denying her Proposition 47 petition because both offenses involved property valued at less than $950. She specifically claims the evidence demonstrates that the total fair market value of the checks in her possession was less than $950. She further asserts that she pled guilty to only one count of forgery, and none of the checks forged had a value greater than $950.
The People argue, and we agree, that defendant failed to meet the initial burden of establishing her eligibility for relief under Proposition 47. "[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) In Sherow, the defendant's petition "sought resentencing as to all five counts without any separate discussion of the counts, no reference to facts or evidence and no argument." (Id. at p. 877.) The Sherow court determined that the defendant's "blanket request for resentencing on all counts without any effort to deal with those which might have involved less than $950 or to discuss any facts surrounding the offense was fatally defective. Thus the trial court properly denied the petition." (Ibid.)
Similarly, the petition at issue here merely stated that defendant had been convicted of violating sections 470 and 496, subdivision (a), and that she "believed" the value of the property was less than $950. No further facts regarding her eligibility for sentencing were given and no evidence was attached. Based on the foregoing, defendant was not entitled to resentencing under section 1170.18 since she did not meet her burden of showing she was eligible for resentencing. (Sherow, supra, 239 Cal.App.4th at p. 878.)
For the first time on appeal, defendant argues the police report reviewed by the trial court established that the fair market value of the stolen property—the four checks in her possession at the time of her arrest—was less than $950. The People contend that defendant did not rely on the police report below; thus, she has forfeited her claim that the fair market value of the stolen checks did not exceed $950 by failing to raise the argument or present any supporting evidence below. In her reply brief, defendant responds that the People cite no authority that a trial court cannot rely on evidence in the record unless it is presented by the defendant. She also points out that her argument is based on the same evidence that was considered by the trial court, which was the police report. Defendant correctly states that the trial court denied her petition based information gathered from the police report. However, we note that the parties did not submit on the police report as the factual basis for the plea. Rather, the factual basis for the plea was defendant's admission of the allegations in the felony complaint. We also note that the allegation defendant pled guilty to in count 1 stated that the stolen property she received consisted of "personal checks and mail." Defendant fails to account for any stolen mail. In any event, as the People point out, defendant did not claim in her petition that the fair market value of the property was less than $950.
In denying defendant's petition, the court stated that, according to the police report, defendant had over $1,500 in stolen checks. We observe that, according to the police report, the sum total of the four checks found in defendant's possession was $1,407. It is unclear how the trial court determined that defendant had over $1,500 in stolen checks. --------
With respect to the forgery conviction, defendant argues that she pled guilty to forgery of a single check, and a court may not aggregate the total value of all the related checks to establish the value in determining whether the offense qualifies for relief. (People v. Salmorin (2016) 1 Cal.App.5th 738, 745-754.) Furthermore, since no check forged was in an amount greater than $950, the value of any check that was the basis for her forgery conviction was less than $950. The People concede that the court could not aggregate the values of the four checks when defendant pled guilty to only the forgery of a single check and that the face value of any single check, as stated in the police report, did not exceed $950. However, the People argue that defendant did not present evidence below, so there was no opportunity to respond. Thus, the People assert that the matter should be remanded to determine the propriety for relief on this count.
"The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (People v. Romanowski (2017) 2 Cal.5th 903, 916.) Defendant's petition sought resentencing as to both counts "without any separate discussion of the counts, no reference to facts or evidence and no argument." (Sherow, supra, 239 Cal.App.4th at p. 877.) In other words, the petition "gave the trial court no information about eligibility." (Id. at p. 880.) However, "on a proper petition [defendant] may be able to show eligibility." (Ibid.) Thus, we will affirm the order denying defendant's petition "without prejudice to subsequent consideration of a properly filed petition." (Id. at p. 881.) We note that, upon filing a petition, defendant may request a hearing (e.g., to prove fair market value). (§ 1170.18, subd. (h).)
DISPOSITION
The trial court's order denying defendant's Proposition 47 petition is affirmed without prejudice to subsequent consideration of a properly filed petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.