Opinion
F073976
07-25-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DABBS, Defendant and Appellant.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF116067A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Colette M. Humphrey, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J., and Smith, J.
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Pursuant to Penal Code section 1170.18, subdivision (f), a portion of Proposition 47, defendant Anthony Dabbs petitioned the superior court to reclassify as a misdemeanor his prior conviction of possessing stolen property, a conviction for which he had completed his sentence. The court denied the petition, citing the fact that the record indicated he had been charged with a residential burglary, a charge that was dismissed pursuant to a plea agreement when Dabbs entered a plea to the count of possessing stolen property.
Further statutory references are to the Penal Code unless otherwise noted.
In so ruling, the court failed to apply the correct standards for deciding the petition, as the existence of a dismissed charge is irrelevant to the decision on an application under section 1170.18, subdivision (f), for reclassification of an offense for which the sentence has been served. Another potential ground for denying the application remains, however: a possibility that the value of the stolen property exceeded $950, rendering the offense ineligible for reclassification. We will reverse and remand to allow the trial court to consider this.
FACTS AND PROCEDURAL HISTORY
On June 6, 2016, Dabbs filed a petition pursuant to section 1170.18. The petition stated that in 2006, Dabbs was convicted of possessing stolen property (§ 496, subd. (a)). He received and served a two-year prison sentence. The petition requested that the offense be reclassified as a misdemeanor under section 1170.18, subdivisions (f) and (g). Documents submitted by the People showed that Dabbs had first been charged with one count of residential burglary (§ 460, subd. (a)) and that this was dismissed in exchange for Dabbs's plea to a felony charge under section 496, with the sentence to be limited to the middle term of two years.
The matter was heard in the trial court on June 22, 2016. Defense counsel stated that, according to the police report, Dabbs was found by the police in a car in possession of one piece of property, worth approximately $100, that had been stolen during a residential burglary. Defense counsel further stated that, according to the probation report, the plea agreement did not include a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754. A Harvey waiver is a defendant's agreement, as part of a plea bargain, to allow the sentencing court to consider the facts that supported dismissed counts. Harvey bars this absent the defendant's consent. (People v. Munoz (2007) 155 Cal.App.4th 160, 166-167.)
The prosecutor's response to these remarks appeared to imply that Dabbs might not be eligible for reclassification because the case involved not just possession of stolen property but also residential burglary, an offense that did not become a misdemeanor under Proposition 47:
"Under [Proposition 47] a person who's completed his sentence who had been guilty of a misdemeanor under this act, had this act been in effect at the time of the offense, may file the application.The court stated:
"This was a 460(a). As part of the plea bargain they added a count 496(a), for stipulated term."
"I believe the reason that there's not a Harvey waiver is because all the property was recovered, because the three suspects were caught driving away from the home with the stolen guns in the car. So that's why there was no necessity for a Harvey waiver. But the facts of the case involve a residential burglary, and so I'm going to deny the petition to reduce to a misdemeanor."These remarks concluded the hearing.
The court issued a minute order memorializing the ruling. After reporting that the section 1170.18 petition was denied, the order stated: "Reason: Not eligible."
DISCUSSION
Both parties' briefs assume there is an issue of statutory interpretation here, and include discussions of the law applicable to determining the voters' intentions in enacting Proposition 47. But there is no statutory interpretation problem. The applicable portions of Proposition 47 are straightforward. The issue is only whether the trial court applied them correctly.
Under section 1170.18, a defendant who has received a felony conviction, and completed a sentence, for an offense that became a misdemeanor under Proposition 47, can apply to the trial court for reclassification of his conviction:
"A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
Proposition 47 amended the statute on possession of stolen property, section 496, to make the offense a misdemeanor unless the value of the stolen property exceeds $950. (§§ 496, subd. (a), 1170.18, subd. (a).)
In a Proposition 47 application based on a violation of section 496, subdivision (a), the defendant has the initial burden of presenting evidence that the property was worth $950 or less, as part of his or her burden of showing eligibility. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-450; People v. Perkins (2016) 244 Cal.App.4th 129, 136-137; People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008; People v. Johnston (2016) 247 Cal.App.4th 252, 258, review granted, July 13, 2016, S235041; People v. Johnson (2016) 1 Cal.App.5th 953, 964-965; People v. Hudson (2016) 2 Cal.App.5th 575, 583-584, review granted, Oct. 26, 2016, S237340.)
If a conviction is eligible for reclassification, the court must grant the defendant's application:
"If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
The statute makes exceptions for defendants who have what have been called "superstrike" priors, i.e., those listed in section 667, subdivision (e)(2)(C), or priors for which sex offender registration is required. (§ 1170.18, subd. (i).) These exceptions are not at issue in this case, so far as the appellate record discloses.
The briefing submitted here suggests that the trial court would have had discretion to deny Dabbs's petition, even if his offense is eligible for reclassification, if the court had found that granting the petition would have posed an unreasonable risk to public safety. This is not correct. The exception for an unreasonable risk to public safety, found in section 1170.18, subdivision (b), applies to petitions for resentencing submitted by offenders still serving their sentences, filed pursuant to section 1170.18, subdivision (a). This exception does not apply to applications for reclassification filed pursuant to section 1170.18, subdivision (f), by offenders who have already served their sentences. The reason for the distinction, presumably, is that granting the application cannot have an effect on public safety when the defendant has already been released.
Here, the trial court could have found Dabbs ineligible if it had determined that he failed to carry his initial burden of showing the property was worth $950 or less. It did not so find, however. Defense counsel said the police report placed the value at about $100, and the prosecutor forewent his opportunity to say otherwise. There do not appear to be any other grounds upon which the court could properly have denied the petition.
The only reasonable interpretation of the record, in our view, is that the court thought the presence in the record of a dismissed count of an offense not subject to reclassification meant Dabbs was not eligible. This was error. There is no authority for the notion that a count dismissed pursuant to a plea agreement, with or without a Harvey waiver, can render a defendant ineligible for reclassification. Eligibility under section 1170.18, subdivision (f), is determined by a defendant's offenses of conviction, not offenses he was charged with but not convicted of, and not by any discretionary judgment about the surrounding circumstances. This is so regardless of how the conviction was obtained, "whether by trial or plea." (§ 1170.18, subd. (f).)
Dabbs's briefs argue that the ruling was erroneous because there was no Harvey waiver. This is not quite right. Dismissed counts and their underlying facts are irrelevant to the decision on a section 1170.18, subdivision (f) application, regardless of whether or not there is a Harvey waiver. --------
The trial court did not consider the factual issue of the value of the property. On remand, it should do so.
The People suggest we should ignore the basis on which the court actually ruled and affirm the judgment on the ground that Dabbs did not bear his burden of proving the value of the property. In general, we can affirm a judgment if the record shows the result to be correct, even if the trial court employed incorrect reasoning in reaching it. Here, however, the record does not show the result to be correct. All we can say is that the court employed incorrect reasoning and we do not know what the result would be under the correct standards. The value of the property was the only question, among those potentially subject to reasonable dispute, upon which Dabbs's eligibility turned. It would be improper for us to decide that question against him in the first instance based on a failure to bear the burden of proof, given what happened in the trial court: Defense counsel appeared to rely on a genuine basis in the record for believing the stolen property was worth only $100, and the prosecutor did not contest that issue, but instead opted to argue for denial on a different ground. At the same time, we do not hold that the People waived or forfeited the valuation issue. Both parties will have an opportunity to litigate the valuation issue under the applicable standards on remand, if they choose to do so. We express no opinion on the merits of that issue.
Regarding the standards applicable to that issue, we offer the following information for the guidance of the court and parties on remand:
The defendant's evidence of eligibility can come from any source and is not limited to the record of conviction. (Johnson, supra, 1 Cal.App.5th at p. 971; Perkins, supra, 244 Cal.App.4th at p. 140 & fn.5.) The evidence used to support a showing of the value of the stolen property can take a variety of forms. A declaration containing a defendant's "testimony about the nature of the items taken" could potentially do the job. (Sherow, supra, 239 Cal.App.4th at p. 880.) Facts in the record of conviction relevant to the value of the property can be relied on. (Perkins, supra, 244 Cal.App.4th at p. 137.) In Bush, the nature of the stolen property upon which the convictions were based (some identification cards having apparently no quantifiable monetary value), as reflected in a probation report on which both parties relied, was sufficient to satisfy the defendant's initial burden. (Bush, supra, 245 Cal.App.4th at pp. 1007-1009.) If the defendant makes the necessary showing of eligibility, the People then have the opportunity to attempt to establish the defendant's ineligibility for resentencing.
The evidence upon which a defendant intends to rely—or at least some of it—should be attached to the petition. (Sherow, supra, 239 Cal.App.4th at p. 880; Perkins, supra, 244 Cal.App.4th at pp. 137, 140; Johnson, supra, 1 Cal.App.5th at p. 970.) The trial court has discretion to deny the petition without a hearing if it is not supported by some evidence sufficient to create a dispute about the defendant's eligibility for resentencing. (Perkins, supra, 224 Cal.App.4th at pp. 137, 139.) Dabbs did not attach any evidence to his petition to show the value of the property, but it is too late to rely on this as a reason to deny the petition now. The trial court chose to hold a hearing, and during that hearing Dabbs proffered the facts in the police report about the value of the property. This was enough, at least, to clear the hurdle of creating a dispute, so a summary denial for an insufficiency in the petition itself is no longer an option.
DISPOSITION
The order denying the application to reclassify is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.