Opinion
E066303
06-28-2017
THE PEOPLE, Plaintiff and Respondent, v. MANUEL LOUIE PEREZ, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1303096) OPINION APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, Judge. Affirmed. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
The District Attorney of San Bernardino County charged defendant Manuel Perez with one felony count of operating a chop shop (Veh. Code, § 10801) and one felony count of receiving stolen property (Pen. Code, § 496, subd. (a)). Perez pled guilty to the receiving stolen property count in return for dismissal of the chop shop count.
After the voters passed the Safe Neighborhood and Schools Act (Proposition 47), Perez filed an application to redesignate his conviction a misdemeanor under new Penal Code section 1170.18, subdivision (f). The application held no information about the stolen property. The People opposed because the "stolen car was worth more than $950," and the trial court set a hearing.
Though the parties did not submit evidence, both sides represented the receiving stolen property conviction rested on Perez's possession of the body of a 1994 Acura Integra, dismantled to some degree and without an engine. Defense counsel said the Edmunds website pegged the value of the car—with an engine—at $1,100. The court denied the application because the intact car was worth more than $950. The court reasoned Perez should not get the benefit of his conduct in operating the chop shop, which is what lessened the car's value.
Perez contends the trial court erred by determining the value of the intact vehicle rather than the value of the vehicle in its condition when law enforcement found it in his possession. We agree. However, we must affirm because Perez failed to meet his burden of establishing the fair market value of the car as recovered.
I
FACTUAL BACKGROUND
The District Attorney of San Bernardino County filed a two-count felony complaint against Perez. Count 1 alleged Perez committed "the crime of CHOP SHOP OPERATION, in violation of VEHICLE CODE SECTION 10801, a felony." Count 2 alleged Perez committed "the crime of RECEIVING STOLEN PROPERTY, in violation of PENAL CODE SECTION 496(a), a felony" by receiving a "green Acura Integra, which had been stolen and obtained by extortion, knowing that said property had been stolen."
On December 5, 2013, Perez pled guilty to felony receiving stolen property. However, consistent with the plea agreement, the trial court dismissed the operating a chop shop charge. The trial court sentenced Perez to 26 days in county jail with credit for 26 days, and placed him on three years' formal felony probation.
The record on appeal is limited. It contains copies of the felony complaint, the plea form, the Proposition 47 application, the People's response, and various trial court minute orders, as well as transcripts of the plea and redesignation hearings. Though the parties stipulated at the plea hearing the police report provided a factual basis for Perez's guilty plea, the police report is not in the record on appeal. Nor does the record on appeal contain a probation report or any other document outlining the factual circumstances of the charges or the property involved other than the statement in count 2 of the complaint alleging Perez received a stolen green Acura Integra. The trial court did not order victim restitution and Perez did not submit evidence with his petition to demonstrate the condition of the vehicle at the time Perez came into its possession.
Defense counsel did not introduce evidence at the redesignation hearing, but did make certain representations to the court about the condition of the stolen property at the time of Perez's arrest. Defense counsel told the court the "stolen property [Perez] was convicted of receiving . . . was the body of a car, a '94 Acura" which did not include an engine. Defense counsel said, "Looking it up on Edmunds.com in terms of the evaluation, if it were a whole car in running condition it will be worth roughly $1,100," but argued "just the body of the car is clearly worth less than $950.00."
The prosecutor did not question defense counsel's representations about the condition of the car, and represented law enforcement found Perez in possession of a car that had been cut in half and gutted. However, the prosecutor disagreed the trial court should determine the value of the car in the condition in which law enforcement found it. Instead, he argued the trial court should look to the dismissed charge that Perez was operating a chop shop to find Perez had received an intact car with an engine, and value the stolen property in that condition. The prosecutor argued defense counsel's representation that an intact 1994 Acura Integra was worth $1,100 established Perez's receiving stolen property conviction was not eligible for redesignation.
Defense counsel objected. He pointed out "[t]he chop shop charge was dismissed. The defendant's statement was that he received the body of the vehicle." Defense counsel argued on that basis the court should find "it's an object less than $950."
The trial court accepted the prosecutor's argument. "If you have a vehicle that was taken whole, subsequently recovered unwhole, I agree with [the prosecutor]. I don't think you get the benefit of the condition. I think the condition of the car [should be as it] was taken . . . I don't think the intent is to allow someone, regardless of the property, take something of a greater value" then "diminish[] that value . . . [and] get the benefit." The court denied the application, presumably on the basis that the whole car was worth $1,100 according to Edmunds.
Perez timely appealed.
II
DISCUSSION
A. The Trial Court's Determination of Value
Perez contends the trial court erred in finding the value of the stolen vehicle exceeded $950. We agree.
Proposition 47 amended Penal Code section 496, subdivision (a) to make receiving stolen property a misdemeanor when the value of the stolen property is $950 or less. Penal Code section 1170.18, subdivision (f) allows an offender who has completed a felony sentence to apply for redesignation of an offense Proposition 47 has made a misdemeanor. If the petitioner satisfies the eligibility criteria, the statute directs the court to designate the felony offense as a misdemeanor. (Pen. Code, § 1170.18, subd. (g).) We review the trial court's interpretation of these provisions de novo and its findings of fact for substantial evidence. (People v. Rizo (2000) 22 Cal.4th 681, 685; People v. Perkins (2016) 244 Cal.App.4th 129, 136.)
This appeal turns entirely on the value of the stolen vehicle. The trial court denied the application because it found the stolen vehicle was worth more than $950. To reach that conclusion, the court looked to the fact Perez had been charged with operating a chop shop and found Perez received the vehicle "whole" and then dismantled it. But the dismissed charge bears no relation to the condition of the vehicle when Perez received it. The fact Perez was charged with an offense is not evidence at all, and it was not proper for the court to treat as true allegations the district attorney agreed to dismiss for the purpose of deciding the value of property stolen under a separate conviction.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey) is instructive. There, the Supreme Court addressed a trial court's decision to impose an aggravated sentence by relying on a dismissed count. The Supreme Court held it was error to permit the sentencing court to consider the facts underlying the dismissed count. "The record indicates that, in sentencing, the trial court selected the upper . . . term . . . because of certain 'aggravation aspects' . . . including the robbery charged in the dismissed count. [¶] In our view, under the circumstances of this case, it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhancing defendant's sentence. Count three was dismissed in consideration of defendant's agreement to plead guilty to counts one and two. Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, at pp. 757-758, italics added.) The same principles counsel against allowing the trial court to look to facts related to a dismissed count in deciding whether an offender's conviction is eligible for redesignation as a misdemeanor under Proposition 47.
Of course, since Harvey, it has become common practice to include a "Harvey waiver" as part of a plea agreement. The People contend the trial court's reliance on the dismissed charge was appropriate because Perez's plea agreement included a Harvey waiver which authorized the trial court to look beyond the pled count.
However, a Harvey waiver is limited in its application, and does not provide carte blanche authority to utilize a dismissed count for any purpose. The waiver Perez initialed provided: "I waive my rights regarding dismissed counts and/or allegations(s) and any charges the district attorney agrees not to file to the extent that the Court may consider these factors in deciding whether or not to grant probation and in deciding whether or not to impose a midterm, aggravated or mitigated prison term, the appropriate presentence credits, and as to restitution." (Italics added.) This waiver's scope is narrow; it does not include consideration of the dismissed counts for purposes of redesignation under Penal Code section 1170.18. As a result, we conclude the Harvey waiver cannot be used to bootstrap Perez's conduct in count 1 to deny the petition to redesignate count 2 as a misdemeanor.
People v. Hoffman (2015) 241 Cal.App.4th 1304 is not to the contrary. In Hoffman, our colleagues in the Second District, Division 6 held a petitioner's "Harvey waiver allowed the trial court to rely on facts underlying the dismissed counts to make whatever sentencing determinations were authorized under section 1170.18." (Id. at p. 1311.) However, Hoffman's waiver "allowed the court to consider the facts underlying the dismissed counts 'in determining sentence.'" (Id. at p. 1307.) That is a much broader waiver than the waiver at issue in this case. As we noted, Perez's waiver extended only to deciding "whether or not to impose a midterm, aggravated or mitigated prison term." Thus, as a factual matter, Perez's waiver did not permit the trial court to look to the allegation that he operated a chop shop.
In any event, even if the court was permitted to accept as true the allegation Perez operated a chop shop, it does not follow Perez received this particular vehicle in operating condition. The trial court took an unwarranted evidentiary leap. As there was no other evidence of the value of the remains of the 1994 Acura Integra, we conclude the trial court's finding that the stolen property was worth more than $950 was not based on substantial evidence.
B. Perez's Burden to Establish Value
We turn now to the evidence of the value of the vehicle in its condition when recovered in Perez's possession.
The means of valuing stolen property is settled under the theft statutes. Penal code section 484, subdivision (a), which defines the crime of theft, directs "the reasonable and fair market value shall be the test" for determining whether a theft offense is a misdemeanor or a felony. The fair market value is the highest price obtainable from a willing buyer by a willing seller, neither of whom is forced to act. It is not the highest price in the market but the highest price a willing buyer and a willing seller will arrive at. (People v. Romanowski (2017) 2 Cal. 5th 903, 915.)
It is well settled a Proposition 47 applicant carries the burden of proof to demonstrate his conviction is eligible for redesignation. (People v. Romanowski, supra, 2 Cal.5th at p. 916; People v. Perkins, supra, 244 Cal.App.4th at pp. 137, 140.) When an applicant appeals denial of an application, he also bears the burden of affirmatively demonstrating error. (People v. Cardenas (2015) 239 Cal.App.4th 220, 227.) Perez has carried neither burden. Perez did not submit to the trial court an affidavit or declaration about the value of the vehicle. Nor did any witness testify about value at the hearing. The complaint identified the make and model of the vehicle. Counsel for both sides appeared to concede the model year of the vehicle and Perez was found in possession of the body of the vehicle, partially dismantled and without an engine.
Defense counsel argued the vehicle "was worth less than $950" because "if it were a whole car in running condition it [would] be worth roughly $1,100.00. But just the body of the car is clearly worth less than $950.00." He based this argument on his representation that he looked up the car model on Edmunds.com. However, defense counsel did not make the Edmunds.com search results or parameters part of the record, and we have no indication what search terms were utilized by counsel in his research. Further, even if we knew the search terms, we would not take a leap of faith that the modified vehicle depreciated in value to something less than $950. At oral argument, Perez argued the trial court deprived his counsel of the chance to present evidence to support the representation when it ruled (erroneously, as we hold here) that he should be charged with the value of the whole vehicle. We have reviewed the record carefully and do not agree. Defense counsel could have supported his representation with an offer of proof at the outset of the hearing or after the court ruled, but did not do so.
Defense counsel essentially left the trial court and this court to speculate as to the value of the vehicle after the engine was removed. We refuse to do so, and affirm the trial court on the alternative basis that Perez did not meet his burden of establishing the value of the stolen property did not exceed $950. (People v. Perkins, supra, 244 Cal.App.4th at p. 139.) To be clear, we remain agnostic on the value of the stolen property. We do not find it was worth more than $950, only that Perez failed to establish it was worth less, despite having the opportunity to do so.
III
DISPOSITION
We affirm the order.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.