Opinion
F071522
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JAMES RODRIGUEZ, Defendant and Appellant.
Sylvia W. Beckham, 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, Daniel B. Bernstein and Jennifer M. Poe, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 3843 & 4051)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Sylvia W. Beckham, 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, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Timothy James Rodriguez (defendant) petitioned the Madera County Superior Court, pursuant to Penal Code section 1170.18, subdivision (f), for reduction to misdemeanors of his prior felony convictions in three separate cases. His petition was granted in one case, but denied in two others. He now challenges the denials. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
On November 15, 1972, in Madera County Superior Court case No. 3843, a jury convicted defendant of burglary in violation of section 459. According to the probation officer's report, defendant stated he went with Felipe Rubio, but did not enter the building himself. He also said he used heroin prior to committing the crime that night. Judy Benson related she was with "Phil" outside a pool hall, waiting to obtain heroin, when defendant arrived. This was approximately 9:30 or 10:00 at night. Defendant had heroin and provided them with some. He had burglarized someplace earlier. The probation report related that neither victim, both of whom were doctors, knew defendant. One did not get any of his property back. It was valued at $250. The other recovered all his property; however, a typewriter valued at $90 was so badly damaged it had to be replaced.
On December 18, 1974, in Madera County Superior Court case No. 4051, defendant was convicted, following a trial, of second degree burglary in violation of section 459. According to the Madera County Sheriff's report, as summarized in the report of the probation officer, the sheriff's department was notified of a burglary alarm sounding at a service station just before 1:00 a.m. Responding law enforcement officers found there had been a forced entry into the station, and items had been moved around inside. Defendant and another man were found hiding inside the station. Some damage was done during the break-in, but nothing was taken.
On December 22, 2014, defendant filed petitions pursuant to section 1170.18, subdivision (f), requesting reduction to misdemeanors of specified felony convictions. Insofar as is pertinent to this appeal, the petitions filed in case No. 3843 and case No. 4051 stated under penalty of perjury:
"I, Timothy James Rodriguez, request reduction of the following felony convictions in this County for which I am no longer serving the term:
"PC § 459, second deg. burglary, two counts, Case No. unknown, sentenced to CYA Dec. 6, 1972
"PC § 496, receiving stolen property, Case No. 3940, sentenced to CYA Sept. 18, 1974
"PC § 459, second deg. burglary, Case No. 4051, sentenced to prison Aug. 15, 1976 [¶] . . . [¶]
"Petitioner has no prior convictions listed in Penal Code section 667, subdivision (e)(2)(C)(iv), Penal Code section 290, or Penal Code section 368, subdivisions (d) or (e). Petitioner asks counsel be appointed at any hearing ordered in response to this Petition. . . ."
On March 19, 2015, counsel was appointed for defendant and the petitions were set for hearing. The court noted defendant appeared to be eligible for reduction only in case No. 3940.
A hearing on the petitions was held on April 17, 2015. The following took place:
"THE COURT: Mr. Rodriguez filed petitions under 1170.18 subdivision (f). And last time we were in court, I provided both counsel with information from the probation department's file, and it would appear based upon that . . . that he may be eligible in Case No. 3940, but definitely not the other two.
"[DEFENSE COUNSEL]: Your Honor, . . . I agree with that analysis in so much as in 3940, my indication is that the theft was two cartons of cigarettes, and so I don't believe that reaches the 950.
"THE COURT: Correct.
"[PROSECUTOR]: I agree, your Honor.
"THE COURT: All right. So in case No. 3940, the matter is reduced to a misdemeanor, pursuant to Section 1170.18. And I believe that's all I need to do in that case. He's already served the sentence in that matter.
"And do you agree, [defense counsel], that the other two matters are not eligible?
"[DEFENSE COUNSEL]: I do, your Honor, because my understanding is that we had a business that was closed at the time in one case — actually, in both cases.
"THE COURT: Both cases.
"[DEFENSE COUNSEL]: So, therefore, that would not be eligible for Prop 47.
"THE COURT: So in case 3843 and 4051, the petitions are denied."
DISCUSSION
On November 4, 2014, voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also provided a mechanism by which a person who has completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, can apply to the trial court that entered the judgment of conviction to have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)
Section 1170.18, subdivisions (f) and (g) provide: "(f) 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. [¶] (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
One of the felonies reduced to a misdemeanor by the Act was second degree commercial burglary. Now if a person "enter[s] a commercial establishment with intent to commit larceny while that establishment is open during regular business hours" and takes or intends to take property with a value not exceeding $950, that person has committed misdemeanor shoplifting, unless he or she has "one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 . . . ." (§ 459.5, subd. (a).) "Any other entry into a commercial establishment with intent to commit larceny is burglary." (Ibid.) Thus, in order for a defendant to qualify to have his or her prior second degree burglary conviction reduced to a misdemeanor under this statute, " 'the trial court must determine whether [the] defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. [Citation.]' [Citation.]" (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.)
"We review the trial court's construction of Proposition 47 de novo. [Citation.] We review any factual findings in connection with the court's ruling on the petition for substantial evidence. [Citations.]" (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)
Defendant, as the petitioner, had the burden of showing he was eligible to have his prior convictions reclassified as misdemeanors. (People v. Sweeney (2016) 4 Cal.App.5th 295, 302; People v. Johnson (2016) 1 Cal.App.5th 953, 956, 962, 963; People v. Hall (2016) 247 Cal.App.4th 1255, 1263; People v. Bush (2016) 245 Cal.App.4th 992, 1007; People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow (2015) 239 Cal.App.4th 875, 877, 879-880; see Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting."].) It appears defendant met his initial burden of demonstrating he had no prior convictions that made him categorically ineligible for resentencing under section 1170.18, subdivision (i), by so declaring under penalty of perjury in his petitions. (See People v. Hall, supra, 247 Cal.App.4th at p. 1263; see also People v. Abarca (2016) 2 Cal.App.5th 475, 480, review granted Oct. 19, 2016, S237106.) He failed, however, to make a prima facie showing establishing his prior felony convictions were for offenses that would have been misdemeanors had Proposition 47 been in effect at the time the crimes were committed. (People v. Hall, supra, 247 Cal.App.4th at p. 1263.) He simply listed the offenses as second degree burglary, without even stating they involved commercial establishments, let alone that he entered during regular business hours and took or intended to take property with a value of less than $950. (See § 459.5, subd. (a).) This was patently insufficient (see People v. Sweeney, supra, 4 Cal.App.5th at p. 302; People v. Johnson, supra, 1 Cal.App.5th at p. 961; People v. Hall, supra, 247 Cal.App.4th at p. 1263; People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450; People v. Sherow, supra, 239 Cal.App.4th at p. 880), particularly since even after Proposition 47, some entries into commercial establishments with intent to commit larceny remain second degree burglaries that can be punished as felonies (see § 461, subd. (b)).
We see no difference, in this regard, between a reclassification petition brought under subdivision (f) of section 1170.18 by someone who has already completed his or her sentence, and a petition for resentencing brought pursuant to subdivision (a) of that statute by someone currently serving a sentence for a conviction affected by Proposition 47. Accordingly, we find cases dealing with reclassification under subdivision (a) of section 1170.18 applicable to the issues before us on this appeal.
We recognize that at the time defendant's petitions were filed, the law on this point was not yet clear. As a result, some courts have either granted the defendant leave to file an amended petition (People v. Sweeney, supra, 4 Cal.App.5th at p. 303), or affirmed the order denying the petition without prejudice to the trial court's consideration of a subsequent petition supplying evidence of eligibility (People v. Johnson, supra, 1 Cal.App.5th at pp. 970-971; People v. Perkins, supra, 244 Cal.App.4th at pp. 139-140, 142; People v. Sherow, supra, 239 Cal.App.4th at p. 881). Defendant suggests we either do the same or remand the matter for a new eligibility determination.
People v. Sherow, supra, 239 Cal.App.4th 875, which appears to be the earliest published opinion addressing the issue, was filed August 11, 2015, almost eight months after defendant's petitions.
We see no reason to return the matter to the trial court or allow defendant to file supplemented or amended petitions. It is clear defendant was afforded the opportunity, at the hearing on the petitions, to offer additional information demonstrating his eligibility for reduction. Despite this fact, and the fact defense counsel had almost a month in which to research the circumstances of the offenses underlying the convictions in case No. 3843 and case No. 4051 and to consult with defendant — which we assume counsel did, the record on appeal showing nothing to the contrary — counsel agreed defendant was not eligible for reduction in those two cases. Under the circumstances, we fail to see what further proceedings would accomplish.
For this reason, even if we were to conclude the People forfeited any argument the petitions were inadequate by failing to raise it below (see People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), the result would be the same.
Defendant contends, however, that the trial court's finding defendant was ineligible because the businesses that were burgled were closed for business at the time of entries, is not supported by substantial evidence. He says the only factual recitations about the offenses came from probation officers' reports filed after the jury verdicts; the trial court was limited to the records of conviction in determining eligibility; and the probation reports were not relevant, reliable, and admissible parts of those records.
The People say defendant forfeited any challenge to the trial court's consideration of the probation reports by failing to object thereto at the hearing on the petitions. (See People v. Brimmer (2014) 230 Cal.App.4th 782, 799-800.) Defendant counters that no objection was required because the reports were not offered in evidence, any objection would have been futile, and the issue of sufficiency of the evidence is never waived. (See People v. Abel (2012) 53 Cal.4th 891, 924; People v. Neal (1993) 19 Cal.App.4th 1114, 1122.) We tend to agree with the People. While sufficiency-of-the-evidence issues may never be waived, this does not mean a defendant can sit silently while a trial court relies on assertedly impermissible information, then claim evidentiary insufficiency on appeal.
With respect to petitions for recall of sentence and resentencing filed pursuant to section 1170.126, which was added to the Penal Code by Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36), we and other courts have held that "a trial court determining eligibility for resentencing . . . is not limited to a consideration of the elements of the current offense and the evidence that was presented at the trial (or plea proceedings) at which the defendant was convicted. Rather, the court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors. [Citation.]" (People v. Blakely (2014) 225 Cal.App.4th 1042, 1063; accord, e.g., People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1327 ["[T]he trial court must determine the facts needed to adjudicate eligibility based on evidence obtained solely from the record of conviction"].) At least one court has said this is so because "[t]he factual determination of whether the . . . offense was committed under circumstances that disqualify [the] defendant from resentencing under [Proposition 36] is analogous to the factual determination of whether a prior conviction was for a serious or violent felony under the three strikes law. Such factual determinations about prior convictions are made by the court based on the record of conviction. [Citation.]" (People v. Hicks, supra, 231 Cal.App.4th at p. 286, citing People v. Guerrero (1988) 44 Cal.3d 343, 355.)
A record of conviction comprises "only those documents that reliably reflect the conduct of which a defendant was convicted." (People v. Houck (1998) 66 Cal.App.4th 350, 356.) These include charging documents, the information, minute orders, the preliminary hearing transcript (in the absence of a trial), the trial transcript, a reporter's transcript, change of plea form, the court records of the defendant's admission or plea, and the appellate record, including the appellate opinion, from the prior conviction. (People v. Woodell (1998) 17 Cal.4th 448, 456; People v. Reed (1996) 13 Cal.4th 217, 223-224; People v. Bartow (1996) 46 Cal.App.4th 1573, 1578-1580; People v. Abarca (1991) 233 Cal.App.3d 1347, 1350; People v. Harrell (1989) 207 Cal.App.3d 1439, 1443-1444.) The record of conviction does not include police reports. (Draeger v. Reed (1999) 69 Cal.App.4th 1511, 1521.) It also does not include a defendant's postplea statements recounted in a postconviction probation report. (People v. Trujillo (2006) 40 Cal.4th 165, 178-179.) To the extent portions of a probation officer's report might properly be considered part of the record of conviction, multiple hearsay and "[n]arration of 'reported' events" in such a report are inadmissible as part of the record of conviction. (People v. Reed, supra, 13 Cal.4th at p. 230.)
Defendant analogizes proceedings under section 1170.18 to those under section 1170.126, and concludes as a result the trial court here was precluded from determining eligibility based on the probation reports. He also says the trial court, sitting as trier of fact, could not lawfully base its findings on facts that were not actually received in evidence. (See Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108-109.)
We perceive a significant difference between an eligibility determination that has the potential to lead to the resentencing of a third-strike offender currently serving his or her indeterminate prison term, and one that at most would lead to the reclassification of a low-level felony — the sentence for which has already been completed — to a misdemeanor. (See People v. Buford (2016) 4 Cal.App.5th 886, 908-909, review granted Jan. 11, 2017, S238790; cf. People v. Osuna (2014) 225 Cal.App.4th 1020, 1035-1036.) Moreover, as explained in People v. Perkins, supra, 244 Cal.App.4th at page 140, footnote 5, "[E]ligibility for resentencing under [Proposition 36] turns on the nature of the petitioner's convictions — whether an offender is serving a sentence on a conviction for nonserious, nonviolent offenses and whether he or she has prior disqualifying convictions for certain other defined offenses. [Citation.] By contrast, under Proposition 47, eligibility often turns on the simple factual question of the value of the stolen property."
The value of the property stolen (and, as in the present case, whether the commercial establishment was entered during regular business hours) often will not have been important at the time of conviction; hence, the record of conviction may not contain sufficient evidence to make the required determination. As a result, and in light of the differences between Proposition 36 and Proposition 47, cases dealing with eligibility determinations under the latter have held that trial courts are not limited to consideration of the record of conviction. (People v. Johnson, supra, 1 Cal.App.5th at pp. 966-968; People v. Salmorin, supra, 1 Cal.App.5th at pp. 743-744; People v. Hall, supra, 247 Cal.App.4th at p. 1263; People v. Perkins, supra, 244 Cal.App.4th at p. 140, fn. 5.) Instead, evidence to support a finding necessary for an eligibility determination under section 1170.18 "may come from within or outside the record of conviction, or from undisputed facts acknowledged by the parties." (People v. Hall, supra, 247 Cal.App.4th at p. 1263, italics added.)
In the present case, no objection was raised to the trial court's consideration of the probation reports, and the parties themselves relied on the information contained therein. Defense counsel — who, as we have noted, had ample time to research the offenses and consult with defendant, who in turn would be expected to know when the entries occurred (see People v. Woodell, supra, 17 Cal.4th at p. 457) — even agreed defendant was not eligible to have his offenses in case No. 3843 and case No. 4051 reclassified as misdemeanors, because the burgled businesses were both closed at the time of entry. Under the circumstances, the trial court did not err by considering the probation reports. (See People v. Salmorin, supra, 1 Cal.App.5th at p. 744.) That those reports were not formally admitted in evidence does not render the court's ruling incorrect. (See People v. Perkins, supra, 244 Cal.App.4th at p. 139.)
DISPOSITION
The orders denying defendant's petitions are affirmed.