Filed 10/15/15 P. v. Arvizu CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067503
Plaintiff and Respondent,
v. (Super. Ct. No. JCF28330)
DONALD EDWARD ARVIZU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr.,
Judge. Reversed and remanded with directions to resentence.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and
Respondent. In 2012, Donald Edward Arvizu pleaded guilty to one felony count of receiving
stolen property. (Pen. Code,1 § 496, subd. (a).) The superior court sentenced Arvizu to
365 days in county jail and three years formal probation.
In January 2015, Arvizu unsuccessfully petitioned to have his felony conviction
converted to a misdemeanor under Proposition 47. In his petition, Arvizu argued his
violation of section 496 should be characterized as a misdemeanor because the value of
the stolen property was less than $950. The trial court, however, found Arvizu was not
entitled to relief because the value of the property was $2,000.
On appeal Arvizu argues he is eligible for resentencing because the record of
conviction does not show the value of the stolen property exceeded $950 and the trial
court abused its discretion by admitting evidence that showed otherwise. Because there
was not a sufficient evidentiary foundation to support the trial court's finding that the
property was worth $2,000, we reverse the court's order denying Arvizu's petition and
remand with directions to resentence.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2012, Calexico police officer Steven Garcia saw Arvizu exit a church
parking lot with a purse in his hand. When Garcia approached Arvizu, Arvizu attempted
to hide the purse under a parked car. Garcia arrested Arvizu and retrieved the purse,
which contained pieces of broken glass. Another officer, Officer Navarro, located a car
1 All further statutory references are to the Penal Code unless otherwise specified. 2 in the parking lot with a broken window. The officers could not locate the owner of the
car and left the scene.
When the driver of the car, Adrianna Lopez, returned she noticed the car window
was broken and the purse she left inside was missing. Lopez contacted police and
reported that her car had been broken into and her purse stolen. Later, Officer Garcia
contacted Lopez, who told him her purse contained $160, several credit cards and her
passport. Lopez also told Garcia the purse and its contents were worth $2,000.
Arvizu was originally charged by felony complaint with burglary of a motor
vehicle (§ 459, count 1) and receiving stolen property (§ 496, subd. (a); count 2). He
waived his right to a jury trial and entered a guilty plea to receiving stolen property
(§ 496, subd. (a)). The change of plea form indicated the parties stipulated to the factual
basis for the plea, and at the time Arvizu entered his plea, the trial court stated: "There is
a factual legal basis for the plea." The court, however, did not provide a description of
the property stolen or assign a value.
After Arvizu entered the plea, a probation officer contacted Lopez to determine
the value of the purse in advance of the sentencing hearing. Lopez told the probation
officer she had to dispose of the purse because of damage caused by the broken glass.
Lopez also told the officer the purse was worth $50 and that was the total amount she was
requesting as restitution.
At the sentencing hearing, the court sentenced Arvizu to 365 days in county jail
and three years probation. The court ordered Arvizu to pay $50 in restitution to Lopez, in
addition to $200 for the broken car window.
3 In January 2015, Arvizu filed a petition for resentencing under Proposition 47 to
convert his conviction to a misdemeanor. Arvizu argued he was eligible for resentencing
because the value of the property he stole was less than $950. At the resentencing
hearing, Arvizu argued that the specified detailed losses as outlined by Lopez to the
probation officer were $410. The trial court, however, relied on the $2,000 figure
contained in the probation report and denied Arvizu's petition.
DISCUSSION
Arvizu asserts the trial court abused its discretion by relying on inadmissible
hearsay contained in a probation officer's report to deny Arvizu's petition. The Attorney
General contends Arvizu's hearsay objection is forfeited because he failed to raise the
issue in the trial court. Further, even if the probation report constitutes hearsay, the trial
court did not err by considering the report because evidentiary boundaries are less
rigorous at sentencing hearings.
I
Proposition 47 amended various provisions of the Penal and Health and Safety
Codes to reduce specified drug and theft offenses, including section 496, to
misdemeanors unless the crime is committed by an ineligible defendant. (People v.
Lynall (2015) 233 Cal.App.4th 1102, 1108.) As amended by Proposition 47, section 496
mandates that the offense of receiving stolen property be characterized as a misdemeanor
where the value of the property does not exceed $950. (See §§ 496, 1170.18, subd. (a).)
Proposition 47 also added section 1170.18, which allows "[a] person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
4 would have been guilty of a misdemeanor under [Proposition 47 had it] been in effect at
the time of the offense" to "petition for a recall of sentence" and request resentencing.
(§ 1170.18, subd. (a).)
We review the trial court's ruling to admit hearsay evidence under the deferential
abuse of discretion standard (People v. Alvarez (1996) 14 Cal.4th 155, 201), but review
the trial court's underlying factual determination for substantial evidence. (People v.
Kraft (2000) 23 Cal.4th 978, 1036.)
II
The Attorney General contends Arvizu forfeited his right to complain about the
trial court's consideration of the probation report because Arvizu failed to object at the
time the evidence in question was presented.
To encourage prompt detection and correction of error, and to reduce the number
of unnecessary appellate claims, reviewing courts require parties to raise certain issues at
the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits
or waives the claim. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) The purpose of
the waiver rule is to ensure the error is brought to the attention of the trial court, both
parties are heard on the issue, and the trial court has an opportunity to correct the error
before issuing a final judgment. (People v. Scott (1994) 9 Cal.4th 331, 353.)
In this case, at the resentencing hearing, defense counsel argued that the value of
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Filed 10/15/15 P. v. Arvizu CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067503
Plaintiff and Respondent,
v. (Super. Ct. No. JCF28330)
DONALD EDWARD ARVIZU,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr.,
Judge. Reversed and remanded with directions to resentence.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and
Respondent. In 2012, Donald Edward Arvizu pleaded guilty to one felony count of receiving
stolen property. (Pen. Code,1 § 496, subd. (a).) The superior court sentenced Arvizu to
365 days in county jail and three years formal probation.
In January 2015, Arvizu unsuccessfully petitioned to have his felony conviction
converted to a misdemeanor under Proposition 47. In his petition, Arvizu argued his
violation of section 496 should be characterized as a misdemeanor because the value of
the stolen property was less than $950. The trial court, however, found Arvizu was not
entitled to relief because the value of the property was $2,000.
On appeal Arvizu argues he is eligible for resentencing because the record of
conviction does not show the value of the stolen property exceeded $950 and the trial
court abused its discretion by admitting evidence that showed otherwise. Because there
was not a sufficient evidentiary foundation to support the trial court's finding that the
property was worth $2,000, we reverse the court's order denying Arvizu's petition and
remand with directions to resentence.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2012, Calexico police officer Steven Garcia saw Arvizu exit a church
parking lot with a purse in his hand. When Garcia approached Arvizu, Arvizu attempted
to hide the purse under a parked car. Garcia arrested Arvizu and retrieved the purse,
which contained pieces of broken glass. Another officer, Officer Navarro, located a car
1 All further statutory references are to the Penal Code unless otherwise specified. 2 in the parking lot with a broken window. The officers could not locate the owner of the
car and left the scene.
When the driver of the car, Adrianna Lopez, returned she noticed the car window
was broken and the purse she left inside was missing. Lopez contacted police and
reported that her car had been broken into and her purse stolen. Later, Officer Garcia
contacted Lopez, who told him her purse contained $160, several credit cards and her
passport. Lopez also told Garcia the purse and its contents were worth $2,000.
Arvizu was originally charged by felony complaint with burglary of a motor
vehicle (§ 459, count 1) and receiving stolen property (§ 496, subd. (a); count 2). He
waived his right to a jury trial and entered a guilty plea to receiving stolen property
(§ 496, subd. (a)). The change of plea form indicated the parties stipulated to the factual
basis for the plea, and at the time Arvizu entered his plea, the trial court stated: "There is
a factual legal basis for the plea." The court, however, did not provide a description of
the property stolen or assign a value.
After Arvizu entered the plea, a probation officer contacted Lopez to determine
the value of the purse in advance of the sentencing hearing. Lopez told the probation
officer she had to dispose of the purse because of damage caused by the broken glass.
Lopez also told the officer the purse was worth $50 and that was the total amount she was
requesting as restitution.
At the sentencing hearing, the court sentenced Arvizu to 365 days in county jail
and three years probation. The court ordered Arvizu to pay $50 in restitution to Lopez, in
addition to $200 for the broken car window.
3 In January 2015, Arvizu filed a petition for resentencing under Proposition 47 to
convert his conviction to a misdemeanor. Arvizu argued he was eligible for resentencing
because the value of the property he stole was less than $950. At the resentencing
hearing, Arvizu argued that the specified detailed losses as outlined by Lopez to the
probation officer were $410. The trial court, however, relied on the $2,000 figure
contained in the probation report and denied Arvizu's petition.
DISCUSSION
Arvizu asserts the trial court abused its discretion by relying on inadmissible
hearsay contained in a probation officer's report to deny Arvizu's petition. The Attorney
General contends Arvizu's hearsay objection is forfeited because he failed to raise the
issue in the trial court. Further, even if the probation report constitutes hearsay, the trial
court did not err by considering the report because evidentiary boundaries are less
rigorous at sentencing hearings.
I
Proposition 47 amended various provisions of the Penal and Health and Safety
Codes to reduce specified drug and theft offenses, including section 496, to
misdemeanors unless the crime is committed by an ineligible defendant. (People v.
Lynall (2015) 233 Cal.App.4th 1102, 1108.) As amended by Proposition 47, section 496
mandates that the offense of receiving stolen property be characterized as a misdemeanor
where the value of the property does not exceed $950. (See §§ 496, 1170.18, subd. (a).)
Proposition 47 also added section 1170.18, which allows "[a] person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
4 would have been guilty of a misdemeanor under [Proposition 47 had it] been in effect at
the time of the offense" to "petition for a recall of sentence" and request resentencing.
(§ 1170.18, subd. (a).)
We review the trial court's ruling to admit hearsay evidence under the deferential
abuse of discretion standard (People v. Alvarez (1996) 14 Cal.4th 155, 201), but review
the trial court's underlying factual determination for substantial evidence. (People v.
Kraft (2000) 23 Cal.4th 978, 1036.)
II
The Attorney General contends Arvizu forfeited his right to complain about the
trial court's consideration of the probation report because Arvizu failed to object at the
time the evidence in question was presented.
To encourage prompt detection and correction of error, and to reduce the number
of unnecessary appellate claims, reviewing courts require parties to raise certain issues at
the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits
or waives the claim. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) The purpose of
the waiver rule is to ensure the error is brought to the attention of the trial court, both
parties are heard on the issue, and the trial court has an opportunity to correct the error
before issuing a final judgment. (People v. Scott (1994) 9 Cal.4th 331, 353.)
In this case, at the resentencing hearing, defense counsel argued that the value of
the property Arvizu unlawfully received was worth significantly less than $950. By
arguing that the value of the property was well less than $950, Arvizu's counsel was in
effect objecting to the $2,000 figure contained in the probation report. Defense counsel's
5 failure to say the word objection does not preclude Arvizu from raising the issue on
appeal. Defense counsel's argument as to the true value of the property taken was an
attack on the reliability of the $2,000 amount listed in the probation report. In other
words, counsel raised the issue of the value of the purse with the superior court, allowed
the People to address the issue, and provided the superior court with the opportunity to
resolve the issue. Arvizu's contention that there is no foundation for the $2,000 figure
contained in the probation report has remained constant and Arvizu is not precluded from
raising the issue on appeal.
III
Arvizu argues the trial court abused its discretion by relying on inadmissible
hearsay contained in a probation officer's report to deny his petition. The Attorney
General concedes the report contained hearsay, but asserts the trial court was permitted to
consider it because evidentiary boundaries are less rigorous at sentencing hearings. In
response to the Attorney General's argument, Arvizu contends that, even if the trial court
could properly consider hearsay evidence in its determination, it could not rely on
Lopez's statement that the stolen property was worth $2,000 because there was no
evidentiary foundation for this figure.
When deciding whether evidentiary error is reversible error, the reviewing court
must determine whether the trial court's exercise of discretion in admitting or excluding
the evidence was so arbitrary or absurd as to create a miscarriage of justice. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Further, the trial court must exercise its
discretion within the parameters of the evidentiary rules requiring a foundation be
6 established for the evidence offered, and in consideration of all the relevant
circumstances. (Ibid.) Even if such an abuse of discretion is found, reversal is not
warranted unless it is reasonably probable that a more favorable result would have
occurred had the evidence been excluded. (Id. at p. 1125, citing People v. Watson (1956)
46 Cal.2d 818, 836.)
As the Attorney General asserts, sentencing judges have virtually unlimited
discretion as to the kind of information they can consider and the source from which it
comes. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275; see People v. Roberts (2011)
195 Cal.App.4th 1106, 1128 [sentencing judges may consider responsible unsworn or
out-of-court statements concerning the convicted person's life and characteristics and may
receive evidence that might otherwise not be admissible at trial].) "Fundamental fairness,
however, requires that there be a substantial basis for believing the information is
reliable." (People v. Lamb (1999) 76 Cal.App.4th 664, 683.)
"Although not all the procedural safeguards required at trial also apply in a
sentencing or probation hearing, such a hearing violates due process if it is fundamentally
unfair." (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) "Reliability of the
information considered by the court is the key issue in determining fundamental fairness"
in this context. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) "A court's reliance,
in its sentencing and probation decisions, on factually erroneous sentencing reports or
other incorrect or unreliable information can constitute a denial of due process." (Eckley,
supra, at p. 1080.)
7 In Eckley, supra, 123 Cal.App.4th 1072, the defendant was charged with child
abuse based upon her misguided treatment of her children for food poisoning. The
evidence at trial established that the children, who were taken to the emergency room,
experienced seizures and low blood sodium, but recovered the next day. (Id. at pp. 1074-
1077.) The probation report stated that the children were in critical condition and the
daughter's condition was " 'life threatening' " and contained other statements not
supported by the evidence at trial. (Id. at pp. 1078-1080.) The court determined that
reliance on the probation report was improper because it contained inaccurate
information on which the trial court relied in sentencing, and then remanded the matter
for resentencing. (Id. at pp. 1080-1081.)
In People v. Peterson (1973) 9 Cal.3d 717, the testimony of a police officer at the
probation hearing regarding hearsay comments made by an informant was held
sufficiently reliable for consideration by the trial court. (Id. at pp. 727-728.) Similarly,
in People v. Arbuckle, supra, 22 Cal.3d 749, a Department of Corrections report was
found to have inherent reliability because it was made pursuant to a court order by expert,
objective government personnel in pursuit of their official duties. (Id. at pp. 754-755.)
The court in Arbuckle was persuaded by the fact that the report did not stand in isolation;
its recommendation was supported by the probation officer's report and by the statutory
presumption against probation for assault with intent to commit murder. (Id. at p. 755;
§ 1203, subd. (d)).
Unlike the reports at issue in Peterson, supra, 9 Cal.3d 717, and Arbuckle, in this
case, the probation report is not corroborated by live testimony of the hearsay recipient,
8 or by any supplemental report or statutory presumption against granting Arvizu's petition.
The sole piece of evidence relied upon by the trial court in denying Arvizu's petition is
the uncorroborated $2,000 figure contained in the probation report. Unlike the defendant
in Arbuckle, Arvizu challenged the factual statements contained in the report by
presenting his own evidence that the value of the stolen property was $410, as suggested
by the Arbuckle court. (Arbuckle, supra, 22 Cal.3d at p. 753.) Without considering the
report, no other factors supported the trial court's finding that the value of the property
was $2,000. Like in Eckley, supra, 123 Cal.App.4th 1072, the trial court's reliance on the
statements in the report was improper because they were not supported by the evidence.
Thus, the trial court's consideration of hearsay statements is not an abuse of
discretion in and of itself. In this case however, the court's reliance on Lopez's unverified
assertion in the probation officer's report that the value of the stolen property was $2,000
was error because there was no basis for the trial court to believe this information was
reliable or accurate.
Specifically, in a section of the probation report titled "The Offense," the
probation officer includes a statement, attributed to Lopez, that Lopez valued the contents
of her purse at $2,000. The report, however, did not identify the source of this
information and the probation officer noted only that the information about the offense
was "provided by the District Attorney's file." The probation report does not indicate
whether the information was contained in reports written by Garcia and Navarro
reporting each officer's role in the incident, or if the information was contained in a report
written by another officer summarizing information received from Garcia, Navarro or
9 others. It is also possible the information in the District Attorney file was contained in a
factual summary written by a deputy prosecutor in preparation for trial.
At the resentencing hearing, counsel for Arvizu argued that the specified detailed
losses as outlined by Lopez to the probation officer were $410, and therefore there was
no foundation for the $2,000 figure. Arvizu's counsel urged the court to accept the $410
figure over the $2,000 initial estimate Lopez made when reporting the crime. The $410
figure was deduced by adding up the cost of replacing each piece of stolen property.
Counsel argued that there was no basis for the $2,000 figure, and it was likely just a
number that Lopez estimated when initially reporting her purse stolen.
Further, the listed value of $2,000 was inconsistent with the value of the property
Lopez reported taken. The felony complaint which Arvizu pleaded guilty to lists the
stolen property as a purse, $160 in cash, credit cards and a passport. When the probation
officer spoke with Lopez before the sentencing hearing she stated the "purse was valued
at $50," which was what she requested in restitution. The probation officer did not
question Lopez about the $2,000 figure or otherwise inquire into its origin, nor did the
prosecutor verify the $2,000 figure in advance of the resentencing hearing. Therefore,
the only reliable evidence before the sentencing court did not support its finding that
Lopez's property was worth $2,000. As a result, it is reasonably probable Arvizu's
petition would have been granted absent the court's error.
As noted above, a trial court denies a defendant due process by relying on false or
unreliable information at sentencing. (Eckley, supra, 123 Cal.App.4th at p. 1080.) When
an error affects a defendant's rights under the United States Constitution, reversal is
10 required unless the prosecution can show "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." (Chapman v. California (1967)
386 U.S. 18, 24; see People v. Price (1991) 1 Cal.4th 324, 492 [sentence based on
improper factor will be set aside only if it is reasonably probable that the trial court would
have chosen a lesser sentence had it not relied on that factor].) Here, there was not a
sufficient evidentiary foundation to support the trial court's finding that the property was
worth $2,000. The prosecution has no additional evidence to support the $2,000 figure in
the probation report, and therefore would be unable to prove that the inaccuracies in the
probation report did not contribute to the verdict.
DISPOSITION
The order is reversed and remanded for resentencing consistent with this opinion.
In conjunction with Arvizu's new sentence, the superior court shall prepare and file a new
abstract of judgment.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.