Filed 5/13/16 P. v. Bates CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063593
v. (Super.Ct.Nos. RIF1105274 & RIF1102121) VICTOR WAYNE BATES, JR., OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina, Annie Fraser and Christen Somerville, Deputy Attorneys
General, for Plaintiff and Respondent.
1 The trial court denied the Proposition 47 petition for resentencing of defendant
and appellant Victor Wayne Bates, Jr. (Pen. Code, § 1170.18.)1 Defendant raises two
issues on appeal. First, defendant contends the record of conviction does not support
the finding that the value of the property he stole exceeded $950. Second, defendant
contends the trial court erred by not providing him notice that he could request a hearing
concerning his petition. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In an amended information filed in Riverside County on January 8, 2013,
defendant was charged with (1) residential burglary (§ 459); (2) being a felon in
possession of a firearm (§ 12021, subd. (a)(1)); (3) one felony count of receiving stolen
property (§ 496, subd. (a))—(a) a Macbook; (b) a nine-millimeter handgun; (c) a
camera; and (d) a stamp collection—the items were alleged to have been taken from
four separate victims; and (4) failing to appear (§ 1320, subd. (b)). It was further
alleged that defendant suffered (1) three prison priors (§ 667.5, subd. (b)); (2) a prior
serious felony conviction (§ 667, subd. (a)); and a prior strike conviction (§§ 667, subds.
(c)&(e)(1), 1170.12, subd. (c)(1)).
On January 8, 2013, defendant pled guilty to the offenses of residential burglary
(§ 459) and receiving stolen property (§ 496, subd. (a)). Defendant also admitted
suffering one prison prior (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667,
subds. (c)&(e)(1), 1170.12, subd. (c)(1)).
1 All subsequent statutory references will be the Penal Code, unless otherwise indicated.
2 The trial court sentenced defendant to prison for a term of 13 years. The failure
to appear and felon in possession of a firearm charges were dismissed in the interest of
justice. (§ 1385.) The court ordered defendant to pay victim restitution in an amount to
determined by the Probation Department. (§ 1202.4, subd. (f).) A probation report was
not included in the record on appeal.
On December 15, 2014, defendant petitioned the trial court to reduce his felony
receiving stolen property conviction (§ 496, subd. (a)) to a misdemeanor. (§ 1170.18.)
On the petition form, defendant’s attorney marked the box reflecting defendant had
been convicted of receiving stolen property and that defendant believed the value of the
stolen property did not exceed $950. No supporting papers were attached to the
petition.
The prosecutor responded to the petition, arguing that the value of the stolen
property exceeded $950. The prosecutor wrote, “Loss over $950 (Macbook, 9mm
handgun, camera, & stamp collection.)” The trial court denied defendant’s petition
without a hearing. The court’s minute order reflects, “496 (a) PC—loss was over
$950.”
DISCUSSION
A. PROPERTY’S VALUE
Defendant contends the trial court erred by concluding the value of the stolen
property exceeded $950, because there is nothing in the record of conviction supporting
such a finding.
3 No evidence was submitted at the trial court, so we will apply the de novo
standard of review. (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) In
June 2011, when defendant committed his crime, the offense of receiving stolen
property could be charged as a misdemeanor if (1) such a classification served the
interests of justice, and (2) the value of the stolen property did not exceed $950.
(Former § 496, subd. (a).) Now, after the passage of Proposition 47, the offense of
receiving stolen property is a misdemeanor if “the value of the property does not exceed
$950.” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651.)
In requesting a felony conviction be transmuted into a misdemeanor pursuant to
Proposition 47, a defendant bears the burden of making an initial showing concerning
the value of the stolen property. In other words, a defendant bears the burden of
initially showing he is entitled to a reduction in sentence. Therefore a “proper petition”
should contain proof, such as the defendant’s testimony (or other evidence) regarding
the nature and value of the items taken. Based upon that initial showing, the trial “court
can take such action as appropriate to grant the petition or permit further factual
determination.” (Sherow, supra, 239 Cal.App.4th at p. 880; see also People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 449-450.)
Defendant’s petition reflects defendant’s attorney’s conclusion that defendant
believed the value of the property was less than $950. Defendant provides no proof
about the value of the stolen items. Thus, defendant failed to meet his burden of
showing the value of the items was less than $950.
4 The trial court may have erred by making the factual finding that the property
was valued at over $950 because evidence was not submitted to support that finding.
Nevertheless, the trial court’s denial of defendant’s petition was correct for a different
reason—defendant failed to meet his burden of demonstrating the property was valued
at $950 or less. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250 [a correct ruling
will be upheld even if the reasons for the ruling were incorrect].) Defendant’s failure to
provide the trial court with any proof regarding the value of the property means he
failed to demonstrate he is eligible for resentencing. Accordingly, we conclude the trial
court did not err by denying defendant’s petition.
B. NOTICE
Defendant contends the trial court erred by not providing him notice that he
could request a hearing concerning his petition. Defendant’s argument is based upon a
due process violation, in that he asserts he was not provided proper notice of his right to
request a hearing. Defendant contends people who have completed serving their prison
sentences can request a hearing (§ 1170.18, subd. (h)), and therefore, people, such as
defendant, who are incarcerated should be given notice that they too can request a
hearing.2
2 Although we have concluded defendant failed to meet his burden, the notice issue has not been rendered moot. Presumably, defendant would argue that he did not meet his burden because he was not given notice about the possibility of a hearing, and at the hearing he would have provided the relevant evidence. Accordingly, the notice issue is pertinent to resolving defendant’s concerns.
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Filed 5/13/16 P. v. Bates CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063593
v. (Super.Ct.Nos. RIF1105274 & RIF1102121) VICTOR WAYNE BATES, JR., OPINION Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, A. Natasha Cortina, Annie Fraser and Christen Somerville, Deputy Attorneys
General, for Plaintiff and Respondent.
1 The trial court denied the Proposition 47 petition for resentencing of defendant
and appellant Victor Wayne Bates, Jr. (Pen. Code, § 1170.18.)1 Defendant raises two
issues on appeal. First, defendant contends the record of conviction does not support
the finding that the value of the property he stole exceeded $950. Second, defendant
contends the trial court erred by not providing him notice that he could request a hearing
concerning his petition. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In an amended information filed in Riverside County on January 8, 2013,
defendant was charged with (1) residential burglary (§ 459); (2) being a felon in
possession of a firearm (§ 12021, subd. (a)(1)); (3) one felony count of receiving stolen
property (§ 496, subd. (a))—(a) a Macbook; (b) a nine-millimeter handgun; (c) a
camera; and (d) a stamp collection—the items were alleged to have been taken from
four separate victims; and (4) failing to appear (§ 1320, subd. (b)). It was further
alleged that defendant suffered (1) three prison priors (§ 667.5, subd. (b)); (2) a prior
serious felony conviction (§ 667, subd. (a)); and a prior strike conviction (§§ 667, subds.
(c)&(e)(1), 1170.12, subd. (c)(1)).
On January 8, 2013, defendant pled guilty to the offenses of residential burglary
(§ 459) and receiving stolen property (§ 496, subd. (a)). Defendant also admitted
suffering one prison prior (§ 667.5, subd. (b)) and one prior strike conviction (§§ 667,
subds. (c)&(e)(1), 1170.12, subd. (c)(1)).
1 All subsequent statutory references will be the Penal Code, unless otherwise indicated.
2 The trial court sentenced defendant to prison for a term of 13 years. The failure
to appear and felon in possession of a firearm charges were dismissed in the interest of
justice. (§ 1385.) The court ordered defendant to pay victim restitution in an amount to
determined by the Probation Department. (§ 1202.4, subd. (f).) A probation report was
not included in the record on appeal.
On December 15, 2014, defendant petitioned the trial court to reduce his felony
receiving stolen property conviction (§ 496, subd. (a)) to a misdemeanor. (§ 1170.18.)
On the petition form, defendant’s attorney marked the box reflecting defendant had
been convicted of receiving stolen property and that defendant believed the value of the
stolen property did not exceed $950. No supporting papers were attached to the
petition.
The prosecutor responded to the petition, arguing that the value of the stolen
property exceeded $950. The prosecutor wrote, “Loss over $950 (Macbook, 9mm
handgun, camera, & stamp collection.)” The trial court denied defendant’s petition
without a hearing. The court’s minute order reflects, “496 (a) PC—loss was over
$950.”
DISCUSSION
A. PROPERTY’S VALUE
Defendant contends the trial court erred by concluding the value of the stolen
property exceeded $950, because there is nothing in the record of conviction supporting
such a finding.
3 No evidence was submitted at the trial court, so we will apply the de novo
standard of review. (People v. Sherow (2015) 239 Cal.App.4th 875, 878 (Sherow).) In
June 2011, when defendant committed his crime, the offense of receiving stolen
property could be charged as a misdemeanor if (1) such a classification served the
interests of justice, and (2) the value of the stolen property did not exceed $950.
(Former § 496, subd. (a).) Now, after the passage of Proposition 47, the offense of
receiving stolen property is a misdemeanor if “the value of the property does not exceed
$950.” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 651.)
In requesting a felony conviction be transmuted into a misdemeanor pursuant to
Proposition 47, a defendant bears the burden of making an initial showing concerning
the value of the stolen property. In other words, a defendant bears the burden of
initially showing he is entitled to a reduction in sentence. Therefore a “proper petition”
should contain proof, such as the defendant’s testimony (or other evidence) regarding
the nature and value of the items taken. Based upon that initial showing, the trial “court
can take such action as appropriate to grant the petition or permit further factual
determination.” (Sherow, supra, 239 Cal.App.4th at p. 880; see also People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 449-450.)
Defendant’s petition reflects defendant’s attorney’s conclusion that defendant
believed the value of the property was less than $950. Defendant provides no proof
about the value of the stolen items. Thus, defendant failed to meet his burden of
showing the value of the items was less than $950.
4 The trial court may have erred by making the factual finding that the property
was valued at over $950 because evidence was not submitted to support that finding.
Nevertheless, the trial court’s denial of defendant’s petition was correct for a different
reason—defendant failed to meet his burden of demonstrating the property was valued
at $950 or less. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249-1250 [a correct ruling
will be upheld even if the reasons for the ruling were incorrect].) Defendant’s failure to
provide the trial court with any proof regarding the value of the property means he
failed to demonstrate he is eligible for resentencing. Accordingly, we conclude the trial
court did not err by denying defendant’s petition.
B. NOTICE
Defendant contends the trial court erred by not providing him notice that he
could request a hearing concerning his petition. Defendant’s argument is based upon a
due process violation, in that he asserts he was not provided proper notice of his right to
request a hearing. Defendant contends people who have completed serving their prison
sentences can request a hearing (§ 1170.18, subd. (h)), and therefore, people, such as
defendant, who are incarcerated should be given notice that they too can request a
hearing.2
2 Although we have concluded defendant failed to meet his burden, the notice issue has not been rendered moot. Presumably, defendant would argue that he did not meet his burden because he was not given notice about the possibility of a hearing, and at the hearing he would have provided the relevant evidence. Accordingly, the notice issue is pertinent to resolving defendant’s concerns. If we were to conclude defendant were entitled to notice of a possible hearing, then he might present the necessary proof [footnote continued on next page]
5 Defendant has raised a legal question, so we apply the de novo standard of
review. (In re Bode (1999) 74 Cal.App.4th 1002, 1004.) “‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory construction.
[Citation.] Thus, “we turn first to the language of the statute, giving the words their
ordinary meaning.” [Citation.] The statutory language must also be construed in the
context of the statute as a whole and the overall statutory scheme [in light of the
electorate’s intent]. [Citation.] When the language is ambiguous, “we refer to other
indicia of the voters’ intent, particularly the analyses and arguments contained in the
official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our primary purpose
is to ascertain and effectuate the intent of the voters who passed the initiative measure.’”
(People v. Briceno (2004) 34 Cal.4th 451, 459.)
Section 1170.18, provides in relevant part, “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), italics added.) Additionally,
“Unless requested by the applicant, no hearing is necessary to grant or deny an
application filed under subdivision (f).” (§ 1170.18, subd. (h), italics added.)
[footnote continued from previous page] at the hearing on remand. (See In re Albert G. (2003) 113 Cal.App.4th 132, 134 [an issue is moot when no effective relief can be granted].)
6 Thus, based upon the foregoing plain language, people who have completed their
sentences are “applicants” who file “applications,” and may request a hearing regarding
their “applications.”
By contrast, section 1170.18, subdivision (a), provides, “A person currently
serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section . . . had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing . . . .”
Section 1170.18, subdivision (b), provides, “Upon receiving a petition under
subdivision (a), the court shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor[,]
unless the court, in its discretion, determines that resentencing the petitioner would pose
an unreasonable risk of danger to public safety.”
Accordingly, the statute provides that people currently serving their sentences are
“petitioners” who file “petitions.” That there is a difference between petitions and
applications is reinforced by section 1170.18, subdivision (j), which uses both terms, i.e,
the terms are not interchangeable, and provides, “Any petition or application under this
section shall be filed . . . .” Subdivision (j) reflects that petitions and applications are
not interchangeable—the statute contemplates both petitions and applications, and there
are differences between them.
7 Because the plain language of the statute uses the term “petition,” and concerns
people who are currently incarcerated, we interpret it by its plain meaning as a reference
to a writ petition, similar to a petition for writ of habeas corpus (§ 1473). The following
writ procedures are relevant to section 1170.18 petitions:
“To satisfy the initial burden of pleading adequate grounds for relief, an
application for habeas corpus must be made by petition, and ‘[i]f the imprisonment is
alleged to be illegal, the petition must also state in what the alleged illegality consists.’
[Citation.] The petition should both (i) state fully and with particularity the facts on
which relief is sought [citations], as well as (ii) include copies of reasonably available
documentary evidence supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations. [Citations.] ‘Conclusory allegations made
without any explanation of the basis for the allegations do not warrant relief, let alone
an evidentiary hearing.’ [Citation.] . . . [A]s stated above, the burden is on the
petitioner to establish grounds for his release.” (People v. Duvall (1995) 9 Cal.4th 464,
474.)
A petitioner under section 1170.18 should attach documentary evidence to
his/her petition. (Sherow, supra, 239 Cal.App.4th at p. 880; People v. Perkins (2016)
244 Cal.App.4th 129, 137.) Similar to a writ of habeas corpus, if the section 1170.18
petitioner fails to establish a prima facie case for relief, then the trial court will
summarily deny the petition. If, however, the trial court finds the factual allegations,
taken as true, establish a prima facie case for relief, then the trial court may schedule a
8 hearing.3 (See People v. Duvall, supra, 9 Cal.4th at p. 475 [describing habeas corpus
procedure].)
In the instant case, as discussed ante, defendant failed to establish a prima facie
case for relief, in that he provided no evidence to meet his burden of proof. As a result,
there was no need for the trial court to provide defendant notice of a hearing because a
hearing did not need to take place—defendant’s petition could be summarily denied due
to the failure of establishing a prima facie case for relief. Accordingly, we conclude the
trial court did not err.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
SLOUGH J.
3In this opinion, we do not address whether the hearing must be requested by defendant and whether the hearing is mandatory or discretionary.