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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           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.


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