Filed 6/29/16 P. v. Pierson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064916

v.                                                                      (Super.Ct.No. INF027313)

GREGORY THOMAS PIERSON,                                                 OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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       Defendant and appellant Gregory Thomas Pierson appeals from an order denying

his motion for reconsideration of his petition for recall of his indeterminate life term and

for resentencing under Penal Code section 1170.18.1 Among other claims, defendant

argues that the trial court erred in denying his petition because there is no evidence to

show the value of the stolen property exceeded the statutory maximum of $950 and that

the error constituted a denial of his due process rights. We find no error and affirm the

judgment.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND2

       On June 9, 1997, someone broke into Don Frank’s parents’ detached eight-car

garage and stole his gold coins, a flashlight, a bag of semi-precious stones, and 250 sheets

of limited edition Marilyn Monroe collector stamps. Frank paid $1,600 for the stamps

and valued them on that date at $4,800. Frank called the owner of Steve’s Coin and

Jewelry Shop, Steve Ahajanian, and alerted him to be on the lookout for anyone trying to

sell the stolen items.

       The following day, defendant attempted to sell the limited edition stamps to

Ahajanian, and police were notified. When the police responded to the scene, defendant

denied that he owned the stamps and attempted to flee. After he was apprehended,

defendant blurted that he found the stamps in a trash can. While in the backseat of the

       1   All future statutory references are to the Penal Code unless otherwise stated.

       2   The factual background is taken from the probation officer’s report.


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police car, defendant removed a baggie of methamphetamine from his pocket and

attempted to dispose of it behind the seat.

       On September 8, 1998, defendant was sentenced to two consecutive 25-year-to-

life terms for receiving stolen property (§ 496; count 1), and possession of a controlled

substance, to wit, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2).

The trial court also sentenced defendant to an additional one year pursuant to

section 667.5, subdivision (b). On March 17, 2000, the trial court resentenced defendant

and imposed the sentence on count 2 concurrently, rendering his total sentence 26 years

to life. (See People v. Pierson (Dec. 12, 2013, E058798) [nonpub. opn.] (Pierson I).)

       On November 6, 2012, the electorate passed Proposition 36, also known as the

Three Strikes Reform Act of 2012. Among other things, this ballot measure enacted

section 1170.126, which permits persons currently serving an indeterminate life term

under the “Three Strikes” law to file a petition in the sentencing court, seeking to be

resentenced to a determinate term as a second striker. (§ 1170.126, subd. (f).) If the

trial court determines, in its discretion, that the defendant meets the criteria of

section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126,

subds. (f), (g).)

       On December 11, 2012, defendant filed a motion to modify his sentence under

section 1170.126. The People filed an opposition to defendant’s section 1170.126 motion

to modify on March 21, 2013. On May 10, 2013, the court denied the section 1170.126




                                               3
motion based on defendant’s criminal record, finding him “a serious and significant

danger to society.” (See Pierson I, supra, E058798.)

       On May 20, 2013, defendant appealed from the denial of his section 1170.126

motion. On December 12, 2013, in an unpublished opinion, this court affirmed the trial

court’s order denying defendant’s section 1170.126 motion. (See Pierson I, supra,

E058798.)

       On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (Proposition 47). It went into effect the next day. (Cal.

Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as

misdemeanors certain drug- and theft-related offenses that previously were felonies or

“wobblers,” unless they were committed by certain ineligible defendants. (§ 1170.18,

subd. (a).)

       Proposition 47 also created section 1170.18, a new sentencing provision. Under

section 1170.18, a person currently serving a felony sentence or a person who has

completed his or her sentence, whether by trial or plea, for an offense that is now a

misdemeanor under Proposition 47, may petition before the trial court that entered the

judgment of conviction in his or her case to have the felony conviction designated as

misdemeanors. (§ 1170.18, subds. (a) & (f).) A person who satisfies the criteria in

section 1170.18 shall have his or her sentence recalled and be “resentenced to a

misdemeanor . . . unless the court, in its discretion, determines that resentencing the




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petitioner would pose an unreasonable risk of danger to public safety.” (§ 1170.18,

subd. (b).)

          On November 26, 2014, defendant filed a petition for resentencing and reduction

of his offenses to misdemeanors pursuant to section 1170.18. The People filed a

response, opposing the petition as to the receiving stolen property conviction because the

loss exceeded $950. The People specifically noted, “not eligible under count 1 because

loss amount was $5,000.00.”3 The People requested a hearing on count 2, the drug

offense, to determine whether defendant posed an unreasonable risk of danger to public

safety.

          On January 30, 2015, the trial court denied defendant’s Proposition 47 petition,

finding defendant ineligible on count 1 for receiving stolen property because the value of

loss exceeded $950. The court also denied defendant’s petition on count 2 for possession

of methamphetamine because defendant posed an unreasonable risk of danger to public

safety. The court noted that defendant’s Proposition 36 petition had already been denied

and affirmed on appeal due to a finding that defendant posed an unreasonable risk of

danger to public safety.




          At the time of defendant’s original sentencing hearing on September 8, 1998,
          3
the parties argued the value of the Marilyn Monroe stamps ranged between $1,200 (face
value) and $20,000 (collector’s value). In addition, the court ordered defendant to pay
restitution pursuant to section 1202.4 in the amount of $5,000. The value of the stamps
actually released back to the victim after defendant was arrested was $1,369.


                                               5
       On February 6, 2015, defendant filed a request for reconsideration of the denial of

his Proposition 47 petition. The court denied defendant’s request as to his conviction for

receiving stolen property, noting defendant was ineligible because the value of loss was

over $5,000. The court, however, set the matter for a hearing on defendant’s drug

possession conviction on the issue of dangerousness.

       The hearing on defendant’s request was held on November 13, 2015. Following

argument, the trial court again denied defendant’s request as to count 1 for receiving

stolen property, finding defendant was ineligible because the value of loss exceeded

$950. As to count 2 for possession of methamphetamine, the court found defendant did

not pose an unreasonable risk of danger to public safety and granted defendant’s

Proposition 47 petition on count 2. Defendant was thereafter resentenced on count 2 to

364 days, credit for time served and 25 years to life on count 1 for receiving stolen

property.

       On November 24, 2015, defendant filed a timely notice of appeal.

                                             II

                                      DISCUSSION

       After defendant appealed, upon his request, this court appointed counsel to

represent him on appeal. Counsel has filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders),

setting forth a statement of the case, a summary of the facts and potential arguable issues,

and requesting this court to conduct an independent review of the record.



                                             6
       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. In his supplemental brief, defendant asserts that (1) the failure to correctly

establish the exact value of the stolen property was in error; (2) a sentence based upon

“[m]isinformation of a Constitutional [m]agnitude” violates the due process clause;

(3) the matter should be remanded for resentencing to allow the court to strike his prior

strike convictions pursuant to section 1385; and (4) his appellate counsel rendered

ineffective assistance of counsel by failing to raise arguable issues.

       As previously noted, Proposition 47 makes certain drug- and theft-related offenses

misdemeanors, unless the offenses were committed by certain ineligible defendants.

These offenses had previously been designated as either felonies or wobblers (crimes that

can be punished as either felonies or misdemeanors). “Proposition 47: (1) added Chapter

33 to the Government Code (section 7599 et seq.), (2) added sections 459.5, 490.2, and

1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666

and Health and Safety Code sections 11350, 11357, and 11377.” (People v. Rivera

(2015) 233 Cal.App.4th 1085, 1091.)

       Under section 1170.18, subdivision (a), petty theft (§ 490.2) and receiving stolen

property (§ 496, subd. (a)) are offenses that qualify for resentencing if the value of the

property is less than $950. A petitioner bears the burden of proof to establish that he or

she is eligible for resentencing by showing the value of property involved in an offense

did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)

Section 1170.18 does not require an evidentiary hearing to determine eligibility that is



                                              7
unequivocally established in the record. The trial court may determine eligibility based

on the record. (People v. Brimmer (2014) 230 Cal.App.4th 782, 805.)

       Here, defendant has not established the value of the stolen property was less than

$950 to be eligible for resentencing on his conviction for receiving stolen property. On

the contrary, the record of conviction shows the value of the stolen property exceeded

$950. As such, defendant is ineligible for resentencing on his conviction for receiving

stolen property under Proposition 47. We reject defendant’s claim that the sentence was

based on misinformation or that his due process rights were violated.

       In connection with this issue, defendant appears to be arguing that his prior strikes

should be dismissed in the interest of justice under section 1385. This argument,

however, is not before us. This argument should have been pursued in 1998, when

defendant was sentenced for the underlying offenses. The only issue in this appeal is

whether the trial court erred in denying defendant’s motion to reconsider the denial of

defendant’s petition under section 1170.18.

       Furthermore, defendant argues that his appellate counsel rendered ineffective

assistance of counsel by filing his brief under Anders, supra, 386 U.S. 738 and Wende,

supra, 25 Cal.3d 436. The contention is without merit.

       An indigent defendant has the right to effective assistance of counsel on appeal.

(In re Spears (1984) 157 Cal.App.3d 1203, 1210.) A claim of ineffective assistance of

appellate counsel requires a showing of both deficient performance and prejudice. (In re

Reno (2012) 55 Cal.4th 428, 488.) Appellate counsel has the duty to prepare a legal brief



                                              8
containing citations to the appellate record and appropriate authority. Counsel must set

forth all arguable issues and cannot argue the case against his or her client. (In re Spears,

at p. 1210.) “[F]or an issue to be an arguable issue on appeal it must be reasonably

arguable that there is prejudicial error justifying reversal or modification of judgment.”

(Id. at p. 1211.) “[I]t is not the duty of appellate counsel to ‘contrive arguable issues.’ ”

(Ibid.) Failure of “appellate counsel to raise crucial assignments of error, which arguably

might have resulted in a reversal” deprives an appellant of effective assistance of

appellate counsel. (In re Smith (1970) 3 Cal.3d 192, 202-203.) However, the fact that

appellate counsel followed the procedure set forth in Wende and Anders is insufficient, by

itself, to show appellate counsel has been ineffective. Here, appellate counsel

appropriately found no arguable issues.

       We have undertaken an examination of the entire record pursuant to the mandate

of People v. Kelly (2006) 40 Cal.4th 106 and Wende, supra, 25 Cal.3d 436, and we find

no arguable error that would result in a disposition more favorable to defendant.

Accordingly, defendant has also failed to meet his burden of proof on the issue of

ineffective assistance of appellate counsel. Appellate counsel has complied fully with

counsel’s responsibilities and the filing of a Wende brief was not unprofessional. (Smith

v. Robbins (2000) 528 U.S. 259, 278-284; Wende, supra, at p. 443.)




                                               9
                                           III

                                     DISPOSITION

       The order denying defendant’s Proposition 47 petition for recall and resentencing

is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              RAMIREZ
                                                                                     P. J.
We concur:



HOLLENHORST
                          J.



SLOUGH
                          J.




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