Filed 8/10/16 P. v. Paez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063515

v.                                                                       (Super.Ct.No. RIF1204141)

RICARDO PAEZ,                                                            OPINION

         Defendant and Appellant.



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

Reversed with directions.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Daniel

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.




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                                     INTRODUCTION

       Defendant Ricardo Paez appeals from the trial court’s denial of his petition under

Proposition 47 and Penal Code1 section 1170.18 to reduce his felony conviction of petty

theft with a prior (§§ 484, subd. (a), 666, subd. (a)) to misdemeanor petty theft (§ 490.2).

Defendant contends that his conviction of petty theft with a prior, a crime that is now a

misdemeanor as a matter of law, satisfies his burden to establish that the value of the

property stolen was $950 or less because that fact was conclusively adjudicated by the

conviction itself. We agree, and we reverse.

                      FACTS AND PROCEDURAL BACKGROUND

       On September 28, 2012, defendant entered a plea of guilty to first degree burglary

(§ 459; count 1), receiving stolen property (§ 496, subd. (a); count 2), and petty theft with

a prior (§§ 484, subd. (a), 666, subd. (a); count 3). Defendant admitted two strike priors

(§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), and two serious felony priors

(§ 667, subd. (a)). The amended complaint alleged that the property involved included

computers, cameras, and a cell phone. As the factual basis for the plea, defendant

“agree[d] that [he] did the things that are stated in the charges that [he was] admitting”

and that “on July 23rd, 2012, . . . [he] entered a person’s residence and stole a bunch of

stuff.” The trial court struck one strike prior and sentenced defendant to a total term of

14 years in state prison.



       1   All further statutory references are to the Penal Code unless otherwise indicated.


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       On December 23, 2014, defendant filed a petition in the superior court to reduce

all three convictions to misdemeanors under section 1170.18, subdivision (a). On the

petition form, defendant checked the box next to the statement that he “believes the value

of the check or property does not exceed $950.” The People filed an opposition to the

petition, contending that first degree burglary was not a qualifying felony, and the value

of the property taken was $2,600. The trial court denied the petition in its entirety,

finding “459 PC 1st non-qualifying felony” and “484(a) & 496(a) PC—loss over $950—

Defendant stole 2 laptops—cell phone and camera.”

       Defendant filed a motion for reconsideration as to his petty theft with a prior

conviction (count 3). At the hearing on the motion, the trial court agreed with defense

counsel that a police report, submitted by the People indicating the value of the stolen

property, was inadmissible hearsay. The court then placed the burden of proof on

defendant to establish that the value of the property taken was less than $950. The trial

court denied the motion.2 Defendant filed a timely notice of appeal.

                                       DISCUSSION

       Background Regarding Proposition 47

       On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods

and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug possession and theft-

related crimes from felonies or wobblers to misdemeanors for qualified defendants and

       2 On appeal, defendant does not challenge the trial court’s rulings as to his
convictions for burglary (§ 459) and possession of stolen property (§ 496, subd. (a)).


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added, among other statutory provisions, section 1170.18. Section 1170.18 created a

process through which persons previously convicted of crimes as felonies, which would

be misdemeanors under the new definitions in Proposition 47, may petition for

resentencing. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109;

People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328.)

       Section 1170.18, subdivision (a), states: “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 [Proposition 47] had [Proposition 47] 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 in accordance with

Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,

476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or

added by [Proposition 47].” Proposition 47 renders petty theft with a prior a

misdemeanor (with exceptions not relevant in the present case), when the value of the

property taken does not exceed $950. (§§ 1170.18, subd. (a), 490.2, 666, subd. (a).)

       Analysis

       Defendant contends that his plea of guilty to petty theft with a prior conclusively

adjudicated that the value of the property stolen was $950 or less, and he therefore met

his burden of establishing entitlement to reclassification of his conviction under

Proposition 47 and section 1170.18. (See People v. Perkins (2016) 244 Cal.App.4th 129,

136; People v. Sherow (2015) 239 Cal.App.4th 875, 878.)




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       Defendant relies on People v. Maestas (2006) 143 Cal.App.4th 247, in which the

court held that when the defendant had entered a plea of guilty to second degree burglary

in a prior case, in which the People had dismissed charges of first degree burglary, the

conviction could not be used as a prior strike. The court explained that the plea

agreement meant that the defendant did not admit burglary of a residence, and the People

had abandoned their attempt to prove that it had been residential burglary. (Id. at p. 253.)

The court further explained: “In finding that the structure defendant burgled in 1992 was

a residence, the trial court essentially concluded defendant did not commit second degree

burglary; second degree burglary is any burglary other than of a residence. As a result,

the trial court’s finding was neither fair nor reasonable. [Citation.]” (Id. at p. 252.)

       Here, under the current statutory definitions, defendant’s petty theft with a prior

conviction would have constituted a misdemeanor had it been prosecuted after the

passage of Proposition 47.3 Defendant’s plea to petty theft with a prior constituted an

admission that he took property valued at $950 or less, and the People then abandoned

any effort to prove that the property was worth more than $950. In other words, the

conviction adjudicated the value of the property taken.

       The People attempt to distinguish Maestas on the ground that in that case, the

People attempted to reexamine the facts underlying the prior conviction to increase the


       3  “Theft is divided into two degrees, the first of which is termed grand theft; the
second, petty theft.” (§ 486.) “Grand theft is theft committed in any of the following
cases: [¶] (a) When the money, labor, or real or personal property taken is of a value
exceeding nine hundred fifty dollars ($950) [with exceptions not here relevant].” (§ 487,
subd. (a).) “Theft in other cases is petty theft.” (§ 488.)


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defendant’s punishment; whereas in the present case, defendant seeks to decrease his

punishment due to a change in the law. However, as in Maestas, to accept the People’s

argument would be to determine that defendant committed a crime other than that to

which he pleaded guilty. (See §§ 486-488.) We conclude that as a matter of law, the trial

court may not now consider the conviction a grand theft. (See Maestas, supra, 143

Cal.App.4th at pp. 252-253.) The conviction itself establishes the value of the property

taken, and defendant therefore met his burden. We will reverse the trial court’s denial of

defendant’s petition for reclassification of his conviction of petty theft with a prior.

       Although we conclude defendant’s conviction met the threshold qualification for

relief under Proposition 47 and section 1170.18, the trial court must further determine on

remand whether defendant is otherwise eligible for relief, including the determination of

whether resentencing defendant would pose an unreasonable risk of danger to public

safety. (§ 1170.18, subd. (b).)

                                       DISPOSITION

       The order denying defendant’s petition for reclassification of his conviction of

petty theft with a prior is reversed, and the matter is remanded for further proceedings.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                 McKINSTER
                                                                                            J.
We concur:

RAMIREZ
                        P. J.

MILLER
                           J.


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