Filed 10/15/15 P. v. Arvizu CA4/1
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                    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

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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.




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