Filed 6/15/16 P. v. Moore 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063358

v.                                                                      (Super.Ct.No. INF1400898)

NICOLAS BENJAMIN MOORE,                                                 OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Victoria E. Cameron,

Judge. Affirmed.

         Paul Stubb, Jr., 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, Barry Carlton, and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                      INTRODUCTION

       Defendant Nicolas Benjamin Moore appeals an order denying a petition to recall

his four-year sentence for receiving stolen property, with a strike prior, and for

resentencing as a misdemeanor under Proposition 47, the Safe Neighborhoods and

Schools Act. (Pen. Code, §§ 1170.18, 496, subd. (a), 667, subd. (a)-(d).)1 Defendant

contends the trial court erred in finding that the value of the stolen property exceeded

$950, thereby disqualifying defendant from resentencing under Proposition 47.

       We conclude defendant did not meet his burden of establishing that the value of

the stolen property did not exceed $950. The trial court therefore did not err in denying

defendant’s motion for resentencing, and the judgment is affirmed.

                                               II

                      FACTS AND PROCEDURAL BACKGROUND

       In September 2014, defendant pled guilty to a single count of felony receiving

stolen property and admitted one prior strike conviction2 in exchange for imposition of a

four-year sentence (the middle term, doubled for the strike prior) and dismissal of

defendant’s remaining prior convictions and prison priors. The trial court imposed the

four-year sentence in October 2014.




       1   Unless otherwise noted, all statutory references are to the Penal Code.

       2   Sections 496, subdivision (a), 667, subdivisions (b)-(i).

                                               2
       In November 2014, the electorate passed Proposition 47. Defendant filed a

petition for resentencing under Proposition 47. The People opposed the petition,

asserting that the value of the stolen property at issue, consisting of a wallet, checkbook,

and credit card, exceeded $950. The trial court set the matter for a hearing on the value

of the stolen property.

       Defendant, represented by counsel, filed points and authorities in support of his

petition for resentencing. Defendant argued that the record of conviction established that

the stolen credit cards were of no value to anyone except the account holder and the

record was devoid of any evidence which would disqualify defendant from resentencing.

Defendant disagreed that the credit card limit was the value of the credit card, because the

available credit could have been far less. Also, once a stolen credit card is reported

stolen, the account is frozen and the card cannot be used by anyone. Defendant noted

that, even before this happens, banks are quick to detect unauthorized use and freeze the

account. Defendant argued the courts look to the fair market value of the item, not the

value to the owner.

       The People filed opposition, arguing that the card had value beyond the plastic

from which it was made. Credit cards are stolen for the purpose of using them up to the

credit limit, which should therefore serve as the measure of the value of the card. The

People added this same manner of determining value applies to the stolen checks. The

balance in the checking account would determine the value of the stolen checks.

       In response, defendant filed supplemental points and authorities, attaching an

article discussing the value of stolen credit cards. The article states that the value is not

                                               3
how much credit is available on the credit card, but the extent to which the credit card is

being used fraudulently. The brief article concludes the value of a credit card on the

black market is only $3.50.3

       During the hearing on defendant’s resentencing petition, the trial court noted

defendant had the burden of proof. The court stated that, had the crime been prosecuted

at the time of the resentencing hearing, it would have been a felony. The court concluded

defendant did not meet his burden of proof in establishing that the value of the stolen

property did not exceed $950.

       The court stated it agreed with the People that a credit card is worth more than the

plastic it is made of. Otherwise no one would bother stealing a credit card. Credit cards

“are stolen for the credit limit as are the checks.” The court found, based on the listed

credit limits of each of the stolen items, that “the credit card and the checks, the book of

checks, they each in and of themselves carry a value in excess of $950.” The court also

noted that, in order for defendant to have pled guilty to the felony of receiving stolen

property, the value of the stolen property would have exceeded $950. The court believed

the attorney representing defendant when he pled guilty would not have permitted

defendant to plead guilty to felony receipt of stolen property if defense counsel thought

the value of the stolen property was less than $950.

       Defendant’s attorney, Alex Hallowell, stated that he was not certain of either the

credit limit on the stolen credit card or the remaining available credit on the card.

       3 The reliability of the article is questionable. The publisher of the 2011 article is
not identified. The author is “bryanh.” The article is dated December 27, 2011.

                                              4
Hallowell stated that what mattered was that defendant did not use the credit card and

was not charged with doing so. He was only charged with possessing the credit card.

Hallowell added there is case law that holds that the value of a stolen item is the fair

market value; that is, what the item can be sold for on the open market. Hallowell

believed a credit card could not be sold on the open market for the value of the card’s

credit limit. He believed that the amount someone would pay for a credit card would be

somewhat less than that. The prosecutor at the resentencing hearing, Kristi Hester,

argued the stolen property exceeded $950 in value, as asserted in the People’s opposition.

       The court noted that the issue was whether the credit card limit was the value of

the card. Hallowell responded he did not know what the value of the credit card was,

what the credit card limit was, or how much credit was available on the credit card.

Hallowell added that defendant was not convicted of using the credit card or checks. He

was only convicted of possession.

       The trial court denied defendant’s resentencing petition, finding that the value of

the credit card, wallet, and checks exceeded $950. The court explained that defendant

did not possess the credit card just for the plastic. He possessed it because it had value

because of the credit card limit.

                                             III

                                       DISCUSSION

       Defendant contends the record does not show that the value of the stolen property

associated with his conviction for receipt of stolen property exceeded $950. The stolen

property consists of a wallet and checkbook, and their contents, including a credit card

                                              5
and checks. Defendant further contends there was no loss because defendant did not use

the stolen credit card or checks. The People argue the stolen property had monetary

value and defendant did not meet his burden of establishing the value did not exceed

$950.

A. Applicable law

        Proposition 47 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 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).) A person seeking resentencing under section 1170.18 must show he or she fits

the criteria in subdivision (a). If the person satisfies the criteria, the person shall have his

or her sentence recalled and 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. (§ 1170.18, subd. (b); T. W. v. Superior Court (2015) 236

Cal.App.4th 646, 649, fn. 2.)

        Section 1170.18, subdivision (b) provides in part: “Upon receiving a petition

under subdivision (a), the court shall determine whether the petitioner satisfies the criteria

in subdivision (a).” “Under subdivision (b) a person who satisfies the criteria in

subdivision (a) of section 1170.18 shall have his or her sentence recalled and be

sentenced to a misdemeanor (subject to certain exclusions not relevant here).” (People v.

Sherow (2015) 239 Cal.App.4th 875, 879.) The statutory criteria a defendant must

establish for resentencing “are that the ‘person [is] currently serving a sentence for a

                                               6
conviction, whether by trial or plea, of a felony or felonies who would have been guilty

of a misdemeanor . . . had this act been in effect at the time of the offense . . . .’

(§ 1170.18, subd. (a).)” (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1309.)

       Defendant has the burden of proof of establishing that the stolen property’s value

does not exceed $950. (People v. Sherow, supra, 239 Cal.App.4th at pp. 878, 880.) We

review the trial court’s legal conclusions de novo and its findings of fact for substantial

evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136.) “The trial

court’s decision on a section 1170.18 petition is inherently factual, requiring the trial

court to determine whether the defendant meets the statutory criteria for relief,” including

whether the value of the property involved is less than $950. (People v. Contreras (2015)

237 Cal.App.4th 868, 892.)

B. Analysis

       Here, the trial court appropriately conducted an evidentiary hearing to determine

the value of the stolen property. Defendant failed to present admissible evidence at the

hearing establishing the actual property value of the stolen property. We recognize that

proving the value of stolen credit cards and checks may be difficult. Nevertheless,

defendant has the burden of doing so in order to prevail on his petition for resentencing.

Defendant argues the trial court erroneously disqualified him from resentencing by

speculating as to the actual value of the credit card. It was undisputed that the credit limit

on the stolen credit card exceeded $950, and that defendant had not used the stolen credit

card or checks. Defendant argues the credit card limit or amount of available credit left

on the card does not establish the value of the credit card.

                                                7
       Citing jury instruction CALJIC No. 14.26, the court in People v. Pena (1977) 68

Cal.App.3d 100, 102 defined the value of stolen property as fair market value of the

stolen items: “‘Fair market value is the highest price, estimated in terms of money, for

which the property would have sold in the open market at that time and in that locality, if

the owner was desirous of buying but under no urgent necessity of doing so, if the seller

had a reasonable time within which to find a purchaser, and if the buyer had knowledge

of the character of the property and of the uses to which it might be put.’” (Ibid., at fn.

1.)

       The Pena court also cited CALJIC No. 14.27, which instructs in relevant part that

“An expression of opinion on value by the owner may be considered by you in

determining value together with any other evidence bearing on that issue. In determining

what weight to give an owner’s opinion, you should consider the believability of the

owner, the facts or materials upon which the opinion is based and the reasons for the

opinions. [¶] An opinion is only as good as the facts and reasons on which it is

based. . . . [¶] You are not bound to accept an opinion as conclusive, but you should give

to it the weight which you shall find it to be entitled. You may disregard any opinion if

you find it to be unreasonable.” (See People v. Pena, supra, 68 Cal.App.3d at p. 102, fn.

1; Miller v. People (1977) 193 Colo. 415, 417-418 [When determining the value of credit

cards for purposes of a theft prosecution “[w]here there is no legal market, evidence of

the illegal market price and other objective evidence may be considered”].)

       Here, the trial court held an evidentiary hearing and made a factual determination

on the value of the property. After allowing the parties to present evidence and argument

                                              8
on the value of the credit card and other stolen items, the court reasonably found that

defendant did not meet his burden of proving the value of the stolen property associated

with his conviction was not more than $950. By pleading guilty to felony theft in 2014

(§ 496, subd. (a)), defendant admitted the elements of the crime, defendant’s attorney

joined in the plea, and the trial court approved it, finding there was a factual basis for the

plea. At the time of defendant’s plea and conviction for receipt of stolen property,

section 496, subdivision (a), stated in relevant part that “Every person who buys or

receives any property that has been stolen . . . shall be punished by imprisonment in a

county jail for not more than one year, or imprisonment pursuant to subdivision (h) of

Section 1170. However, if the district attorney . . . determines that this action would be

in the interests of justice, the district attorney . . . may, if the value of the property does

not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the

offense shall be a misdemeanor, punishable only by imprisonment in a county jail not

exceeding one year.” (Former § 496, subd. (a).)

       The complaint in the instant case charged the offense of receipt of stolen property

as a felony, not a misdemeanor, and defendant pled guilty to committing the crime of

felony receipt of stolen property. Since the crime was not alleged as a misdemeanor and

defendant agreed to plead guilty to the crime as a felony, it can be reasonably inferred

that the parties agreed the value of the stolen property exceeded $950. In addition, during

the resentencing hearing, it was undisputed the credit card limit exceeded $950, which

the trial court took into consideration in determining the value of the stolen property. The

court noted that no one disputed that the credit card limit was over $950. Defendant’s

                                                9
attorney acknowledged that he did not know what the value of the credit card was, what

the credit card limit was, or how much credit was available on the credit card.

       Because defendant is the petitioner seeking relief, and because Proposition 47 does

not provide otherwise, defendant has the burden of establishing eligibility for

resentencing. (People v. Perkins, supra, 244 Cal.App.4th at p. 136.) “In a successful

petition, the offender must set out a case for eligibility, stating and in some cases showing

the offense of conviction has been reclassified as a misdemeanor and, where the offense

of conviction is a theft crime reclassified based on the value of stolen property, showing

the value of the property did not exceed $950. [Citations.] The defendant must attach

information or evidence necessary to enable the court to determine eligibility.” (Id. at pp.

136-137.) Defendant has not adequately done this in the instant case. Because defendant

has not presented sufficient admissible evidence establishing that the value of the stolen

wallet, checkbook, and credit card is $950 or less, defendant has failed to meet his burden

of proof that he qualifies for resentencing.

                                               IV

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                CODRINGTON
                                                                                             J.
We concur:

RAMIREZ
                        P. J.

McKINSTER
                           J.
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