California Cases September 30, 2019: People v. Silva

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCD244770)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed.

Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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Eric Silva appeals an order denying his petition to designate his felony grand theft conviction as a misdemeanor. (Pen. Code, § 487, subd. (a).) He sought relief under section 1170.18, which permits eligible persons to petition the trial court to change qualified previous felony convictions to misdemeanors pursuant to Proposition 47. The trial court denied Silva's petition on the basis that his conviction was ineligible for relief because the value of the stolen property exceeded $950. Silva's conviction involves a guilty plea to one count of grand theft (§ 487, subd. (a)), and six counts of burglary (§ 459) of MoneyGram vendors between April and July 2012. We conclude that the trial court properly denied the petition because Silva failed to establish his eligibility for resentencing.

In 2012, Silva was charged with one count of grand theft and 28 counts of burglary. The charges stem from numerous thefts of MoneyGram vendors at 7-Eleven convenience stores between April and July 2012. Silva pleaded guilty to grand theft of personal property of a value exceeding $950 (§ 487, subd. (a)) and six counts of burglary (§ 459) for a stipulated sentence of six years in county jail. In exchange, the other 22 burglary counts and numerous prison prior allegations were dismissed.

In 2014, after passage of Proposition 47, Silva filed a petition under section 1170.18, requesting his grand theft and second degree burglary convictions be reduced to misdemeanors. In March 2015, the trial court denied the petition on the basis

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that no counts were eligible under section 1170.18 because the stolen property was in excess of $950 (based on restitution of greater than $20,000) and the burglaries were not shoplifting.

In 2017, after Silva was released from jail, he again petitioned for the grand theft and burglary convictions to be designated as misdemeanors pursuant to section 1170.18. The district attorney agreed on eligibility, and the trial court granted the petition in connection to the six burglary convictions; however, the trial court denied the petition for the grand theft, finding it ineligible because the conviction was for an amount exceeding $950. The grand theft denial was based on Silva failing to set forth a plausible basis to grant relief under section 1170.18. The order further pointed out that Silva specifically admitted and pleaded guilty to grand theft of personal property of a value exceeding $950, and that Silva provided no evidence to support a finding that the property was worth less than this amount.

In August 2018, Silva filed a second petition to designate the grand theft felony conviction as a misdemeanor under section 1170.18, subdivision (f). This time, Silva provided a non-sworn supporting attachment claiming that all the thefts were for less than $950 and, without explaining how, that he could prove it. Silva pointed to the list of restitution amounts in an attempt to show most of the thefts were for less than $950. However, as admitted by Silva, there are five victims owed restitution amounts greater than $950. Silva attempts to explain away these amounts by stating that most likely he stole from these victims more than once. The trial court again denied Silva's petition, simply stating that the grand theft was for an amount exceeding $950.

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Silva timely appealed.

"Approved by the voters in 2014, Proposition 47 the Safe Neighborhoods and Schools Act, reduced the punishment for certain theft- and drug-related offenses, making them punishable as misdemeanors rather than felonies. To that end, Proposition 47 amended or added several statutory provisions, including new . . . section 490.2, which provides that 'obtaining any property by theft' is petty theft and is to be punished as a misdemeanor if the value of the property taken is $950 or less." ( People v . Page (2017) 3 Cal.5th 1175, 1179 ( Page ).)

Proposition 47 also added a new crime of shoplifting (§ 459.5), which is defined as "(a) . . . entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). . . . [¶] (b) Any act of shoplifting . . . shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5.)

Section 487, subdivision (a) defines grand theft as when "personal property taken of a value exceeding nine hundred fifty dollars ($950)." (§ 487, subd. (a).) Further, "a person serving a sentence for grand theft under Penal Code section 487 or another statute expressly defining a form of grand theft . . . is clearly eligible for resentencing under

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section 1170.18 if he or she can prove the value of the property taken was $ 950 or less." ( Page , supra , 3 Cal.5th at p. 1182.)

Separate provisions of Proposition 47, codified in section 1170.18, subdivisions (a) and (f), establish procedures under which a person serving a felony sentence, or having already completed a sentence at the time of Proposition 47's passage may be resentenced to a misdemeanor term if the person "would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense." (§ 1170.18, subd. (a).) "The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." ( People v . Romanowski (2017) 2 Cal.5th 903, 916 ( Romanowski ).) At issue is whether grand theft of personal property of a value exceeding $950 (§ 487, subd. (a)) is eligible for a Proposition 47 reduction to a misdemeanor, and if so, whether the record supported a finding that Silva's conviction met the $950 or less statutory threshold. We review a 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 ( Perkins ).)

A statute's interpretation is subject to de novo review on appeal. ( Perkins , supra , 244 Cal.App.4th at p. 136.) "In interpreting a voter initiative, we apply the same principles that govern our construction of a statute." ( People v . Lopez (2005) 34 Cal.4th 1002, 1006.) " 'In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be

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achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]' [Citation.] We also ' "refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.] 'Using these extrinsic aids, we "select the construction that comports most closely with the apparent intent of the [electorate], with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." ' " ( People v . Superior Court ( Cervantes ) (2014) 225 Cal.App.4th 1007, 1014.)

Silva contends his conviction for grand theft under 487, subdivision (a) qualifies for resentencing because the grand theft was predicated on the aggregation of 28 counts of burglary charges of property less than $950, which would now be classified as shoplifting. We are not persuaded.

Proposition 47 reduced certain theft- and drug-related offenses to misdemeanors; however, it did not include grand theft of personal property more than $950. (§§ 487, 1170.18, subd. (a).) Proposition 47 added section 490.2, which provides that theft of personal property with a value that does not exceed $950, "shall be considered petty theft and shall be punished as a misdemeanor." Section 490.2 sought to eliminate provisions that "carved out separate categories of grand theft based on the type of property stolen, with either a lower value threshold or no value threshold at all." ( Romanowski , supra , 2 Cal.5th at p. 908.) Section 487, subdivision (a) defined grand theft as the theft of "more

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than $950 worth of anything . . . ." ( Romanowski , at p. 907.) By inserting a $950 threshold, Proposition 47 ensured that " 'such crimes would no longer be charged as grand theft solely because of the property involved . . . .' " ( Romanowski , at p. 908.) "[A] person serving a sentence for grand theft under Penal Code section 487 or another statute expressly defining a form of grand theft . . . is clearly eligible for resentencing under section 1170.18 if he or she can prove the value of the property taken was $ 950 or less." ( Page , supra , 3 Cal.5th at p. 1182.)

However, Proposition 47 did not amend section 487, subdivision (a), which explicitly sets the prerequisite for the value of the stolen property at $950 or more to qualify as grand theft. Silva pleaded guilty to this exact charge, grand theft of personal property of a value exceeding $950. (§ 487, subd. (a).)

A plea of guilty waives any defects in the form of the allegations of the accusatory pleading. ( People v . Dysart (1940) 39 Cal.App.2d 287, 292.) A guilty plea "constitutes an admission of every element of the offense charged and constitutes a conclusive admission of guilt. . . . obviat[ing] the need for the prosecution to come forward with any evidence." ( People v . Turner (1985) 171 Cal.App.3d 116, 125.)

When Silva pleaded guilty to grand theft, he acknowledged the value of the property was worth more than $950. When taking the plea, the court stated, "[t]o the charge in count 1 that on or about and between April 7th and July 7th of [2012], you did unlawfully take property of various MoneyGram vendors, the value in excess of $950 . . . how do you plead?" Silva responded, "Guilty," with no qualification regarding the value. The factual basis accepted by Silva for purposes of plea stated, "the value was

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over $950." Thus, the record of conviction establishes Silva was guilty of grand theft. There was no evidence presented to support that this conviction resulted from the aggregation of multiple thefts or from an individual theft. The only evidence in the record discussing the monetary amounts of the thefts is the order of restitution, which is not in dispute. In the order of restitution, there are 20 individuals owed money with 15 being in amounts less than $950, and five amounts greater than $950, for a total of over $20,000 owed in restitution. Silva's guilty plea simply states that he is guilty of grand theft by willfully and unlawfully taking personal property of another, and the value was over $950.

A defendant has the burden of establishing the value of the property stolen. ( People v . Sherow (2015) 239 Cal.App.4th 875 ( Sherow ).) If Silva did not wish to admit to having stolen property valued in excess of $950, his remedy was either to enter into an agreement to plead to a lesser offense or withdraw his plea and proceed to trial where he could then offer evidence establishing the value of the stolen property. He did neither; instead, he agreed to be convicted as charged.

Silva made no objections or attempts to qualify the monetary amount of the stolen property when he pleaded guilty. Therefore, he agreed to all elements of the crime, and most importantly here to the element that the stolen property's value was greater than $950. Allowing section 487, subdivision (a) to qualify under Proposition 47 would do injustice to the initiative. Proposition 47's express intent was to "ensure that prison spending is focused on . . . serious offenses." (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2017) p. 7, at

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<https://www.courts.ca.gov/documents/Prop-47-Information.pdf > [as of September 30, 2019] archived at <https://perma.cc/6L53-83RZ> (Couzens & Bigelow).) Proposition 47 sought to accomplish this intent through the reduction of theft offenses of property less than $950 to misdemeanors. (Couzens & Bigelow, Proposition 47 at p. 7; see §§ 490.2, 459.5.) From the plain meaning of the text, section 487, subdivision (a) is not eligible for resentencing under section 1170.18 to a misdemeanor.

The record is unclear of the underlying evidence for the grand theft charge due to the guilty plea. We recognize the novel question of whether burglary charges that are now eligible as shoplifting under section 459.5 are aggregable into a grand theft charge given section 459.5 subdivision (b), but this is a question we will not address on the record before us. Due to Silva's lack of evidence presented to support such a claim, and the lack of evidence in the record, we decline to analyze whether such an aggregation is proper under Proposition 47 and section 459.5, subdivision (b). Therefore, we find that the trial court did not err in denying Silva's petition to designate his grand theft felony as a misdemeanor pursuant to section 1170.18 because section 487, subdivision (a) is not an eligible offense for resentencing.

The basic premise of a section 1170.18 petition is "[a]n applicant is entitled to relief if he or she has committed a qualified crime . . . ." ( People v . Washington (2018) 23 Cal.App.5th 948, 953 (emphasis added).) When a defendant files a petition or application for relief under Proposition 47, the trial court conducts an initial screening, which is limited to a determination of whether the applicant has presented a prima facie

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basis for relief under section 1170.18. ( Washington , at p. 953.) This initial screening is based on a review of the petition itself, generally prepared by the petitioner in pro per, as well as the record of conviction. ( Ibid .) "If the court finds, based on the petition and its review of the record, that there is a prima facie basis for relief, the court should then hold 'a full qualification hearing at which any additional evidence may be received on the issue of eligibility.' " ( Id . at p. 955.) The trial court's initial screening for a prima facie basis for relief includes a review to determine the eligibility of the underlying conviction, if the conviction is one that has not been previously deemed an eligible offense.

The initial screening process and burden to prove eligibility for resentencing is the same under section 1170.18, subdivisions (a) and (f). ( Page , supra , 3 Cal.5th at p. 1185.) Under section 1170.18, subdivision (a) Silva "must provide some evidence of eligibility when he files the petition." ( Perkins , supra , 244 Cal.App.4th at p. 137.) The trial court may summarily deny a section 1170.18 petition that makes only a bare assertion regarding the value of stolen property without any evidence supporting it. ( Perkins , at pp. 137-138.) "In many cases, a petition will be deficient because the offender seeks resentencing for a crime that has not been reclassified as a misdemeanor." ( Id . at p. 138.)

In Perkins , the trial court did not err when it summarily denied a section 1170.18, subdivision (a) petition in which the defendant alleged he had been convicted of receiving stolen property and that the value of the property did not exceed $950, but which did not "indicate anywhere on the form the factual basis of his claim regarding the value of the stolen property." ( Perkins , supra , 244 Cal.App.4th at p. 137; see People v . Johnson (2016) 1 Cal.App.5th 953, 956-957, 969.) Likewise, in Sherow , the trial court

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did not err by summarily denying a section 1170.18, subdivision (a) petition requesting resentencing of several second degree burglary convictions because the petition contained no "separate discussion of the counts, no reference to facts or evidence and no argument." ( Sherow , supra , 239 Cal.App.4th at p. 877.)

Silva's original petition for resentencing was filed under section 1170.18 and the cases discussed above are illustrative of the requirements for initial screening. Silva provided no such proof of evidence to show eligibility for his petitions under section 1170.18, subdivision (a).

However, Silva's applications in 2017 and 2018 were filed under 1170.18, subdivision (f). This does not change our conclusion that Silva must provide some evidence of eligibility when he files the petition; this conclusion is supported by the language and structure of the statute. Section 1170.18, subdivision (f) permits offenders who have completed their sentence to "file an application" and "have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) "The statute does not expressly require the trial court to hold a hearing before considering the eligibility criteria, nor is there a reference to the taking of 'evidence' or other proceeding that would compel involvement by the parties." ( People v . Bradford (2014) 227 Cal.App.4th 1322, 1337 [discussing nearly identical statutory language in § 1170.126, subd. (e)].) The statute simply states: "If the application satisfies the criteria [as a

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misdemeanor], the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)

Finally, the rationale of the cases construing section 1170.18, subdivision (a) applies to our interpretation of section 1170.18, subdivisions (f) and (h). First, a defendant seeking redesignation has the burden of establishing his or her eligibility. (See Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting."]; Perkins , supra , 244 Cal.App.4th at p. 136.) Second, interpreting section 1170.18, subdivision (h) as requiring a hearing any time a defendant requests one in conjunction with a petition for redesignation, without an initial showing of eligibility, could lead to absurd results. For instance, as in this case, the trial court would be required to hold a hearing even if the defendant seeks resentencing for a crime that has not been reclassified as a misdemeanor. (See Perkins , at p. 138.)

Silva failed to carry his burden of showing the value of the property he took did not exceed $950. Silva has failed to provide any evidence showing that the thefts from the MoneyGram vendors had a value less than $950. Silva did not submit a sworn

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affidavit about the value of the thefts or any witness testimony to show the value of any stolen property was less than $950. The only mention in the record of the value of any theft is in the order of restitution, which only lists values to individuals and does not link those values to the stores stolen from, to dates, or to items stolen. Additionally, the order of restitution lists values over $950 for five individuals. Based on this record, it is clear that Silva failed to establish that the amount he stole was worth less than $950, despite having the opportunity to do so. Because Silva did not provide any evidence supporting his eligibility for section 1170.18 relief, he did not satisfy his burden, and the trial court did not err in denying the petition.

In sum, we conclude that under section 1170.18, subdivision (f), Silva had the initial burden to demonstrate his eligibility for redesignation of his felony conviction of violating section 487, subdivision (a) by making a prima facie showing that the value of the stolen property did not exceed $950. Because Silva failed to meet that burden, the trial court did not err by denying his petition.

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The order is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

GUERRERO, J.