People v. McCammon CA2/6

Filed 6/13/16 P. v. McCammon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B264257 (Super. Ct. No. F495822) Plaintiff and Respondent, (San Luis Obispo County)

v.

TRAVIS LEE MCCAMMON,

Defendant and Appellant.

Appellant Travis Lee McCammon was charged with two counts of burglary (Pen. Code, § 459),1 three counts of receiving stolen property (§ 496, subd. (a)), and one count each of grand theft of personal property (§ 487, subd. (a)) and possession of burglar’s tools (§ 466). The information alleged that he sustained three prior burglary convictions. (§§ 667, subds. (a), (d), (e), 667.5, subd. (b), 1170.12, subds. (b), (c).) Confronted with a potential sentence of decades in prison, McCammon entered into a negotiated agreement and pled no contest to one count of receiving stolen property–a credit card belonging to Lubura Dejawa–and admitted a “strike” and a prior prison term. He was sentenced to five years in prison. The remaining charges and allegation were dismissed.

1 All further statutory references are to the Penal Code.

Following passage of section 1170.18 (Proposition 47) by voter initiative in November 2014, McCammon sought to have the offense reduced to a misdemeanor. The trial court “den[ied] the motion based on the Harvey waiver.”2 Without resolving whether the value of Dejawa’s credit card exceeded $950, the trial court decided that it could “consider the value of the other property . . . for Prop 47” resentencing eligibility. The trial court found that McCammon failed to show that the aggregate value of the property in each of the originally charged counts–in particular the computer, television, watch, and other credit cards alleged in the grand theft count–was less than $950. Accordingly, the trial court ruled that he was ineligible for relief under Proposition 47. The trial court erred when it found that the sum to be considered was the aggregate amount. In determining whether appellant was eligible for Proposition 47 relief on a specific count, the trial court could not aggregate the sums at issue in other counts to exceed $950 and thereby make McCammon statutorily ineligible. We affirm, however, because McCammon failed to meet his burden of showing that the value of Dejawa’s credit card was less than $950. DISCUSSION The record does not disclose the facts surrounding McCammon’s offense. Proposition 47 provides that “[a] person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor . . . had [Proposition 47] been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing [under the law] as . . . amended . . . .” (§ 1170.18, subd. (a).) “If the petitioner satisfies the[se] criteria . . . , the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the