California Court of Appeal Jun 17, 2016 No. E063493Unpublished
Filed 6/17/16 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063493
v. (Super.Ct.No. RIF1202743)
PASCUAL GONZALEZ JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Defendant and appellant Pascual Gonzalez Jr. appeals from an order denying his
motion to reconsider the summary denial of his petition to reduce his felony conviction
for petty theft with a prior (Pen. Code, §§ 484, subd. (a) & 666, subd. (a))1 to a
misdemeanor pursuant to Proposition 47. On appeal, he argues that (1) the trial court
denied his due process rights when it summarily denied his petition without allowing him
provides “[n]otwithstanding Section 487 [concerning grand theft] or any other provision
of law defining grand theft, obtaining any property by theft where the value of the
money, labor, real or personal property taken does not exceed nine hundred fifty dollars
($950) shall be considered petty theft and shall be punished as a misdemeanor, except
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that such person may instead be punished pursuant to subdivision (h) of Section 1170 if
that person has one or more prior convictions for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense
requiring registration pursuant to subdivision (c) of Section 290.” (§ 490.2.)
Prior to the passage of section 10 of Proposition 47, section 666 allowed petty
theft to be punished as a felony with up to a year in prison—if the defendant had three or
more prior convictions for petty theft or other enumerated offenses. (Former § 666,
subd. (a), as amended by Stats. 2013, ch. 782, § 1.) Proposition 47 amended section 666,
eliminating that provision, effective November 5, 2014. (§ 666.) After the passage of
Proposition 47, petty theft can only be elevated to a felony if the value of the property
exceeds $950 (§ 490.2) or the defendant has certain enumerated priors (including one
prior conviction for petty theft) and the defendant: (1) is required to register as a sex
offender, or (2) has a prior violent or serious felony conviction, as defined in section 667,
subdivision (e)(2)(C)(iv) or section 368, subdivisions (d) or (e). (§ 666, subd. (b).)
In this case, the record does not indicate that defendant must register as a sex
offender or that he has a prior conviction defined as serious or violent. Nonetheless, the
inquiry does not end there. As enacted by Proposition 47, section 490.2 neither redefines
nor establishes a substantive theft offense. Instead, “theft” is defined in section 484,
subdivision (a), which provides: “Every person who shall feloniously steal, take, carry,
lead, or drive away the personal property of another, or who shall fraudulently
appropriate property which has been entrusted to him or her, or who shall knowingly and
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designedly, by any false or fraudulent representation or pretense, defraud any other
person of money, labor or real or personal property, or who causes or procures others to
report falsely of his or her wealth or mercantile character and by thus imposing upon
any person, obtains credit and thereby fraudulently gets or obtains possession of
money, or property or obtains the labor or service of another, is guilty of theft.” (See
People v. Davis (1998) 19 Cal.4th 301, 304-305 [§ 484 consolidates several formerly
distinct offenses into the single crime of theft, including larceny and theft by trick].)
Section 490a, in turn, provides that any law referring to larceny, embezzlement, or
stealing is a theft offense. (§ 490a.)
Every theft offense is either grand theft or petty theft—and the punishment options
depend on the degree of the crime. (§ 486.) A defendant commits grand theft, “[w]hen
the money, labor, or real or personal property taken” exceeds $950. (§ 487, subd. (a).)
Before the passage of Proposition 47, however, not all theft crimes were subject to the
$951 grand theft minimum. Theft of some property became grand theft at a lower value
threshold; for example, a defendant only had to steal $250 worth of “domestic fowls,
avocados, olives, citrus,” or other produce to be guilty of grand theft. (§ 487,
subd. (b)(1); see § 487, subd. (b)(2) [$250 worth of aquacultural products from a
commercial or research operation].) And theft of other types of property was deemed
grand theft regardless of value. For example, every theft of a “hog, sow, boar, gilt,
barrow, or pig” was designated grand theft (§ 487a), as was theft of “gold dust, amalgam,
or quicksilver” from “any mining claim, tunnel, sluice, undercurrent, riffle box, or
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sulfurate machine” (§ 487d). (See People v. Whitmer (2014) 230 Cal.App.4th 906, 918
[“It is well established that the Legislature’s intent regarding this provision was to
designate theft of the enumerated items as grand theft regardless of their value.”].) Any
theft not defined as grand theft is petty theft, a misdemeanor (§ 488)—and section 490.2
redefines petty theft. As discussed, section 490.2 reduces the possible punishment for
defendants convicted of “obtaining property by theft” worth less than $951. On its face,
section 490.2 reclassifies the array of criminal behavior described in the theft statutes as
petty theft whenever the stolen property is worth less than $951.
Prior to the passage of Proposition 47, the prosecutor could elect to charge a
defendant with felony petty theft with a prior if there existed three or more prior theft-
related convictions, regardless of the value or if the value was unknown. Thus, as the
trial court pointed out, just because defendant pled guilty to petty theft with a prior, did
not necessarily mean the value of the stolen items was less than $950. Defendant still
had the burden of showing the stolen property was valued at less than $950 to be eligible
for relief. Accordingly, we reject defendant’s argument that the value of the stolen items
was less than $950 by the mere fact he pled guilty to petty theft with a prior.
We also find that principles of res judicata do not apply under the circumstances.
Traditionally, the principle of res judicata “gives conclusive effect to a final judgment on
the merits in subsequent litigation of the same controversy.” (People v. Davis (1995) 10
Cal.4th 463, 514, fn. 10.) Here, just because defendant pled guilty to petty theft with a
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prior did not conclusively resolve the issue in the current appeal as to whether defendant
was eligible for resentencing under Proposition 47.
Relying on the rules of statutory construction, defendant also asserts in great
lengths that the voter’s intent under the Act was to reduce incarceration for nonviolent
crimes like petty theft and drug possession. Although defendant is correct in his statutory
analysis of the Act, defendant still has the burden of proving the total value of the stolen
items was less than $950 to be eligible for relief under the Act.
Defendant further asserts that the trial court erred in relying on the restitution
order in determining his eligibility for relief under the Act, because section 1202.4,
authorizing direct victim restitution, is not limited to the value of the stolen property but
includes all damages suffered by the victim.
Initially, we note defendant forfeited his right to complain about the trial court’s
consideration of the restitution order because defendant 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.) Here, defendant did not object to the restitution order at the original
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sentencing hearing where the victim made statements as to his losses. Defendant also did
not object to the restitution order at the motion to reconsider his Proposition 47 petition
hearing. (See Evid. Code, § 353 [no reversal due to erroneous admission of evidence
unless “[t]here appears of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear the specific ground of the
objection or motion”].)
In any event, we find the trial court did not err in relying on the restitution order in
determining defendant’s eligibility for relief under the Act.
In Bradford, supra, 227 Cal.App.4th 1322, cited in Sherow, supra, 239
Cal.App.4th at p. 880, the Court of Appeal considered the scope of the evidence a trial
court may review in ruling on a petition for recall of sentence under Proposition 36.2 The
Bradford court borrowed from the procedures outlined in People v. Guerrero (1988) 44
Cal.3d 343 (Guerrero) to hold that the trial court may examine only the record of
conviction in making its threshold determination whether the nature of the defendant’s
conviction qualifies for resentencing. (Bradford, supra, at pp. 1337-1341.) For this
purpose, the record of conviction includes pleadings, trial transcripts, pretrial motions,
and any appellate opinion. (See, e.g., People v. White (2014) 223 Cal.App.4th 512;
People v. Osuna (2014) 225 Cal.App.4th 1020, 1027, 1030; People v. Manning (2014)
226 Cal.App.4th 1133, 1140-1141.)
2 Proposition 47 is analogous to Proposition 36, which enacted section 1170.126 in 2012 to provide for resentencing in “Three Strikes” cases.
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The Bradford court added that “the trial court must be careful to avoid making a
precipitous decision without input from the parties”; thus, if the necessary facts are not
found in the record of conviction, the court should not deny the petition without notice to
the defendant and an opportunity to be heard, which does not require a formal hearing,
but may simply be by additional briefing. (Bradford, supra, 227 Cal.App.4th at
pp. 1340-1341.) In Bradford, the trial court referred to the record of conviction, found
evidence that the defendant had possessed wire cutters during the commission of the
crime, and concluded—without input from the parties—that wire cutters constitute a
dangerous weapon, making petitioner ineligible for resentencing. (Id. at pp. 1330, 1334.)
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 (Eckley).) “Reliability of
the information considered by the court is the key issue in determining fundamental
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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.)
In the present matter, the trial court properly considered the restitution order to
determine the value of the loss exceeded $950.3 The restitution order is part of the record
of conviction, and there is nothing to suggest it is unreliable. The restitution order was
made at the sentencing hearing following statements by the victim as to his losses.
Defendant did not challenge the amount of loss claimed by the victim. It is well settled
that “statements by the victims of the crimes about the value of the property stolen
constitute ‘prima facie evidence of value for purposes of restitution.’ [Citations.]”
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.) “Once the victim has made a
prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate
that the amount of the loss is other than that claimed by the victim. [Citations.]” (People
v. Prosser (2007) 157 Cal.App.4th 682, 690-691 (Prosser).) “Were the law otherwise, a
victim in a case such as this would be without a means for recovery. A victim who has
no receipts or appraisals for property received by gift, and who no longer has possession
of the property, may have no way of providing a detailed description or obtaining an
appraisal.” (Id. at p. 691.)
3 The trial court declined to consider the police report in the instant case as requested by the People, finding police reports generally to be unreliable.
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As the court in Prosser, supra, 157 Cal.App.4th 682 observed: “Defendant has
not convinced us that there is a reason why the thief, who has, or last had, possession of
the property, should not bear the burden of rebutting the victim’s estimate of value. If the
thief has disposed of the property and is, like the victim, ill poised to provide a detailed
description or an appraisal, it is indeed awkward. But the situation is one of the thief’s
own making, and as between the victim and the thief, the equities favor the victim.” (Id.
at p. 691.) “In determining the amount of restitution, all that is required is that the trial
court ‘use a rational method that could reasonably be said to make the victim whole, and
may not make an order which is arbitrary or capricious.’ [Citations.]” (People v. Akins
(2005) 128 Cal.App.4th 1376, 1382.)
In summary, we find the trial court properly denied defendant’s motion to
reconsider his Proposition 47 petition.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur:
McKINSTER J.
CODRINGTON J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant seeking resentencing under Proposition 47 bears the initial burden of proving eligibility, including that the value of the stolen property did not exceed $950, and that the trial court may rely on the record of conviction, including restitution orders, to determine such value.
Issues
Whether the trial court violated the defendant's due process rights by summarily denying his petition for resentencing without a hearing.
Whether the defendant met his burden of proving eligibility for resentencing under Proposition 47.
Whether the trial court erred in relying on a prior restitution order to determine the value of the stolen property for Proposition 47 eligibility purposes.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The petitioner will have the additional burden of proving the value of the property did not exceed $950.”
“The trial court may examine only the record of conviction in making its threshold determination whether the nature of the defendant’s conviction qualifies for resentencing.”