California Court of Appeal Jul 7, 2016 No. E064597Unpublished
Filed 7/7/16 P. v. Pardue 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E064597
v. (Super.Ct.No. RIF1101980)
DONALD MICHAEL PARDUE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Marta I. Stanton, 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, A. Natasha Cortina, and Seth M.
Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant Donald Michael Pardue appeals an order denying a petition to recall his
sentence for grand theft, charged in count 5, and for resentencing to a misdemeanor under
Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, §§ 1170.18, 487,
Defendant did not meet his burden of establishing in the trial court that the value
of the stolen property alleged in count 5 did not exceed $950. Defendant did not attach
any information or evidence necessary to enable the court to determine eligibility. Nor
did defendant testify about the nature of the items taken. This lack of evidence and
ambiguity as to the specifics of each count is reflected in the court and counsel’s
perplexing comments made during the petition hearing. For instance, the trial court
stated defendant only pled to two section 487, subdivision (a), counts and a “host of them
were dismissed.” The trial court then corrected itself and said defendant pled guilty to
four grand theft counts. Defendant actually pled guilty to six section 487, subdivision
(a), counts (counts 3-5, 12-13, and 15). The trial court noted that count 15 was dismissed
but the record does not show this.
In addition, the trial court stated that there was a waiver of restitution but the
record does not show any express waiver regarding restitution at the time of defendant’s
plea. The trial court ordered $3,500 in restitution only as to a victim who appeared at the
plea hearing and testified he suffered a loss of $3,500. This was not the victim in count
5, which is the subject of the instant appeal. The trial court reserved jurisdiction over
restitution as to the other counts.
Furthermore, there is nothing indicating that at the time of the resentencing
hearing, defendant presented any evidence showing that, as to any of the grand theft
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counts individually or collectively, the value of the stolen property did not exceed $950.
There is no showing as to the value of any of the stolen property, other than the
allegations in the pleadings, which state that the value of the stolen property exceeded
either $400 or $950, depending on the particular count. Such allegations do not establish
that the stolen property, as to any of the counts, did not exceed $950.
While we do not agree with the trial court’s stated reasons for denying defendant’s
resentencing petition, we agree with the outcome. “[O]n appeal we are concerned with
the correctness of the superior court’s determination, not the correctness of its reasoning.
(People v. Dawkins (2014) 230 Cal.App.4th 991, 1004 . . . [‘“If right upon any theory of
the law applicable to the case, [a decision] must be sustained regardless of the
considerations which may have moved the trial court to its conclusion. [¶] . . . [¶] In
other words, it is judicial action, and not judicial reasoning or argument, which is the
subject of review; and, if the former be correct, we are not concerned with the faults of
the latter.” [Citation.]’].) ‘“[W]e may affirm a trial court judgment on any [correct] basis
presented by the record whether or not relied upon by the trial court. [Citation.]”
[Citation.]’ (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257,
1268.)” (Perkins, supra, 244 Cal.App.4th at p. 139.)
Here, the record on appeal shows there was insufficient evidence or, rather, no
evidence supporting defendant’s petition for resentencing on count 5. Defendant argues
the burden is on the People to prove the value of the stolen property exceeds $950 but, as
Sherow holds, the burden is on defendant to prove the stolen property does not exceed
$950. (Sherow, supra, 239 Cal.App.4th at pp. 878-880; see Rivas-Colon, supra, 241
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Cal.App.4th at p. 449.) Defendant failed to meet this burden. His petition did not
provide any evidence as to the value of the stolen property alleged in count 5, nor was
any evidence presented at the hearing on the petition.
Furthermore, in the trial court, there was no differentiation in the petition or during
the hearing as to the value of the stolen property alleged in each of the six grand theft
counts, and the trial court’s ruling was improperly based on the aggregate value of all of
the stolen property alleged in each theft count. Now, on appeal, defendant is challenging
only the trial court’s denial of resentencing as to count 5. There was no showing in the
trial court at the time of the hearing on the resentencing petition as to the value of the
stolen property alleged in count 5. On appeal, defendant attempts, after the fact, to
rectify this deficiency in evidence by including in the record on appeal the preliminary
hearing transcript. Defendant also requested that the record on appeal include the police
report but, according to the superior court clerk, a police report was not filed or retained
by the trial court. This is most likely because defendant did not submit the police report
to the trial court for consideration when the trial court ruled on the petition. Therefore
the police report is not part of the trial court record or this court’s record.
In reviewing the trial court’s ruling on defendant’s resentencing petition, we are
limited to considering the evidence before the trial court when it ruled on the petition.
The record shows that the police report and preliminary hearing transcript were not
submitted to the trial court as evidence supporting defendant’s resentencing petition.
Therefore we will not consider such evidence on review. Accordingly, since defendant
failed to present the trial court with any evidence establishing that the stolen property
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alleged in count 5 did not exceed $950, we affirm the trial court ruling denying
defendant’s resentencing petition. (Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450.)
IV
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed without
prejudice to refiling, because defendant did not carry his burden of proof in the trial
court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to meet his burden of proof to establish that the value of the stolen property in his grand theft conviction did not exceed $950, as required for resentencing under Proposition 47.
Issues
Whether the trial court erred in considering the aggregate value of stolen property from all counts rather than the value of the specific count at issue.
Whether the defendant met his burden of proof to show the stolen property value in count 5 did not exceed $950.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude defendant did not meet his burden of showing the value of the stolen property alleged in count 5 did not exceed $950.”
“The petitioner has the burden of establishing eligibility for resentencing”