People v. Rubio CA3

Filed 8/9/16 P. v. Rubio CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C078738

v. (Super. Ct. No. CM000457)

MARCELO RUBIO, JR.,

Defendant and Appellant.

Defendant Marcelo Rubio, Jr., appeals from the trial court’s order denying his application to designate a prior felony conviction for grand theft a misdemeanor (Pen. Code, § 487)1 pursuant to section 1170.18. He contends (1) the trial court relied on incompetent evidence (the victim’s statement in the probation report) to deny his application and (2) trial counsel’s failure to object to this evidence constituted ineffective

1 Undesignated statutory references are to the Penal Code.

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assistance. We conclude defendant failed to carry his burden of proving his eligibility for redesignation of his offense. As a result, the trial court’s ruling was correct regardless whether the evidence was properly admitted, and trial counsel’s failure to object to its admission could not prejudice defendant. We affirm the trial court’s order. BACKGROUND In 1991, defendant was charged with grand theft for the act of stealing a boat motor. He pleaded no contest to the charge and was sentenced later that year to serve a three-year prison term. Defendant initialed a section of the plea form allowing the trial court to take the factual basis of the plea from “probation reports, police reports or other source as deemed necessary.” According to the probation report, on June 7, 1991, defendant and another man stole the motor from a boat that was parked on a street with a “For Sale” sign attached. The victim reported the motor was worth $1,500. In December 2014, defendant filed an application for designation of the theft offense as a misdemeanor. The trial court denied the motion, finding defendant was ineligible because the motor he stole was worth $1,500. DISCUSSION I Trial Court’s Denial of Defendant’s Application The passage of Proposition 47 created section 1170.18, which provides: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to