People v. Henley CA1/4

Filed 8/11/16 P. v. Henley CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A144664 v. MELVIN NOEL HENLEY, (Marin County Super. Ct. No. SC174944A) Defendant and Appellant.

Defendant and appellant Melvin Noel Henley appeals from an order denying his Proposition 47 petition to recall his sentence in his felony conviction for receipt of stolen property. (Pen. Code,1 §§ 1170.18, subd. (b); 496, subd. (a).) Finding no error, we affirm. Our affirmance, however, is without prejudice to defendant’s ability to file a new petition with evidentiary support for the facts he must prove to be entitled to relief under Proposition 47—which, in this case, required defendant to establish that the value of the stolen property did not exceed $950. I. BACKGROUND After being charged with multiple offenses, defendant pled guilty to one count of receiving stolen property—a laptop computer—in violation of section 496, subdivision (a), and admitted a prior prison term allegation. The trial court sentenced him to three years in prison. Inasmuch as the property had been returned to the victim, the trial court

1 Unless otherwise specified, all statutory references are to the Penal Code.

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determined that defendant was not required to pay victim restitution as part of his felony sentence. In December 2014, defendant filed a petition for resentencing under Proposition 47. He used a form petition to which he attached no evidence regarding the value of the laptop computer. At the first hearing on the petition, held on January 7, 2015, the trial court appointed the Public Defender to represent defendant on the resentencing petition. At the second hearing on the petition, held on January 14, 2015, defense counsel requested a hearing to determine the value of the stolen laptop computer. On January 30, 2015, the People filed an opposition to defendant’s petition for resentencing on the ground that the value of the stolen property “well exceeds the $950 threshold amount.” The People’s opposition advised the court that: “Defendant was provided with San Anselmo Police Department report number SA11-00213 and internet research regarding the value of the stolen MacBook laptop. The report . . . indicates the value of the laptop to be $2,000. Internet research for Apple MacBook laptop values in 2011 indicate a price range from $1,100 to nearly $1,500. These items will be provided to the court at the hearing on this matter.” The People further argued that at that hearing, defendant had the burden of providing by a preponderance of the evidence that the value of the property was under $950. At the third hearing on the petition, held on February 2, 2015, defendant requested a continuance, which was granted by the court. At the fourth hearing on the petition, held on February 3, 2015, the court and counsel discussed the value of the laptop and the issue of restitution. Although the reporter’s transcript for the hearing is not included in the record on appeal, the minute order reflects that the court heard argument and ruled that defendant had the burden of proof to establish his entitlement to the relief requested. At the fifth hearing on the petition, held on March 18, 2015, the court reiterated that defendant had the burden of establishing the value of the property was $950 or less. The court also noted that defense counsel had requested “some time to look into that.”