People v. Heath CA1/2

Filed 8/25/16 P. v. Heath CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A145457 v. JEFFREY J. HEATH, (Contra Costa County Super. Ct. No. 04-172487-1) Defendant and Appellant.

Defendant and petitioner Jeffrey J. Heath appeals from the trial court’s order denying his petition for redesignation of his conviction for receiving stolen property, a felony, to a misdemeanor. The court found that Heath was not eligible for this redesignation because a prior court restitution order established that the dollar value of the stolen property was greater than the statutory limit for such a misdemeanor. We conclude that, as the People assert, Heath has forfeited his appellate claim that the court acted in excess of its authority by considering this prior order and otherwise has not established that the trial court erred in denying his petition. Therefore, we affirm the trial court’s order. BACKGROUND In March 2012, the Contra Costa County District Attorney charged Heath in a felony complaint with receiving stolen property (Pen. Code, § 496, subd. (a)1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of dihydrocodeinone (id., § 11350, subd. (a)). Heath was alleged to have suffered a prior

1 All statutory references herein are to the Penal Code unless otherwise stated. 1

strike offense (§§ 667, subds. (b)–(i), 1170.12) and a prior serious and violent felony (§ 1170, subds. (f), (h)(3)(A)), and to be probation ineligible (§ 1203, subd. (e)(4)). In October 2012, Heath pleaded no contest to receiving stolen property. The court accepted his plea, dismissed the remaining counts, ordered Heath to serve time in county jail that was deemed to have been completed at the time of sentencing, and placed him on formal probation subject to certain terms and conditions. Subsequently, in February 2013, the court ruled on whether Heath should pay the victim restitution. The court considered the county probation department’s restitution supplemental report, which stated the victim claimed the total value of the property missing and damaged from her home was $1,270. This included “a flat screen TV ($550.00), Coin Collection ($200.00), Leatherjacket ($60.00), Hooded Jacket, GPS Handling Device ($80.00), Samsung Cell Phone ($40.00), numerous items of ladies clothing ($150.00) and missing jewelry valued at $150.00.” The court ordered Heath to pay $1,270 in restitution to the victim. Two years later, in May 2015, Heath filed a petition pursuant to a provision in Proposition 47, the Safe Neighborhoods and Schools Act (Act), specifically section 1170.18, subdivision (a), to have his offense designated as a misdemeanor. Heath did not support his petition with any documentation in support of his request. The court held a very short hearing on Heath’s petition. The court began the hearing by stating, “I have a question as to the value.” The prosecution replied that “in the front of the court file is a restitution order signed by a judge for $1,270 in victim restitution.” Heath’s counsel responded, “I would just ask the Court to grant [Heath’s petition] because in this case it appears there were two co-defendants participating, so that the amount of loss for each individual would be under $950. And I don’t believe there’s any—I believe the sole objection from the prosecution is on the amount of the loss, not on any other category, but that the loss exceeds $950 is their objection.” The court responded, “But it’s fundamental principle of liability that co-participants are jointly and severally liable for the full amount, so I’m going to deny the petition.” The