People v. Foster CA5

Filed 9/16/16 P. v. Foster CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F072399 Plaintiff and Respondent, (Fresno Super. Ct. Nos. 400007-1, v. 460004-5 & CF92460004)

RICKY TYRONE FOSTER, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Detjen, J. and Franson, J.

Appellant Richard Tyrone Foster appeals from the denial of his application to have his prior felony conviction for receiving stolen property (former Pen. Code, § 496.1)1 deemed a misdemeanor under section 1170.18.2 Appellant contends the court failed to adequately consider whether the value of the stolen property received was less than $950 and wrongly dismissed the application with prejudice. For the reasons set forth below, we affirm the denial of appellant’s application but reverse the dismissal with prejudice. FACTUAL AND PROCEDURAL BACKGROUND On October 4, 1989, appellant was convicted of possessing and selling stolen property under former section 496.1. It had been alleged appellant possessed at least one stolen firearm. He was sentenced to four years in prison and has completed that sentence. On December 29, 2014, following the enactment of Proposition 47, appellant filed a “Petition for Dismissal” seeking to have his conviction reduced to a misdemeanor. Appellant attached a declaration explaining his request and followed up with a request for a ruling on April 20, 2015. On April 23, 2015, appellant’s request was denied with prejudice, without a hearing. The court concluded that appellant was “ineligible for relief as his or her conviction(s) do not qualify for relief under Penal Code § 1170.18, subd. (a) or subd. (f).” This appeal timely followed. DISCUSSION In this matter, the People do not contest that a prior conviction under former section 496.1 is eligible for relief under Proposition 47. Rather, they argue that appellant failed to satisfy his burden of demonstrating he “would have been guilty of a