People v. Perkins

Filed 1/25/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E062878

v. (Super.Ct.No. SWF1102014)

CLAYTON OMAR PERKINS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

Sheila Quinlan, 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, Anthony DaSilva, and Peter Quon,

Jr., Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant, Clayton Omar Perkins, was charged with one felony

count of receiving stolen property (Pen. Code, § 496, subd. (a), count 8), three felony

counts of grand theft of a firearm (Pen. Code § 487, subd. (d)(2), counts 5, 6, 7), two

felony counts of possession of methamphetamine for sale (Health & Saf. Code, § 11378,

counts 1, 11), two felony counts of burglary (Pen. Code, § 459, counts 4, 10), three

misdemeanor counts of resisting a peace officer (Pen. Code, § 148, subd. (a)(1), counts 2,

9, 12), and one misdemeanor count of using a controlled substance (Health & Saf. Code,

§ 11550, subd. (a), count 3).

After a jury found defendant guilty on all counts, he admitted to a prison prior, a

serious felony prior, and a serious or violent prior (§§ 667.5, subd. (b), 667, subds. (a), (c)

& (e)(1), 1170.12, subd. (c)(1)),1 and the trial court imposed an aggregate term of 20

years 8 months in state prison. The trial court sentenced defendant to eight months in

state prison on the receiving stolen property count, running consecutively to the sentences

imposed on the burglary and possession of methamphetamine for sale counts. The trial

court sentenced defendant to two years for each grand theft of a firearm count and stayed

those sentences under section 654 because they arose out of the same events as the

principal first degree burglary offense. Defendant appealed his conviction, and we

affirmed. (People v. Perkins (Nov. 26, 2013, E056063) [nonpub. opn.].)

California voters later passed Proposition 47, which converted receipt of stolen

property and grand theft of a firearm into misdemeanors where the value of the stolen

1 Unlabeled statutory citations refer to the Penal Code.

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property does not exceed $950. (§§ 496, subd. (a), 490.2, subd. (a).) Defendant filed a

form to request resentencing, but the form mistakenly excluded the option of petitioning

for resentencing grand theft offenses. As a result, and contrary to his intention, Perkins’s

petition asked for resentencing on the receiving stolen property conviction alone.

Defendant’s petition stated the requirements for eligibility for resentencing on that

conviction, but attached no evidence, included no declaration, and provided no record

citations to support the factual assertion that the stolen property did not exceed $950 in

value. The superior court denied the petition without holding a hearing on the ground

that the value of the stolen property exceeded $950. The order did not mention the

convictions for grand theft of firearms.

On appeal, defendant contends (i) the superior court erred in denying his petition

for resentencing on the receipt of stolen property conviction because its finding that the

value of the stolen property exceeded $950 was not supported by substantial evidence

and (ii) the superior court erred in failing to consider the petition for resentencing on

defendant’s three convictions for grand theft of a firearm.

We affirm the order denying the petition for resentencing on the receiving stolen

property conviction because defendant did not carry his burden to submit evidence of the

value of the stolen property. We do not reach the putative petition for resentencing on

the grand theft of firearms convictions because defendant did not properly request

resentencing on those convictions. We conclude, however, that defendant may file new

petitions on his convictions for both the receipt of stolen property offense and the theft of

firearms offenses.

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 I

FACTUAL BACKGROUND

On February 28, 2012, prosecutors charged defendant with, among other offenses,

felony receipt of stolen property (§ 496, subd. (a)) and three counts of felony grand theft

of a firearm (§ 487, subd. (d)(2)).

In the receiving stolen property count, the prosecution alleged “on or about

October 28, 2011, in the County of Riverside, State of California, [defendant] did

wilfully and unlawfully receive certain property, to wit, CREDIT CARD BELONGING

TO CHRISTI L., which said property had been obtained by theft, knowing said property

had been so obtained, and did conceal and withhold and aid in concealing and

withholding said property from the owner.” The possession of the credit card was related

to an October 26, 2011 burglary of Christi L.’s home, which prosecutors charged in a

separate case.2 It was also the sole basis for the receipt of stolen property count in the

information and at the pretrial hearing. Prosecutors were permitted to put on testimony

about other items defendant stole from Christi L. for the limited purpose of showing

defendant knew the credit card was stolen. A deputy for the Riverside County Sheriff’s

Department testified law enforcement recovered the credit card with other stolen items

when they engaged defendant in a chase on October 28 and he dropped a black backpack.

At trial, Christi L. identified as stolen items the backpack, two of her credit cards, a

2 We grant the People’s motion and take judicial notice of the record in the
prior appeal challenging defendant’s conviction. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a); Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1503, fn. 3.) These
facts come from that record.

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laptop computer, a piece of jewelry from Tiffany & Co., a Kohl’s gift card, a KMart

rewards card, and all the jewelry and a jewelry box depicted in exhibits 16, 22, 23, and

24. The prosecution argued defendant was guilty of receiving stolen property on the

basis of his possession of Christi L.’s credit card, and the jury found him guilty “as

charged under Count 8”—for receiving the stolen credit card.

In the grand theft of firearms counts, the prosecution alleged “on or about

September 11, 2011, in the County of Riverside, State of California, [defendant] did

wilfully and unlawfully take a certain firearm then and there the personal property of

DAVE S.” Defendant took the handguns during a home burglary for which he was also

convicted. The victim, Dave S., testified at trial that three handguns were stolen from his

home on September 11, 2011—a stainless steel .40-caliber SIG Sauer handgun, a black

.40-caliber SIG Sauer handgun, and a bull barrel .38-caliber Smith & Wesson revolver.

Dave S. testified he paid $1,300 for the stainless steel SIG Sauer handgun, about $900 for

the black SIG Sauer handgun, and $800 for the Smith & Wesson revolver.

After a jury convicted defendant of all charges, the trial court sentenced him to an

aggregate 20 years 8 months in state prison, including eight months for receiving stolen

property and two years for each grand theft of a firearm offense. The trial court ordered

the receiving stolen property count to run consecutively to the sentences for other counts

not at issue in defendant’s petition or this appeal. The trial court stayed the sentences for

firearm theft because they arose out of the same events as the principal burglary count.

On November 4, 2014, after defendant had begun serving his sentence, the voters

of California passed Proposition 47, reducing some felony theft and drug possession

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offenses to misdemeanors. The receipt of stolen property and theft of firearms offenses

for which defendant was convicted are now misdemeanors if the value of the property

stolen in each offense did not exceed $950. (§§ 496, subd. (a), 490.2, subd. (a).) The

initiative also created a resentencing procedure allowing offenders to petition for

resentencing if they are “currently serving a sentence for a conviction” for committing a

felony and “would have been guilty of a misdemeanor under” the provisions added by

Proposition 47. (§ 1170.18, subd. (a).)

On November 25, 2014, defendant filled out a form and submitted it to the

superior court to request resentencing under section 1170.18, subdivision (a). The form

provided checkboxes for the offenses the initiative had reclassified, including a box for

section 496, subdivision (a). However, the form wrongly excluded a checkbox for grand

theft crimes (§ 487) the initiative had reclassified (§ 490.2, subd. (a)). Defendant

checked the box for section 496, subdivision (a), but listed his convictions for grand theft

of firearms on the part of the form for other felony convictions, which informs the

superior court whether defendant’s prior convictions categorically disqualify him from

resentencing. (See 1170.18, subd. (i).) As a result, on its face, defendant’s petition asks

for resentencing on his receiving stolen property conviction but not on his grand theft of

firearms convictions. Defendant’s petition states the value of the stolen property did not

exceed $950. However, he did not identify the stolen property or attach evidence, a

declaration, or include citations to the record of conviction to support the assertion that it

did not exceed $950 in value. On January 2, 2015, the prosecution submitted a form

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response indicating defendant was not entitled to resentencing because the value of the

property exceeded $950. The prosecution’s assertion was similarly unsupported.

On January 2, 2015, the superior court entered an order denying defendant’s

petition. The order states only that defendant has “multiple residential burglaries [¶] 459

1st degrees—11378 HS—496 PC with losses over $950—all not qualifying.” The

superior court did not explain the basis of its finding that the stolen property exceeded

$950 in value.

II

DISCUSSION

A. Petition for Resentencing on Receiving Stolen Property Conviction

Defendant contends the superior court erred in denying his petition by determining

without sufficient evidence that the credit card he was convicted of receiving exceeded

$950 in value.

We review a “[superior] court’s legal conclusions de novo and its findings of fact

for substantial evidence.” (People v. Trinh (2014) 59 Cal.4th 216, 236.) The

interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West

Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) “In interpreting a

voter initiative like [Proposition 47], [the courts] apply the same principles that govern

statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) “‘The fundamental

purpose of statutory construction is to ascertain the intent of the lawmakers so as to

effectuate the purpose of the law. [Citations.]’” (Horwich v. Superior Court (1999) 21

Cal.4th 272, 276.) “In determining intent, we look first to the words themselves.

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[Citations.] When the language is clear and unambiguous, there is no need for

construction. [Citations.] When the language is susceptible of more than one reasonable

interpretation, however, we look to a variety of extrinsic aids, including the ostensible

objects to be achieved, the evils to be remedied, the legislative history, public policy,

contemporaneous administrative construction, and the statutory scheme of which the

statute is a part. [Citations.]” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.)

At the time of defendant’s conviction, the prosecution was permitted to plead and

prove receipt of stolen property as a felony regardless the value of the stolen property.

(People v. Shabazz (2015) 237 Cal.App.4th 303, 308.) As amended by Proposition 47,

section 496, subdivision (a) now specifies that “if the value of the [stolen] property does

not exceed nine hundred fifty dollars ($950), . . . the offense shall be a misdemeanor,

punishable only by imprisonment in a county jail not exceeding one year.” Thus,

defendant would be eligible for resentencing if the value of the stolen property that was

the basis of his conviction under section 496, subdivision (a) did not exceed $950. (See

People v. Shabazz, supra, at p. 308.)

The statute itself is silent as to who has the burden of establishing whether a

petitioner is eligible for resentencing. However, Evidence Code section 500 provides,

“[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the

existence or nonexistence of which is essential to the claim for relief or defense that he is

asserting.” Because defendant is the petitioner seeking relief, and because Proposition 47

does not provide otherwise, “a petitioner for resentencing under Proposition 47 must

establish his or her eligibility for such resentencing.” (People v. Sherow (2015) 239

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Cal.App.4th 875, 878-879 (Sherow); see also People v. Rivas-Colon (2015) 241

Cal.App.4th 444, 449-450; People v. Page (2015) 241 Cal.App.4th 714, 719, fn. 2

[Fourth Dist., Div. Two].) In a successful petition, the offender must set out a case for

eligibility, stating and in some cases showing the offense of conviction has been

reclassified as a misdemeanor and, where the offense of conviction is a theft crime

reclassified based on the value of stolen property, showing the value of the property did

not exceed $950. (Sherow, supra, at pp. 877-878; see also § 1170.18, subd. (a).) The

defendant must attach information or evidence necessary to enable the court to determine

eligibility. (Sherow, supra, at p. 880 [“A proper petition could certainly contain at least

[defendant’s] testimony about the nature of the items taken. If he made the initial

showing the court can take such action as appropriate to grant the petition or permit

further factual determination”].)

Defendant did not meet his burden in this case. Defendant submitted a form that

asserted he was convicted for receipt of stolen property and that the value of the property

did not exceed $950. But he did not indicate anywhere on the form the factual basis of

his claim regarding the value of the stolen property. He did not describe the stolen credit

card that provided the basis for the receiving stolen property count or even indicate that

the credit card was the sole basis for the conviction. He did not address the trial evidence

indicating he also possessed other items along with the credit card, all stolen from the

same victim. Nor did he provide citations to the record of conviction that would have

directed the superior court to such evidence. The petition provided no information

whatsoever on the nature and value of the stolen property to aid the superior court in

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determining whether defendant is eligible for resentencing. As a result, defendant did not

provide the superior court with information that would allow the court to “determine

whether the petitioner satisfies the criteria in subdivision (a).” (§ 1170.18, subd. (b).)

We conclude defendant’s petition did not meet his burden of providing evidence to

establish he is eligible for resentencing on his receiving stolen property conviction.

Our conclusion that defendant must provide some evidence of eligibility when he

files the petition is supported by the language and structure of the statute. Section

1170.18, subdivision (a) permits offenders currently serving sentences for reclassified

offenses to “petition for a recall of sentence” and “request resentencing.” “The statute

does not expressly require the trial court to hold a hearing before considering the

eligibility criteria, nor is there a reference to the taking of ‘evidence’ or other proceeding

that would compel involvement by the parties. The statute simply states: ‘Upon

receiving a petition for recall of sentence under this section, the court shall determine

whether the petitioner satisfies the [eligibility] criteria.’ [Citation.]” (People v. Bradford,

227 Cal.App.4th 1322, 1337 (Bradford) [discussing nearly identical statutory language in

§ 1170.126, subd. (e)].) Thus, the statute appears to assume most petitions can be

resolved based on the filings. We read the statute to fairly imply that in the normal case

the superior court will rule on the basis of the petition and any supporting documentation.

Faced with such a petition, a superior court often will be able to grant or deny

relief without a hearing. The superior court “will be able to summarily deny relief based

on any petition that is facially deficient. Resentencing may be denied based solely on the

fact of a prior conviction of a designated ‘super strike’ or any offense requiring

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registration as a sex offender under section 290(c).” (Couzens & Bigelow, Proposition

47, “The Safe Neighborhoods and Schools Act” (August 2015), p. 37 (Couzens &

Bigelow), at [as of Jan.

22, 2016].) In many cases, a petition will be deficient because the offender seeks

resentencing for a crime that has not been reclassified as a misdemeanor. (E.g., People v.

Page, supra, 241 Cal.App.4th at pp. 718-719 [petition properly denied because offense of

unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) not reclassified as a

misdemeanor by Proposition 47].) In other cases, the superior court may be able to

determine whether a petitioner is eligible for resentencing simply by consulting the

record of conviction or evidence submitted by the parties.

We note the revised form for Proposition 47 petitions indicates the Riverside

County Superior Court will hold an eligibility hearing in any case where the district

attorney contests eligibility and decide whether to grant the petition “at the conclusion of

the hearing.” (See Petition for Resentencing—Application for Reduction to

Misdemeanor, Form RI-CR039 (Application for Reduction), at http://www.riverside.

courts.ca.gov/localfrms/ri-cr039.pdf> [as of Jan. 22, 2016].) Nothing in our opinion

should be read to disapprove the superior court’s stated procedure. We recognize

Proposition 47 has imposed a substantial, if temporary, burden on the courts. Superior

courts have inherent authority to adopt procedures needed to exercise jurisdiction as well

as to manage and control their dockets. (Code Civ. Proc., §§ 187, 128, subd. (a); Sole

Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) We hold only that

the statute required defendant to include information supporting his petition with his

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initial filing. Since he did not do so, we cannot conclude the superior court erred in

summarily denying his petition.3

Defendant argues that Bradford, supra, 227 Cal.App.4th at page 1341, establishes

that his petition was sufficient to require that the court hold a hearing on the value of the

stolen property. We disagree. In Bradford, the superior court referred to the record of

conviction, found evidence that defendant had possessed wire cutters during the

commission of the crime, and concluded—without input from the parties—that wire

cutters constitute a dangerous weapon, making petitioner ineligible for resentencing.

(Ibid.) The Bradford court held that if “the matter of eligibility concerns facts that were

not actually adjudicated at the time of the petitioner’s original conviction (as here), the

trial court should invite further briefing by the parties before finding the petitioner

ineligible for resentencing.” (Ibid.) In this case, defendant’s petition was not sufficiently

supported to create a dispute requiring the court to seek additional input from the parties.

The outcome may have been different if defendant had stated a prima facie case for

resentencing and supported his case with evidence or information. If the evidence were

sufficient to create a dispute, it would be appropriate for the superior court to allow

parties to address the disputed issue at a later qualification hearing. (See Couzens &

Bigelow, supra, at p. 38 (“[I]t may not be possible from a review of the record alone to

determine the value of property taken.”).)

3 The form defendant used to apply for resentencing included the same
assurance, so it may be the superior court does not in fact grant hearings in every case in
which the district attorney opposes a petition.

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 We are aware that defendant challenges the superior court’s order denying his

petition on the ground that the court found the stolen property exceeded $950 on the basis

of insufficient evidence. We agree the superior court’s order purported to resolve the

factual issue and that the record on appeal indicates the court’s unexplained finding was

not supported by substantial evidence. However, on 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, as mod. (Oct. 21, 2014), review

den. (Jan. 21, 2015) [“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.]”], alteration in

orig.) “‘[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, alteration in

orig.) As we have discussed, this record establishes the failure of evidence began with

defendant’s petition. That deficiency warrants affirming the superior court’s order.4

4 Defendant contends he was entitled to be represented by appointed counsel
in proceedings related to his petition. We do not agree every offender is entitled to
assistance of counsel in preparing a petition for resentencing. (See Couzens & Bigelow,
supra, at p. 69.) In any event, the record indicates defendant submitted his petition
without requesting appointment of counsel to assist in preparing the petition. We take no
position on whether the superior court must appoint counsel to represent a petitioner at an
eligibility hearing.

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 We recognize, however, that defendant may have been misled about the

requirements of petitioning for relief under Proposition 47. Though Evidence Code

section 500 establishes petitioners have the burden of establishing eligibility, Proposition

47 itself is silent on the point and the courts had not made the connection explicit until

after defendant had filed his petition. Moreover, Proposition 47 is silent as to the

submission of evidence or information to support an application for resentencing. In

addition, the form defendant used to petition includes no space for and no directions to

include evidence or information regarding the value of stolen property. Even the revised

form the superior court now provides omits any discussion or directions about submitting

evidence. (See Application for Reduction, supra, at pp. 1-2.) In short, when defendant

filed his petition, the ground rules were unsettled. For that reason, we follow the court in

Sherow in affirming the order denying the petition “without prejudice to subsequent

consideration of a properly filed petition.” (Sherow, supra, 239 Cal.App.4th at p. 881.)

In any new petition, defendant should describe the stolen property and attach some

evidence, whether a declaration, court documents, record citations, or other probative

evidence showing he is eligible for relief.5

5 We recognize the Third District Court of Appeal held evidence submitted at
a resentencing hearing under the Three Strike Reform Act must be from the record of
conviction. (Bradford, supra, 227 Cal.App.4th at pp. 1339-1340.) However, eligibility
for resentencing under that statute turns on the nature of the petitioner’s convictions—
whether an offender is serving a sentence on a conviction for nonserious, nonviolent
offenses and whether he or she has prior disqualifying convictions for certain other
defined offenses. (§ 1170.126, subd. (e).) By contrast, under Proposition 47, eligibility
often turns on the simple factual question of the value of the stolen property. In most
such cases, the value of the property was not important at the time of conviction, so the
[footnote continued on next page]

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 The People argue we should affirm the superior court’s order on the basis that the

trial record establishes defendant was in possession of items other than the stolen credit

card and those items exceeded $950 in value. We cannot affirm on that basis. Defendant

was prosecuted separately for burglary of the other items and the trial court allowed

testimony about those thefts only to establish defendant knew the credit card he had in his

possession was stolen. In this case, defendant seeks resentencing on his conviction for

possession of stolen property, a conviction that was based entirely on his possession of

Christi L.’s credit card. Thus, under the Proposition 47 petitioning procedure, had

defendant submitted a supported petition, the superior court would have been required to

determine whether the credit card exceeded or fell short of $950 in value. (§§ 1170.18,

subds. (a), (b), 490.2, subd. (a).) Evidence related to the other stolen property defendant

had in his possession is irrelevant to that determination. Even if it were not, we do not

have sufficient information to make a determination of value. Among other deficiencies

in the evidence, we do not have the photographic exhibits showing many of the stolen

items, which are inadequately described in testimony. Accordingly, we decline to affirm

on that basis.

[footnote continued from previous page]
record may not contain sufficient evidence to determine its value. For that reason, and
because petitioner bears the burden on the issue (Evid. Code, § 500), we do not believe
the Bradford court’s reasons for limiting evidence to the record of conviction are
applicable in Proposition 47 cases. That does not mean there will be a mini-trial on the
value of stolen property in every case, only that offenders may submit extra-record
evidence probative of the value when they file their petitions for resentencing. (Sherow,
supra, 239 Cal.App.4th at p. 880 [“A proper petition could certainly contain at least
Sherow’s testimony about the nature of the items taken”].)

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 B. Petition for Resentencing of Grand Theft of Firearms Convictions

Defendant contends the superior court erred by failing to address his petition for

resentencing on his three convictions for grand theft of firearms. We do not conclude

that the superior court erred. However, it is clear that the old form provided to enable

offenders to petition for resentencing under section 1170.18, subdivision (a) was itself

erroneous. The form omitted grand theft convictions under section 487 that Proposition

47 has reclassified as misdemeanors.6

Defendant was convicted of three counts under section 487, subdivision (d)(2),

which makes it a grand theft to steal a firearm. Proposition 47 added a new provision,

section 490.2, subdivision (a), which reclassifies felony section 487, subdivision (d)(2)

grand theft violations into misdemeanors “where the value of the . . . property taken does

not exceed nine hundred fifty dollars ($950).” Thus, petitioner would be entitled to

resentencing on each conviction, provided he can meet his burden of showing, separately

for each firearm, that its value does not exceed $950. The victim of defendant’s theft

testified defendant stole a black .40-caliber SIG Sauer handgun and a bull barrel .38-

caliber Smith & Wesson revolver for which he paid $900 and $800, respectively. He also

testified defendant stole a stainless steel .40-caliber SIG Sauer handgun for which he paid

$1300. Thus, the record of conviction shows defendant may be able to make out a prima

facie case for resentencing on two of his three theft of firearms convictions.

6 The superior court’s new form includes section 487. (See Application for
Reduction, supra, at p. 1.)

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 However, defendant’s petition did not properly request resentencing under section

490.2, subdivision (a). The omission is the fault of the form, rather than defendant. The

People concede the proper remedy is to permit defendant to file a new petition that seeks

resentencing on the theft of a firearm counts. We agree. In any new petition, defendant

should describe the stolen property and attach some evidence, whether a declaration,

court documents, record citations, or other probative evidence showing, for each

conviction, that the stolen firearm did not exceed $950 in value.

III

DISPOSITION

We affirm the order denying defendant’s petition for resentencing of his

conviction for receipt of stolen property without prejudice to consideration of a

subsequent petition that supplies evidence of his eligibility.

CERTIFIED FOR PUBLICATION

RAMIREZ
P. J.

We concur:

McKINSTER
J.

CODRINGTON
J.

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