People v. Hughes CA4/2

Filed 11/20/20 P. v. Hughes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073006

v. (Super.Ct.No. FSB1401940)

MATTHEW HUGHES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick

and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

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 PROCEDURAL HISTORY

On April 23, 2014, a felony complaint charged defendant and appellant Matthew

Hughes with unlawfully driving and taking a vehicle under Vehicle Code section 10851,

subdivision (a) (section 10851) (count 1); receiving stolen property under Penal Code1

section 496d, subdivision (a) (count 2); and possession of a controlled substance under

Health and Safety Code section 11377, subdivision (a) (count 3). The complaint also

alleged that defendant committed counts 1 and 2 for the benefit of, at the direction of, or

in association with a criminal street gang under Penal Code section 186.22, subdivision

(b)(1)(A). Furthermore, the complaint alleged that defendant had two prior convictions

for first degree burglary under Penal Code section 459 and one prior conviction for

attempted robbery under Penal Code sections 664 and 211, pursuant to Penal Code

sections 667, subdivisions (b), through (i) and 1170.12.

On June 27, 2014, defendant pled guilty to count 1, and admitted the gang

enhancement and two prior convictions. The trial court dismissed counts 2 and 3 per the

People’s motion. The court then sentenced defendant to a total term of 20 years in

prison.

On February 25, 2015, on our own motion, we dismissed defendant’s appeal

“because the appeal [was] from a conviction based on a guilty plea and defendant only

challenge[d] the validity of his plea, and the certificate of probable cause was denied

August 18, 2014.”

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

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 On November 26, 2014, while the appeal from defendant’s conviction was still

pending, defendant petitioned the trial court to have his felony conviction reduced to a

misdemeanor pursuant to Proposition 47. On December 19, 2014, the trial court denied

the petition. (People v. Hughes (June 15, 2016, E062841) [nonpub. opn.] at p. 2,

hereinafter Prior Opinion.)2

On December 5, 2016, defendant filed a new petition for resentencing under

Proposition 47 and on March 10, 2017, defendant filed a new petition for resentencing

under section 1170.1. On April 19, 2019, following an evidentiary hearing, the trial court

denied defendant’s motion to reduce his conviction to a misdemeanor under section

1170.18 because defendant had failed to present evidence to demonstrate that the value of

the vehicle in question was under $950.

On June 14, 2019, defendant filed a timely notice of appeal.

DISCUSSION

A. THE TRIAL COURT PROPERLY DENIED DEFENDANT’S

PROPOSITION 47 PETITION BECAUSE DEFENDANT FAILED TO

MEET HIS BURDEN THAT THE VALUE OF THE VEHICLE WAS

UNDER $950

Defendant contends that the trial court’s order denying his petition for

resentencing should be reversed “because judicial estoppel prevented the People’s use at

the Proposition 47 hearing of a KBB [Kelly Blue Book] page and various car sales

2 On November 5, 2019, we granted defendant’s request to take judicial notice of
the Prior Opinion.

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publications which the People successfully objected to appellant using in his first

appeal.” (All caps. omitted.)

1. LEGAL HISTORY

“ ‘ “ ‘ “Judicial estopped precludes a party from gaining an advantage by taking

one position, and then seeking a second advantage by taking an incompatible position.

[Citations.] The doctrine’s dual goals are to maintain the integrity of the judicial system

and to protect parties from opponents’ unfair strategies. [Citation.] Application of the

doctrine is ‘discretionary.” ’ [Citation.] The doctrine applies when ‘(1) the same party

has taken two positions; (2) the positions were taken in judicial or quasi-judicial

administrative proceedings; (3) the party was successful in asserting the first position

(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are

totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,

or mistake.’ ” ’ ” (People v. Palmer (2013) 58 Cal.4th 110, 116-117.)

2. FACTUAL HISTORY

After the denial of defendant’s first petition for resentencing, he appealed. In the

appeal, defendant moved our court to judicially notice a page from a police report and a

printout from KBB.com. The People opposed defendant’s motion.3 On June 16, 2016,

we agreed with the People’s position that defendant had failed to explain “ ‘how the

Kelly Blue Book site is a “source of reasonably indisputable accuracy,” ’ ” and “ ‘ “not

3 Pursuant to the People’s motion for judicial notice, we take judicial notice of
defendant’s motion for judicial notice and the People’s opposition to the motion in the
prior appeal, case No. E062841.

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reasonably subject to dispute.” ’ ” We then went on to state that even if we were to take

judicial notice of the KBB printout, it would be improper for us to use the evidence to

determine the value of the vehicle on appeal because it was defendant’s burden to

establish eligibility for relief in the trial court. We denied defendant’s request for judicial

notice and affirmed the trial court’s order denying defendant’s petition.

On December 5, 2016, defendant filed a new petition for resentencing under

Proposition 47 in pro. per. Defendant attached a declaration from “appellate counsel in

support of valuation of 1992 Honda” (all caps. omitted) dated February 8, 2016. This

declaration was initially attached to defendant’s request for judicial notice filed in the

appeal from the first motion to resentence in case No. E062841.

On March 10, 2017, after defendant was appointed counsel, defendant filed a new

petition for resentencing. The petition alleged that the value of the vehicle taken was less

than $950. Defendant attached printouts from KBB to establish the value of the 1992

Honda Accord.

At the evidentiary hearing on the petition, a defense investigator, Joseph Morrison,

opined that the depreciated value of the Honda was $495.39. He based his opinion on a

website called Omni, which calculated the value based on the purchase price of the car

with 10 years’ depreciation.

On cross-examination, when asked about the KBB printout, Morrison stated that

he was familiar with the KBB website but did not use it to form his opinion for this case.

When the prosecutor offered to show Morrison the KBB printout, defense counsel

objected on the grounds that there was no evidence that KBB was a reliable source for

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valuation. Counsel stated, “my objection is that was raised before the Court of Appeal

and the Court of Appeal and Attorney General—I mean the Court of Appeal addressed

that point as to whether Kelly Blue Book—I don’t think there’s been any evidence being

introduced at this time that Kelley Blue Book is a reliable resource for determining the

valuation of vehicles.” In response, the trial court noted that there has been no evidence

presented that the Omni website was also reliable. The court then went on to state, “The

objection is overruled. I think the objection goes more to the weight than admissibility.

Certainly, Kelley Blue Book is not determinative, but I think it is evidence that the Court

can consider along with any other evidence in determining the valuation. So the

objection is overruled.”

After questioning resumed, Morrison admitted that he had looked at the KBB.com

website and looked at the valuation of the Honda. He, however, did not include that

information in his report. Morrison acknowledged that the KBB printout provided a

valuation for the 1992 Honda Accord sedan with 200,000 miles to be between $956 to

$2,243. He opined that the information from the Omni site was more accurate. The

prosecutor then showed Morrison printouts of recent sales from a website called Car

Gurus that showed similar vehicles for sale for $1,695 and $1,998.

The trial court then asked Morrison if he arrived at that valuation solely based on

the purchase price in 1992 with a depreciation calculator, and did not differentiate

between makes and models of cars. When Morrison replied, “Yes, sir,” the court

clarified the question: “So it wouldn’t matter if it was a Honda or a Buick or Hyundai,

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it’s just going by manufacturer-suggested retail price new in 1992 was 16,900, current

depreciated value is whatever it is?” Morrison responded, “That’s correct.”

After the presentation of evidence and argument by counsel, the trial court made

the following findings regarding the valuation of the Honda:

“That then brings us to the issue of valuation of the vehicle. The Court of

Appeal’s opinion did point out that it is the defendant’s burden to be able to demonstrate

that the value of the vehicle was below $950.00. So the defense has offered evidence

from a website, Omni, which is a generic depreciation. So any 1992 vehicle that had a

manufacturer’s suggested retail price, new in 1992, of 16,900 would have a depreciated

value of, approximately, $495.00 when that was done either in 2002 or 2012. I’m not

sure what year that was done. At any rate, before 2014.

“I think the Court can take judicial notice of the fact that different models of cars

have different values and hold their values differently. If we were to go out and look and

try to find 1992 vehicles, and we looked at Hondas, Buicks, Hyundais, you know, five or

six different makes and models of cars, we would find substantially different values.

“So I don’t think a generic depreciation . . . is convincing evidence of the actual

value of a particular vehicle. You would have to have more specific information as to the

make and model, the mileage, and the condition of the vehicle. We don’t have evidence

of the condition of the vehicle here. It may be in pristine condition, or it may have been

really beat up. We don’t know.

“The best indicator of the value of any used item is market price, what’s it actually

selling for. You can have a Kelley Blue Book valuation, you can have some other

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valuation, but that is just a very general guide. The real value is what can you actually

buy that vehicle for in the real world? We have some indication of that with the listing of

similar vehicles in the 1600 to—almost 1700 to $2,000.00 range in 2019, that gives you a

general idea.”

The court then went on to state that “looking at the totality of the evidence, the

Court finds that the defense has not presented convincing evidence to demonstrate the

value of this particular vehicle in 2014 was under $950.00. From the evidence that we do

have, it appears to the Court that it is more likely than not that the vehicle in question

here, the 1992 Honda Accord LX with 250,000 miles on it, was worth more than $950.00

in 2014. So for those reasons, the motion to reduce the conviction to a misdemeanor and

resentence the defendant pursuant to . . . Penal Code section 1170.18 is denied.”

3. ANALYSIS

In this case, defendant contends that the trial court’s order denying his petition

should be reversed because the prosecutor had argued inconsistent positions regarding the

admissibility of KBB valuations. Defendant stated: “The People want to eat their cake

and have it too with the position that appellant could not use the favorable KBB

evaluation in the Court of Appeal because it was unreliable but could use the same KBB

valuations in the trial court to deny appellant his proposition 47 eligibility as to valuation

being $950 or less.”

We need not address defendant’s judicial estopped argument because, even if the

prosecutor were judicially estopped, a review of the reporter’s transcript from the hearing

shows the trial court found that defendant had failed to meet his burden, as required under

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Proposition 47. As noted ante, Morrison admitted that he used the purchase price of the

Honda and calculated the depreciation to arrive at the current value of the Honda.

Morrison admitted that he used the depreciation calculation on the Omni website—and

the calculation did not take into consideration the make, model, mileage or condition of

the vehicle. The court therefore stated, “So I don’t think a generic depreciation value is

convincing evidence of the actual value of a particular vehicle. You would have to have

more specific information as to the make and model, the mileage, and the condition of the

vehicle. We don’t have evidence of the condition of the vehicle here. It may be in

pristine condition, or it may have been really beat up. We don’t know.” The court then

went on and mentioned the KBB valuations with which the prosecutor cross-examined

Morrison as a way to impeach Morrison, and not for the truth of the matter asserted. The

court did not rely on the KBB valuations to make its ruling. The court’s ruling was based

on defendant’s inability to provide solid evidence that the Honda was worth less than

$950. Based on the court’s thorough questioning of the expert witness and analysis of the

estimate for the vehicle, we discern no abuse of discretion by the trial court.

Therefore, even if the prosecutor were judicially estopped from cross-examining

Morrison using the KBB valuations, the trial court’s ruling on defendant’s motion stands

because the trial court found that defendant had failed to meet its burden of proving that

the Honda was valued at less than $950. The court did not rely on the KBB valuations to

make this finding.

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 B. SENATE BILL NO. 1393 DOES NOT APPLY

Defendant contends that, in light of Senate Bill No. 1393, the matter must be

remanded for resentencing so the trial court may exercise its discretion to dismiss his

five-year serious felony conviction enhancement. (§ 667, subd. (a).) Defendant claims

Senate Bill No. 1393 applies retroactively to all cases or judgments of conviction in

which a five-year term was imposed at sentencing, based on a prior serious felony

conviction, provided the judgment was not final when Senate Bill No. 1393 became

effective on January 1, 2019. The People argue that Senate Bill No. 1393 does not apply

because defendant’s judgment was final by January 1, 2019. For the reasons set forth

below, we agree with the People.

On September 30, 2018, the Governor signed Senate Bill No. 1393 which,

effective January 1, 2019, amended sections 667, subdivision (a), and 1385, subdivision

(b), to give courts discretion to dismiss or strike a prior serious felony conviction for

sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.)

Under In re Estrada (1965) 63 Cal.2d 740, “[w]hen the Legislature has amended a

statute to reduce the punishment for a particular criminal offense, we will assume, absent

evidence to the contrary, that the Legislature intended the amended statute to apply to all

defendants whose judgments are not yet final on the statute’s operative date.” (People v.

Brown (2012) 54 Cal.4th 314, 323, fn. omitted.) Since nothing in Senate Bill No. 1393

suggests a legislative intent that the amendments apply prospectively only, “it is

appropriate to infer, as a matter of statutory construction, that the Legislature intended

[Senate Bill No.] 1393 to apply to all cases to which it could constitutionally be applied,

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that is, to all cases not yet final when [Senate Bill No.] 1393 becomes effective on

January 1, 2019.” (People v. Garcia, supra, 28 Cal.App.5th at p. 973.)

A judgment is final ‘ “where the judgment of conviction was rendered, the

availability of appeal exhausted, and the time for petition for certiorari had elapsed.’ ”

(People v. Kemp (1974) 10 Cal.3rd 611, 614.) The time to file a petition for a writ of

certiorari in the United States Supreme Court is 90 days after judgment is entered by a

state court of last resort or discretionary review is denied by a state court of last resort.4

In this case, after defendant appealed the underlying judgment in this case, on

February 25, 2015, we dismissed defendant’s appeal “because the appeal [was] from a

conviction based on a guilty plea and only challenge[d] the validity of the plea, and the

certificate of probable cause was denied August 18, 2014.” This decision became final

on March 25, 2015. (Cal. Rules of Court, rule 8.366(b)(1).) Defendant did not file a

petition for review with the California Supreme Court. The conviction, therefore,

became final 10 days later, on April 4, 2015. (See Bay Development, Ltd. V. Superior

Court (1990) 50 Cal.3rd 1012, 1023 [party seeking California Supreme Court review

must file petition for review within 10 days after Court of Appeal decision becomes final;

Cal. Rules of Court, rule 8.500(e)(1).) Because defendant’s conviction and sentence

became final at the time Senate Bill No. 1393 took effect, the statute does not apply

retroactively.

4 United States Supreme Court Rule 13.1
(as of November 19,
2020).

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 Defendant, however, contends that his conviction was not yet final on appeal

because “this case is not final because appellant is in the process of asserting his statutory

right to proposition 47 relief through appeal.” Here, defendant filed his original petition

for rehearing on November 26, 2014, which was denied. Thereafter, he filed an in pro.

per. petition for resentencing under Proposition 47 on December 5, 2016, and a new

petition on March 10, 2017, represented by counsel. The hearing on the last petition was

held on April 19, 2019, wherein the court denied defendant’s petition.

As noted above, under Proposition 47, “[a] person who, on November 5, 2014,

was serving a sentence for a conviction, . . . of a felony or felonies who would have been

guilty of a misdemeanor under the act . . . had this act been in effect at the time of the

offense may petition for a recall of sentence . . . to request resentencing.” (§ 1170.18,

subd. (a).) Similarly, Proposition 36, provides that “[a]ny person serving an

indeterminate term of life imprisonment . . . may file a petition for a recall of sentence . . .

to request resentencing.” (§ 1170.126, subd. (b).)

In People v. Hubbard (2018) 27 Cal.App.5th 9 (Hubbard), which involved

resentencing under Proposition 36, the court addressed a similar issue. In that case, the

defendant was convicted of attempted robbery and felony reckless evasion and sentenced

to a “Three Strikes” term as to both counts in 1996. (Id. at p. 11.) In 1999, the Hubbard

court affirmed his conviction. (Ibid.) In 2012, the trial court denied the defendant’s

petition for resentencing under section 1170.126, because he was also serving a Three

Strikes sentence for a disqualifying serious felony, the attempted robbery count. The

Hubbard court affirmed. (Hubbard, at p. 11.) The California Supreme Court granted

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review and remanded the matter for reconsideration of resentencing on the reckless

evasion count. The Hubbard court reversed and remanded for a determination as to

whether the defendant presented “ ‘an unreasonable risk of danger to the public if

resentenced.’ ” (Ibid.)

On remand, the defendant argued that he was also entitled to discretionary relief

under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

(Hubbard, supra, 27 Cal.App.5th at p. 11.) The prosecutor conceded that the defendant

was not an unreasonable risk of danger to the public and that he was not ineligible for

resentencing on the reckless evasion count. (Ibid.) But the prosecutor opposed the

Romero motion and argued that the trial court had previously denied the motion. The

prosecutor also argued that the trial court lacked jurisdiction to reconsider all of its

sentencing choices. (Hubbard, at p. 11.) The trial court found that the defendant was

eligible for resentencing on the reckless evasion count, but concluded it lacked

jurisdiction to resentence the defendant as to the attempted robbery count. (Id. at p. 12.)

The Hubbard court concluded that “ ‘ “[w]hen a case is remanded for

resentencing by an appellate court, the trial court is entitled to consider the entire

sentencing scheme. Not limited to merely striking illegal portions, the trial court may

reconsider all sentencing choices.’ ” ’ (Hubbard, supra, 27 Cal.App.5th at p. 13, italics

added.) The Hubbard court also noted that our Supreme Court cited the “ ‘full

resentencing rule’ ” with approval in People v. Buycks (2018) 5 Cal.5th 857, 893-895 “in

determining that, when a person is eligible for resentencing under section 1170.18,

subdivision (a), the trial court must ‘resentence the defendant generally and must

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therefore reevaluate the continued applicability of any enhancement based on a prior

felony conviction.’ ” (Hubbard, at p. 13.)

The case before us is similar to Hubbard, but with one important difference. Here,

after the judgment of conviction was affirmed, defendant filed several petitions to

resentence defendant. In this case—none of defendant’s petitions were granted and the

trial court never resentenced defendant. And on this appeal, as explained ante, we affirm

the trial court’s order denying defendant’s petition and there is no remand for the trial

court to resentence defendant. Therefore, the judgment was final when Senate Bill No.

1393 went into effect in January 2019 and does not apply to defendant retroactively.5

5 On the morning of oral argument, defense counsel submitted a newly published
opinion, People v. Lopez (Oct. 29, 2020) 2020 Cal.App.LEXIS 1026, to our court. In
Lopez, the defendant was convicted in criminal court in 2009 for murder and related
charges based on his actions as a minor. (Id. at p. *1.) Ten years later, in 2019, the trial
court recalled the defendant’s sentence and resentenced him under section 1170,
subdivision (d), to correct the original sentence in light of an intervening Supreme Court
decision. Prior to the resentencing, the defendant moved to have a juvenile court hold a
transfer hearing based on Proposition 57, which was enacted in 2016 and changed the law
regarding the prosecution of minors in adult court. (Ibid.) “The trial court denied the
motion concluding that Proposition 57 did not apply to the defendant, despite the
resentencing, because his original sentence became final long before Proposition 57 took
effect.” (Id. at pp. *1-*2.) On appeal, the defendant contended that “[a]lthough the
judgment in his criminal case became final in 2010 after the decision by a prior panel of
[the] court, defendant contend[ed] he [was] eligible for the benefit of Proposition 57”
under a holding that Proposition 57 applied to any case that was not yet final. (Id. at p.
*5.) The First Appellate District, Division Four, agreed with the defendant and held that
the trial court erred in denying the defendant’s motion. The court stated, “Applying [the
conclusion of People v. Superior Court (Lara) (2018) 4 Cal. 5th 299, 299,] that
Proposition 57 applies retroactively to any judgment that is not final to defendant’s new
sentence, we conclude the new sentence is not final and so [the defendant] is entitled to a
retroactive transfer hearing in juvenile court.” (Id. at p. *13.) As discussed in oral
argument, the facts in Lopez are distinguishable from the facts in this case; hence, Lopez
is not applicable to this case. First, unlike Lopez, defendant’s sentence was never

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 DISPOSITION

The trial court’s order denying defendant’s petition under Proposition 47 is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

FIELDS
J.

recalled, and defendant was not resentenced. Moreover, defendant filed his motion for
resentencing after his original sentence—which was never changed—became final.
Therefore, just because defendant filed a petition for resentencing does not mean that his
case became reopened for finality purposes. As we stated, if we allowed this logic, all
that a defendant would have to do to reopen his or her case would be to file a petition for
resentencing. That would lead to absurd results.

In Lopez, the First Appellate District, Division Four, recognized that there is a split
in authority “on issues similar to those defendant raises here, and the California Supreme
Court has granted review in both matters.” (People v. Lopez, supra, 2020
Cal.App.LEXIS 1026 at p. *6, citing People v. Padilla (2020) 50 Cal.App.5th 244,
review granted August 26, 2020, S263375 and People v. Federico (2020) 59 Cal.App.5th
318, review granted August 26, 2020, S263082.) In Padilla, the court “held that a
defendant resentenced after a successful petition for a writ of habeas corpus after
Proposition 57 became effective was entitled to a retroactive transfer hearing in juvenile
court.” (Lopez, at p. *6, citing Padilla, at p. 247.) In Federico, the court “held that a trial
court properly denied a defendant’s request for a retroactive juvenile transfer hearing
when the defendant was resentenced under section 1170, subdivision (d)(1) after pleading
guilty to charges based on conduct committed when he was 15.” (Lopez, at p. *6, citing
Federico, at p. 328.) In Lopez, the court disagreed with Federico and found Padilla
persuasive.

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