Filed 2/16/21 P. v. Jones CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C091645
Plaintiff and Respondent, (Super. Ct. No.
SCR0001197B)
v.
MICHAEL LORENZO JONES,
Defendant and Appellant.
Defendant, Michael Lorenzo Jones, appeals the trial court’s denial without
prejudice of his petition for resentencing under Penal Code section 1170.18, subdivisions
(f) and (g). (Statutory section references that follow are to the Penal Code unless
otherwise stated.) Defendant argues the trial court erred in determining that he had not
established a prima facie case for relief. As we shall explain, we affirm the lower court’s
order denying defendant’s petition without prejudice to defendant filing a new petition
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presenting evidence that establishes the stolen property he received and its fair market
value.
FACTS AND PROCEDURAL HISTORY
The People’s June 1994 information charged defendant with grand theft exceeding
$400 (§ 487, subd. (1); count one); receiving stolen property (§ 496; count two);
possession of a stolen credit card (§ 484, subd. (e)(4); count three); and giving false
information to a law enforcement officer (§ 148.9, subd. (a); count four). The
information also alleged that defendant had suffered three prior prison terms (§ 667.5,
subd. (b)) and had suffered a prior strike conviction (§ 667, subds. (d) and (e)).
Defendant pleaded guilty to count four and the remaining charges were tried to a
jury. During jury deliberations and in light of the jury’s communication that it was
unable to reach a verdict on the charge of grand theft, the parties reached an agreement to
settle the case. Defendant pleaded guilty to possession of stolen property in violation of
section 496 and admitted suffering one prior prison term. In exchange, defendant was to
receive probation with a suspended prison sentence and the balance of the charges and
allegations would be dismissed. The stipulated factual basis for the plea was the trial
transcript and police reports in the matter. Defendant further affirmed he “was in
possession of stolen property. The only thing that I was -- only thing I was with was
stolen.” On September 19, 1994, defendant was sentenced in accordance with his plea,
and it does not appear that he appealed that judgment.
On January 3, 2020, defendant filed a form petition to reduce his crime to a
misdemeanor pursuant to section 1170.18, subdivisions (f) and (g) and based on the fact
that a violation of section 496 under current law is a misdemeanor if the value of the
property received does not exceed $950. The People filed a form opposition to this
petition on January 15, 2020, checking the box that defendant’s offense was not eligible
for relief. The court appointed an attorney to represent defendant.
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At the first hearing on the matter on February 13, 2020, the parties examined the
court record for evidence concerning the value of the stolen property. Defendant
thereafter argued that the court file showed that the jury hung on the value of the property
stolen in the grand theft count, that in 1994 the threshold for grand theft was $400, and
that therefore, the jury could not find the value of the stolen items was more than $400
such that defendant’s petition for resentencing on the receiving stolen property count
should be granted. The People concurred that the record established the jury could not
decide on the value of the stolen property, but argued this did not affirmatively establish
that the jury had determined the value of what was stolen was below $950. The court
stated it would review the court record itself and set the matter for further hearing.
The matter was heard again on February 27, 2020, wherein the parties restated
their previous positions, and the court denied the petition without prejudice after
determining defendant had presented insufficient evidence to establish he was entitled to
relief. Defendant timely appealed.
DISCUSSION
I
The Value of the Stolen Property
Defendant argues the trial court erred in determining that he had not established a
prima facie case for relief. We disagree. As we shall explain, defendant has not
established the specific stolen items he actually received, nor the fair market value for
those items. As such, he has not established that the fair market value of the stolen
property he received was less than $950.
A. Proposition 47
“Proposition 47, as approved by voters in November 2014, amended various
provisions of the Penal and Health and Safety Codes to reduce personal possession drug
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offenses and thefts involving less than $950 from a straight felony or a ‘wobbler,’ to a
straight misdemeanor.” (Caretto v. Superior Court (2018) 28 Cal.App.5th 909, 915
(Caretto).) Included among the provisions was a mechanism by which individuals who
had already completed their sentence of conviction could petition to have their conviction
reclassified as misdemeanors.
Section 1170.18 provides in pertinent part: “(f) A person who has completed his
or her sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court that entered the
judgment of conviction in his or her case to have the felony conviction or convictions
designated as misdemeanors. [¶] (g) If the application satisfies the criteria in subdivision
(f), the court shall designate the felony offense or offenses as a misdemeanor.”
“Section 496 was amended by Proposition 47, and provides in relevant part:
‘Every person who buys or receives any property that has been stolen or that has been
obtained in any manner constituting theft or extortion, knowing the property to be so
stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or
withholding any property from the owner, knowing the property to be so stolen or
obtained, shall be punished by imprisonment in a county jail for not more than one year,
or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of
the 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 . . . .’ (§ 496, subd. (a).)” (Caretto, supra, 28 Cal.App.5th at pp. 915-916.)
We measure the value of a stolen item for purposes of Proposition 47 by
determining the fair market value of that item. (See People v. Romanowski (2017)
2 Cal.5th 903, 914-915 (Romanowski) [requiring valuation of stolen access card
information using the fair market value test]; see also Caretto, supra, 28 Cal.App.5th at
pp. 912, 918-919, 921 [applying Romanowski’s fair market value test to a conviction for
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receipt of stolen property and remanding to allow the parties to present evidence relevant
to that test].) It is a defendant who “bears the ‘ultimate burden’ of demonstrating, by a
preponderance of the evidence, that she [or he] is eligible for Proposition 47 relief.”
(People v. Liu (2019) 8 Cal.5th 253, 263 (Liu).)
B. Application
A logical and necessary prerequisite to determining the value of the stolen
property received is knowledge of what the property was that was received. (See, e.g.,
People v. Johnson (2016) 1 Cal.App.5th 953, 970 [advising a “petitioning 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’ ”].)
Here, there is no evidence specifically identifying the stolen property defendant
received. Defendant’s petition did not identify that property and no evidence outside of
the trial court’s records was offered on the subject. Nor does the factual basis for
defendant’s plea specify the property he received. The two items comprising the factual
basis, the trial transcripts and the police report, are not part of the record on appeal. The
trial transcripts no longer exist and the People were unable to locate the police report at
issue. However, we can surmise from the allegations of the People’s information and the
summary of the police report contained within defendant’s presentencing probation report
that the only stolen property defendant could have received consisted of the victim’s
purse and its contents. These included the victim’s cash, ATM cards, credit cards,
documents, and other miscellaneous property.
Putting aside that we are not certain which of these items defendant received,
defendant argues the trial court’s record is sufficient to establish that whatever property
he received had a value less than $950. We are not persuaded.
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First, defendant argues a valuation premised upon the victim’s losses because the
contents of her purse were recovered at the gas station and “[a]ssuming they were not
driving an 18-wheeler, it is reasonable to infer that perhaps 20 to 25 gallons of gasoline
may have been purchased at the most.” This is beside the point. It is the fair market
value of the items stolen that governs whether defendant may obtain relief. (See
Romanowski, supra, 2 Cal.5th at pp. 914-915.) Further, even though a court may
consider the value of what was obtained from an access card in determining fair market
value, this is only one of many factors that must be considered. The value of what has
been obtained cannot alone set the fair market value for these purposes. (Liu, supra,
8 Cal.5th at p. 263.)
Second, defendant argues the trial court’s minute order from August 10, 1994,
demonstrates both a defense valuation of $329.69 and the trial court’s denial of a motion
to amend the information to reflect a charge of petty theft. We have reviewed this minute
order and note that the specific property valued is not disclosed, nor is there any
information regarding how some person arrived at the defense valuation. Thus, we do
not consider this minute order as evidence of the fair market value of the stolen property
defendant received for purposes of the Proposition 47 inquiry.
Finally, defendant argues that the court record reflects the jury could not come to a
verdict on the grand theft count because the jury could not decide on the value of the
stolen property and that the threshold for establishing that count at the time of trial was
$400. This information from the record of trial is insufficient, standing alone, to establish
the fair market value of the stolen property that defendant received for purposes of
Proposition 47. Much like the valuation in the minute order, we do not know anything
about the evidence presented at trial as to the value of that property, nor how the jury was
instructed to value that property because there is no longer a reporter’s transcript of the
trial and any instructions given to the jury are not part of the record on appeal. Moreover,
by way of example, it could have been that some members of the jury thought the value
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of the property was in excess of $950 while others thought that the proper value of the
property was $350 and the jury could not reach an agreement. A mistrial, in this context,
proves nothing.
Nonetheless, as previously noted, some of the stolen property defendant may have
received was the victim’s ATM and/or credit cards. A prerequisite to obtaining relief,
therefore, was defendant’s establishment of the fair market value of those cards. (See
Caretto, supra, 28 Cal.App.5th at p. 912 [fair market value test applies to request to
reclassify stolen property conviction for receipt of stolen debit cards]; Liu, supra,
8 Cal.5th at p. 263 [further explaining how to determine the fair market value of stolen
access card information as required by People v. Romanowski, supra, 2 Cal.5th 903].)
However, defendant has not presented such evidence.
As recently explained by the high court in Liu, in determining the fair market
value of stolen access card information the court may consider the value of what was
obtained using any such card, but must also consider other “more probative pieces of the
pricing puzzle, such as: (1) the access card’s credit limit or the account balance. . . ;
(2) the amount of account information possessed by the defendant; (3) how much the
value of the information has been diminished because of its sale in illicit markets;
(4) how recently the information was stolen; and (5) the prevalence of comparable
information on the illicit market.” (8 Cal.5th at p. 263.) There is no such information
here.
Accordingly, we will affirm the denial of defendant’s petition for relief without
prejudice to defendant bringing a successive petition.
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DISPOSITION
We affirm the lower court’s order denying defendant’s petition without prejudice.
HULL, Acting P. J.
We concur:
MAURO, J.
MURRAY, J.
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