People v. Perkins
| Decision Date | 25 January 2016 |
| Docket Number | E062878 |
| Citation | 197 Cal.Rptr.3d 743,244 Cal.App.4th 129 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Clayton Omar PERKINS, Defendant and Appellant. |
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.
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 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.
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 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 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 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.
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, 173 Cal.Rptr.3d 1, 326 P.3d 939.) The...
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