People v. Powell, E070561

• Decision Date: 04 March 2019
• Docket Number: E070561
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. IRA EARL POWELL, JR., Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. IRA EARL POWELL, JR., Defendant and Appellant.

E070561

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

March 4, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FWV1302024)

OPINION

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.

Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Ira Earl Powell, Jr., appeals from the trial court's denial of his second Proposition 47 petition. On appeal, defendant argues (1) the trial court erred by failing to exercise its discretion to consider his second petition on the merits because the California Supreme Court has ruled that successive Proposition 47 petitions are permitted; and (2) his second petition made a prima facie showing that he is eligible for resentencing and the evidence in the record shows that the value of the stolen property was under $950. In the alternative, defendant contends a remand is necessary for the trial court to conduct an evidentiary hearing and, if necessary, to allow defendant leave to amend the second petition.

For the reasons explained below, we agree with defendant that successive Proposition 47 petitions are permitted. However, defendant's second petition failed to establish the value of the stolen goods was less than $950. Accordingly, we affirm the order denying defendant's second petition to reduce his commercial burglary conviction to a misdemeanor without prejudice to consideration of a subsequent petition that supplies evidence of the value of the stolen property.

II

FACTUAL AND PROCEDURAL BACKGROUND¹

On June 4, 2013, defendant, who was homeless and loitering in the area, saw the back door to a UPS store was ajar. He grabbed three packages near the entryway and ran. An employee saw the theft and followed defendant. The employee found defendant standing by a Dumpster, opening the packages. When the employee approached, defendant dropped the packages and ran away. All three packages were recovered and contained a pair of leather boots, film negatives, and a silver razor scooter. No value for the items was provided in the police report. Two of the packages were taped and repaired, and one package was ripped and had to be replaced, at a cost of $2. The investigating officer took photos of the stolen and recovered items.

On June 18, 2013, a felony complaint was filed charging defendant with carrying a dirk or dagger (Pen. Code, § 21310; count 1),² being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2), and second degree commercial burglary (§ 459; count 3). The complaint also alleged that defendant had suffered one prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and five prior prison terms (§ 667.5, subd. (b)).

On June 25, 2013, defendant pled no contest to counts 1 and 3 and admitted one prior prison term. In return, the remaining allegations were dismissed, and defendant was sentenced to a total term of four years in state prison.

On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft-related offenses—including second degree commercial burglary—to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure allowing offenders to petition to designate eligible felony convictions as misdemeanors and obtain resentencing if they "would have been guilty of a misdemeanor under" the provisions added by Proposition 47. (§ 1170.18, subds. (a), (f).)

On December 17, 2014, defendant, in propria persona, filed a petition for resentencing under section 1170.18, using a form adopted by the "Superior Court of California, County of Lake." The form did not provide a space to describe his offenses or explain his eligibility for Proposition 47 relief. With the exception of his initialed plea form, defendant did not include any other information with his petition.

On January 23, 2015, the trial court summarily denied defendant's petition, finding defendant did "not satisfy the criteria in Penal Code [section] 1170.18 and is not eligible for resentencing."

Approximately three years later, on January 29, 2018, defendant, represented by a public defender, filed a "Motion for Reconsideration[/]Penal Code 1170.18 Petition" asto count 3 only, the second degree commercial burglary conviction.³ The second petition included a declaration of counsel alleging, in pertinent part, the stolen goods were recovered and that the value of the stolen items "was less than $950, to wit $2." The second petition also included a copy of the felony complaint and a five-page police report prepared by the investigating officer dated June 12, 2013.

A hearing on defendant's second petition was held on May 18, 2018. At that time, the following colloquy occurred:

"[DEFENSE COUNSEL]: Just briefly, just to refresh the Court's memory, this was a theft of packages from UPS stores.

"THE COURT: When he went into the back?

"[DEFENSE COUNSEL]: Well, it says, according to the discovery, which is part of the Court's file, he went into an entryway near a door because he saw some packages. He takes the packages and runs out with them, somebody yells at him, so he drops them near a commercial [D]umpster near the back.

"THE COURT: And the prosecution states that was an area not open to the public.

"[DEFENSE COUNSEL]: There's no case law about an area not open to the public. There's case law, you know, if it's done during business hours or closed.

"THE COURT: Right.

"[DEFENSE COUNSEL]: I didn't find any case law about that.

"[THE PROSECUTOR]: There's split authority. There's a case up on appeal right now about that, but that's not our main argument.

"[DEFENSE COUNSEL]: Also—and packages, themselves, I guess, the value was listed as $2.00 because that was the value to UPS as far as . . . the material packaging. What was inside were leather boots, a Razor Scooter, and film negatives. I can't establish that those are over 950 or that they are under 950. And, I think, what's in the police report is all we have got. The value is listed as $2.00.

"I think the client, under Estrada,⁴ gets the benefit. The Court should grant this petition because I don't think the value can be—the value is not shown to be over $950; negatives, Razor Scooter, and leather boots together. If we were talking about a car, I could see why the Court would want to err on the side of caution and deny. We are talking about three packages that is (sic) listed in the police report valued as $2.00. I'm asking the Court to grant the petition.

"[¶] . . . [¶]

"[THE PROSECUTOR]: Yes. So three and a half years ago the Court already denied the petition. It was not—it was not without prejudice. There's been no change in circumstances. Basically, they attach the police report, but that was the same evidence that was heard three and a half years.

"Per People v. Sherow[ (2015) 239 Cal.App.4th 875 (Sherow)], the petitioner, who is the defendant, has the burden of proof to prove that the items stolen were less than 950, and there's nothing in the police report to indicate the value of the items that were stolen. It says damage to boxes, but that's not the contents of what he stole. So without that, they have not met their burden. The Court has already ruled and the petition should be denied again.

"THE COURT: I see in the minute order that . . . the petition under Prop. 47 was denied in January of 2015. Wouldn't the proper remedy had been to appeal or take a writ on that denial?

"[DEFENSE COUNSEL]: I agree. I guess, if it was done without prejudice, they probably figured, maybe, they can get some more information. Apparently, we can't get any more information.

"THE COURT: And we don't have any additional information.

"[DEFENSE COUNSEL]: Yeah."

The court thereafter denied defendant's second petition, finding "the same petition was previously denied on the merits, and there's no new or additional information or no new law on the subject, the petition is again denied."

On May 21, 2018, defendant filed a timely notice of appeal.

III

DISCUSSION

Defendant contends that the trial court erred by failing to exercise its discretion to consider his second petition on the merits and the California Supreme Court has ruled that successive Proposition 47 petitions are permitted. He also argues that the second petition made a prima facie case he was eligible for resentencing and that the value of the stolen items was under $950. In the alternative, defendant requests that the matter be remanded to the trial court with directions to conduct an evidentiary hearing on the fair market value of the stolen property and if necessary, allow defendant leave to amend the second petition.

The People implicitly concede that defendant's second petition was not barred by the filing of a prior petition for resentencing but assert that defense counsel filed a motion for reconsideration of the first petition and not a second petition. The People also contend that even assuming the motion for reconsideration constituted a second or amended petition, the court properly denied the second petition on the merits because defendant failed to meet his burden of showing...