People v. Rivas-Colon

• Decision Date: 16 October 2015
• Docket Number: A144390
• Citation: 241 Cal.App.4th 444,193 Cal.Rptr.3d 651
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph RIVAS–COLON, Defendant and Appellant.

241 Cal.App.4th 444

193 Cal.Rptr.3d 651

The PEOPLE, Plaintiff and Respondent

v.Joseph RIVAS–COLON, Defendant and Appellant.

A144390

Court of Appeal, First District, Division 5, California.

Filed October 16, 2015

Review Denied January 13, 2016

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney General, for Plaintiff and Respondent.

Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Opinion

Jones, P.J.Appellant Joseph Rivas-Colon pled guilty to felony second degree commercial burglary (Pen.Code, § 459 )¹ and the trial court placed him on probation. Rivas-Colon later petitioned for resentencing pursuant to section 1170.18 and section 459.5, subdivision (a), which classifies shoplifting as a misdemeanor where the value of the property taken or intended to be taken does not exceed $950. The court denied the petition, concluding Rivas-Colon was not eligible for resentencing because the value of the property exceeded $950.

Rivas-Colon appeals. He contends the court erroneously denied his resentencing petition because (1) the prosecution, not the defendant, has the burden of proof on a petition for resentencing brought pursuant to section 1170.18; (2) the court erred by considering the police report and store receipt when determining his eligibility for resentencing; and (3) he had a right to a jury trial on the value of the property.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, San Francisco police officers received a “theft call” in June 2013 and went to the NFL Shop at Pier 39 (store). Witnesses reported Rivas-Colon entered the store with his own bag and filled it with several items totaling $1,437.74. The security alarm sensors activated when Rivas-Colon attempted to leave the store, prompting Rivas-Colon to empty his bag and ask the staff not to call the police. Police officers arrested Rivas-Colon.

The People charged Rivas-Colon with second degree burglary (§ 459 ), grand theft of personal property (§ 487, subd. (a)), and receiving stolen property (§ 496, subd. (a)). In late 2013, Rivas-Colon pled guilty to second degree commercial burglary. At the plea hearing, the defense stipulated to a factual basis for the plea contained in the police report, which listed the value of the property as $1,437.74. The court found a factual basis for the plea and Rivas-Colon's admission and placed Rivas-Colon on probation. In December 2014, Rivas-Colon petitioned for resentencing pursuant to sections 1170.18 and 459.5.

In opposition, the People argued Rivas-Colon was ineligible for resentencing because he stole $1,437.74 from the store. The opposition attached the police report and a store receipt, both of which listed the value of the property. The police report noted Rivas entered the store “with his own personal bag. [He] filled his bag with several baseball hats. Once [he] was done with his bag, he grabbed two other bags that were for sale and filled those up with more hats. By the time [he] was done, he had collected 38 baseball hats in the three bags, totaling $1,437.74 in ... merchandise before tax.”

At a hearing, the prosecutor urged the court to deny the resentencing petition because the value of property Rivas-Colon stole exceeded $950. The prosecutor referred to the police report and requested the court take judicial notice of the plea hearing transcript. When the court asked, “[a]nything further on that issue,” defense counsel responded, “[n]othing further.” The court denied the resentencing petition, concluding the value of the property exceeded $950.

DISCUSSION

In November 2014, California voters enacted Proposition 47, which “created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092, 183 Cal.Rptr.3d 362 ; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108–1109, 183 Cal.Rptr.3d 129.)

Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor “where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a).) “[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered ‘a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours,’ and whether ‘the value of the property that [was] taken or intended to be taken’ exceeded $950. (§ 459.5.)” (People v. Contreras (2015) 237 Cal.App.4th 868, 892, 188 Cal.Rptr.3d 698.)

I.

On His Petition for Resentencing, Rivas-Colon Had the Burden to Prove the Value of the Property Did Not Exceed $950

Rivas-Colon contends the prosecution had the burden to establish the value of the property exceeded $950.² According to Rivas-Colon, “without adequate proof that the value of the merchandise exceeded $950, [he] is presumptively entitled” to resentencing. At least one court has rejected this argument. (People v. Sherow (2015) 239 Cal.App.4th 875, 191 Cal.Rptr.3d 295 (Sherow ).) In Sherow, the defendant petitioned for resentencing of his second degree burglary convictions but did not offer any facts, evidence, or argument supporting the petition. (Id. at p. 877, 191 Cal.Rptr.3d 295.) In opposition, the prosecutor argued the defendant was ineligible for resentencing because the loss exceeded $950; the trial court agreed and denied the petition. (Ibid. ) On appeal, the defendant claimed the record did “not show the loss as to each count exceeded $950” and “the prosecution had the burden to prove [he] was not eligible for resentencing.” (Id. at pp. 877-878, 191 Cal.Rptr.3d 295.)

The Fourth District Court of Appeal disagreed and held “a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing,” (Sherow, supra, 239 Cal.App.4th at p. 878, 191 Cal.Rptr.3d 295 ) and therefore must “show the property loss ... did not exceed $950 and thus fell within the new statutory definition of shoplifting.” (Id. at p. 877, 191 Cal.Rptr.3d 295.) The Sherow court noted the well-settled principle that “ ‘[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 he is asserting’ ” (id. at p. 879, 191 Cal.Rptr.3d 295 ) and explained, “ ‘[t]he petitioner will have the initial burden of establishing eligibility for resentencing under section 1170.18(a): i.e., whether the petitioner is currently serving a felony sentence for a crime that would have been a misdemeanor had Proposition 47 been in effect at the time the crime was committed. If the crime under consideration is a theft offense under sections 459.5, ... or 496, the petitioner will have the additional burden of proving the value of the property did not exceed $950.’ ” (Ibid. , italics omitted, quoting Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and Schools Act” (Feb. 2015), courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 10, 2015] p. 40.)

Under Sherow, Rivas-Colon had the burden to establish “the facts, upon which his ... eligibility [was] based[,]” i.e. that the value of the property he took from the store did not exceed $950. (Sherow, supra, 239 Cal.App.4th at p. 880, 191 Cal.Rptr.3d 295.) And like the defendant in Sherow, Rivas Colon did not satisfy that burden. His petition was completely “devoid of any information about the offense[ ]” for which he sought resentencing and did not allege the value of the property was under $950. (Id. at p. 878, 191 Cal.Rptr.3d 295.) At the hearing on the petition, Rivas–Colon offered no evidence--and no argument-- demonstrating he was eligible for resentencing. The court therefore properly denied Rivas–Colon's resentencing petition because he failed to satisfy his burden to prove the value of the property he took from the store did not exceed $950. (§ 1170.18, subds. (b) [“the court shall determine whether the petitioner satisfies the criteria in subdivision (a)”] & (g) [court must designate the offense as a misdemeanor “[i]f the application satisfies the criteria”]; Evid.Code, § 500 [“a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief ... that he is asserting”].)³

We are not persuaded by Rivas–Colon's claim that trial counsel was ineffective for failing to “specify the amount of merchandise” in connection with his resentencing petition. “To establish ineffective assistance of counsel, ‘ “ ‘a defendant must first show counsel's performance was “deficient” because his “representation fell below an objective standard of reasonableness ... under prevailing professional norms.” ’ ” ' [Citation.] ‘ “[T]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ” ' [Citation.] ‘In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions.’ [Citation.] For this reason, claims of ineffective assistance of counsel ‘are ordinarily best raised and reviewed on...