People v. Simms

• Citation: 233 Cal.Rptr.3d 618,23 Cal.App.5th 987
• Decision Date: 25 May 2018
• Docket Number: A149575
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeremy SIMMS, Defendant and Appellant.

23 Cal.App.5th 987

233 Cal.Rptr.3d 618

The PEOPLE, Plaintiff and Respondent,

v.Jeremy SIMMS, Defendant and Appellant.

A149575

Court of Appeal, First District, Division 4, California.

Filed May 25, 2018

First District Appellate Project, Jonathan Soglin, San Francisco, Executive Director, and Richard Such, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, Victoria Ratnikova, Deputy Attorney General, for Plaintiff and Respondent.

Streeter, Acting P.J.Jeremy Simms filed a partially successful Penal Code section 1170.18¹ petition to have four prior felonies reduced to misdemeanors pursuant to Proposition 47, but failed to obtain the requested reductions as to convictions for grand theft from the person and for burglary. During eligibility proceedings at which Simms was not present, the trial court found Simms was not eligible to have either of these convictions reduced to a misdemeanor because he failed to show that the dollar amount of the stolen property in either instance was $950 or less—the prerequisite for reduction under section 1170.18.

Simms appealed this decision, contending (1) the trial court "misunderstood" the evidence presented to it concerning the amounts of money taken, (2) he was denied his constitutional and statutory rights to be present during the eligibility proceedings, and (3) his counsel provided ineffective assistance. Although we reject Simms's attack on the trial court's factual assessment of the record, we agree he was deprived of his right to be present for the determination of eligibility. We shall therefore vacate the trial court's ineligibility determination and remand for further proceedings. We do not reach his claim of ineffective assistance.

I. BACKGROUND

On January 22, 2014, Jeremy Simms entered Jesus Vega's tire store and asked for a used tire. Vega heard the cash drawer close as he walked to the back of the store and returned to find Simms at the counter with his hand near the drawer. Simms then put what Vega believed to be money into his pocket, though Vega did not actually see Simms take any money. Vega accused Simms of stealing money from the cash drawer and threatened to call the police if he did not return it. Simms denied taking any money and walked to his car. As Simms got into his car, Vega tried to stop him from leaving by reaching to take his keys, but Simms pulled out pepper spray, sprayed Vega, and drove away.

After Simms left, Vega inspected the store's surveillance footage from the previous day (January 21) and saw footage of Simms entering the store and taking money out of the register that day as well. The video also showed Simms entering the store a second time on January 21 without taking anything.

A preliminary hearing was held on March 5, 2014, at which Vega, during a convoluted line of questioning, initially stated roughly $1,500 was taken from the cash drawer on both January 21 and 22. But he went on to say he told the investigating officers approximately $985 was missing on the 22nd and that he did not notice money was missing on the 21st because he did not have a chance to inventory the cash drawer until the night of the 22nd. He further stated he did check the drawer on the 21st and noticed that some money was missing, but did not inspect it closely enough to see exactly how much was missing. Vega concluded by saying he was not sure how much money was missing on the 21st or the 22nd because he did not tally up what was missing until the 22nd.

Based on these events at Vega's tire store on January 21 and 22, the People filed an information charging Simms with second degree robbery (§§ 211, 212.5, subd. (c) ) (count one) (the January 22 incident) and two counts of second degree burglary (§§ 459, 460, subd. (b) ) (counts two & three) (both incidents on January 21). The information alleged that Simms used a deadly or dangerous weapon—pepper spray—in the commission of the robbery (§ 12022, subd. (b)(1) ). The information further alleged that Simms had a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12) and that he had served six prior prison terms (§ 667.5, subd. (b) ).

As part of a plea bargain, the prosecutor moved to amend the robbery charge to grand theft from the person (§ 487, subd. (c) ). Simms pleaded no contest to the amended charge as well as to the two burglary charges. He also admitted the prior strike and prior prison term allegations. As part of the bargain, Simms also pleaded no contest to receiving stolen property (§ 496) and admitted a prior strike conviction allegation in a second case; in a third case, Simms pleaded no contest to transportation of methamphetamine ( Health & Saf. Code, § 11379, subd. (a) ) and admitted the allegations that he was released on his own recognizance at the time of the offense (§ 12022.1) and that he had a prior drug conviction ( Health & Saf. Code, § 11370.2, subd. (c) ) and a prior strike conviction. On these agreed terms, the trial court granted the prosecutor's motion to dismiss the remaining counts and allegations in all three cases, and accepted the pleas. As part of this negotiated disposition, the court sentenced Simms to a term of 23 years in prison.

Following his conviction and sentence, Simms filed a petition under section 1170.18, subdivision (a), without specifying the offenses for which he sought relief. The petition, which was purportedly filed "In Propria Persona" but signed "Linda Thompson for Jeremy Simms" stated that "Petitioner waives his/her right to be personally present for hearing on this petition in the event (1) the DA is not objecting, and (2) the Court is willing to grant the relief being requested." On the People's request for an evidentiary hearing, the court eventually held two hearings, on August 19 and September 9, 2016. Simms attended neither proceeding. At the first hearing, Simms's counsel argued the burglary convictions from January 21 should be reduced since there was no evidence showing the amount taken exceeded $950.

On September 9, 2016, the trial court granted the petition as to one of the burglary convictions arising from the January 21 incident—the one where the video showed Simms took nothing from the cash register—and the receiving stolen property conviction arising from a different case. The court denied the petition as to the other burglary conviction from the 21st and the grand theft conviction from the 22nd. The court imposed six-month concurrent terms on the counts that were resentenced to misdemeanors, reducing Simms's total sentence to 20 years, 4 months.

Simms filed a timely notice of appeal from the partial denial of his section 1170.18 petition.

II. DISCUSSION

A. Procedural Setting and Applicable Standards of Review

In November 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 183 Cal.Rptr.3d 362.) Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the offenses were committed by otherwise ineligible defendants. ( Id. at p. 1091, 183 Cal.Rptr.3d 362.) At issue in this case is one of the principal implementing provisions in Proposition 47, section 1170.18, which permits "a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47 [to] petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." ( People v. Rivera, supra, 233 Cal.App.4th at p. 1092, 183 Cal.Rptr.3d 362.)

For a defendant who is still serving his sentence, a section 1170.18 proceeding begins, as it did here, with the filing of a petition for recall and resentencing under subdivision (a). (See People v. Sherow (2015) 239 Cal.App.4th 875, 879, 191 Cal.Rptr.3d 295.) In the two-step procedure that follows (see People v. Bush (2016) 245 Cal.App.4th 992, 1001, 200 Cal.Rptr.3d 190 ( Bush ) ), the court initially undertakes a screening determination focused on whether the petitioner has made out a prima facie case for relief. ( People v. Sledge (2017) 7 Cal.App.5th 1089, 1094, 213 Cal.Rptr.3d 265 ( Sledge ).) At the screening stage, the petitioner bears the burden of proving the eligibility criteria set forth in subdivision (a). ( People v. Page (2017) 3 Cal.5th 1175, 1188, 225 Cal.Rptr.3d 786, 406 P.3d 319 ( Page ).) If the court determines that he has done so, the proceeding moves to the second step at which the court must recall the challenged sentence and resentence the petitioner to a misdemeanor, unless, in its discretion, it "determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b); see People v. Jefferson (2016) 1 Cal.App.5th 235, 239–240, 204 Cal.Rptr.3d 583 ( Jefferson ).)

In many cases, the threshold issue of eligibility for relief under section 1170.18, subdivision (a) may be determined as a matter of law from the uncontested allegations of the petition or from the record of conviction. ( Page , supra , 3 Cal.5th at p. 1189 ; People v. Romanowski (2017) 2 Cal.5th 903, 916, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ).) While the court has no obligation to hold an evidentiary hearing where the petitioner's eligibility or ineligibility for relief is evident as a matter of law, " ‘[a]n evidentiary hearing is required if ... there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.’ " ( Sledge , supra , 7 Cal.App.5th at p. 1095.)

The test is whether " ‘after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the...