People v. Vargas CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCN201093-2
- Trial judge
- David J. Danielsen
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Gilbert Nares (author), Judith D. McConnell, Cynthia Aaron
Analysis
The trial court denied the defendant's petition to recall his sentence and resentence him as a misdemeanor under Proposition 47, finding he failed to prove by a preponderance of the evidence that the value of the stolen avocados did not exceed $950. The Court of Appeal affirmed the denial, holding that the defendant bore the burden of establishing eligibility and failed to present sufficient evidence regarding the value of the property.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence and resentencing under Penal Code section 1170.18“Vargas presented no evidence concerning how many avocados he stole or any other information that would have shed light on the value of the avocados. The court properly denied his petition.” | unclear | correct | agree with court The appellate court correctly applied the burden of proof established in People v. Sherow, which places the burden on the petitioner to establish eligibility for resentencing under Proposition 47. Because the defendant failed to present any evidence regarding the value of the avocados, the trial court was correct in denying the petition based on the failure to meet that burden. |
Authorities
- relied: People v. Sherow (2015) 239 Cal.App.4th 875 — Petitioners bear the burden of establishing eligibility for resentencing under Penal Code section 1170.18.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reclassified certain felonies, including theft of property valued at no more than $950, as misdemeanors.
- relied: People v. Guerrero (1988) 44 Cal.3d 343 — When a record of conviction is ambiguous, the conviction is presumed to be for the least offense punishable.
The appellate opinion: sound — The opinion is sound because it correctly identifies the burden of proof on the petitioner under People v. Sherow and applies it to the specific facts where the petitioner offered no evidence. The court also appropriately distinguishes the application of the presumption from People v. Guerrero, which applies to ambiguous records, from the requirement to prove eligibility for resentencing.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Jorge Vargas's Proposition 47 petition (Pen. Code, § 1170.18) to reduce his 2005 felony grand theft of avocados conviction to a misdemeanor, finding he had not shown by a preponderance of the evidence that the avocados were worth $950 or less. The Court of Appeal affirmed, holding under People v. Sherow that the petitioner bears the burden of proving eligibility and that Vargas offered no evidence of the number or value of the avocados taken.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Placement of the burden of proof on the Proposition 47 petitioner to establish eligibility (value of stolen property at or below the statutory threshold)“In the trial court, Vargas had the burden of establishing his eligibility for resentencing under section 1170.18.” | unclear | correct | agree with court The court followed People v. Sherow (2015) 239 Cal.App.4th 875, which squarely holds that a section 1170.18 petitioner bears the initial burden of showing eligibility, and the opinion quotes Sherow's rationale that the defendant knows what he took. The court did not state a standard of review, but burden allocation is a legal question and the result tracks the then-controlling Court of Appeal authority. The opinion did not, however, directly engage Vargas's argument that eligibility is limited to the record of conviction under People v. Guerrero. |
Denial of the section 1170.18 petition because Vargas failed to prove by a preponderance of the evidence that the avocados were valued at $950 or less“Vargas presented no evidence concerning how many avocados he stole or any other information that would have shed light on the value of the avocados.3 The court properly denied his petition.” | unclear | correct | agree with court Once the burden rests on the petitioner, a petition supported by no evidence of value fails; the record of conviction showed only that the value exceeded $100, which does not establish it was $950 or less. The appellate court did not rely on the trial court's reference to police records estimating the loss in the thousands (which the trial court itself called unreliable), so the affirmance rests on the absence of any showing by Vargas rather than on contested hearsay. Footnote 3 properly declines to decide whether the $950 or $250 threshold governs because the result is the same either way. |
Authorities
- relied: People v. Sherow (2015) 239 Cal.App.4th 875 — A petitioner seeking resentencing under Penal Code section 1170.18 bears the initial burden of establishing eligibility, including that the value of the property taken did not exceed $950.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reclassified certain felony theft and drug offenses as misdemeanors and created a petition procedure for recall of sentence and resentencing.
The appellate opinion: sound with gaps — The result is defensible and consistent with Sherow, the controlling Court of Appeal authority at the time, which placed the burden of proving eligibility on the petitioner. The opinion, however, does not directly answer Vargas's record-of-conviction argument under Guerrero or explain why that framework does not apply to section 1170.18 petitions, and it states no standard of review.
Opinion
Filed 1/12/16 P. v. Vargas CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068097
Plaintiff and Respondent, v. (Super. Ct. No. SCN201093-2)
JORGE VARGAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Suzanne G. Wrubel, 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, Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent. In September 2005, Jorge Vargas stole more than $100 worth of avocados. In October, he entered a negotiated guilty plea to grand theft of avocados, a felony (Pen.
Code,1 § 487, former subd. (b)(1)(A)). At that time, section 487 defined grand theft as, inter alia, a taking of "money, or real or personal property . . . of a value exceeding . . . [$400]" (§ 487, subd. (a)) or "avocados . . . of a value exceeding . . . [$100]" (id., subd. (b)(1)(A)). In October, the court imposed a stipulated 16-month lower prison term.
In November 2014, Proposition 47 went into effect, reclassifying certain felonies as misdemeanors (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085, 1089), including theft of property valued at no more than $950 (§ 490.2, subd. (a)).2 Proposition 47 allows persons with such felony convictions to petition for recall of sentence and resentencing (§ 1170.18, subds. (a), (b); People v. Sherow (2015) 239 Cal.App.4th 875, 879). In April 2015, Vargas filed a petition asking the court to designate his offense a misdemeanor, recall the sentence and resentence him (§ 1170.18).
The People opposed the petition. In May 2015, the court denied the petition, concluding Vargas had failed to prove, by a preponderance of the evidence, that the value of the avocados did not exceed $950. The court stated "the police records estimate the loss in the thousands of dollars," but noted the "lack of reliability" of valuation information and 1 Further statutory references are to the Penal Code.
2 By then, section 487 had been amended to define grand theft as a taking of "money, labor, or real or personal property . . . of a value exceeding . . . [$950]" (§ 487, subd. (a)) or a taking "of . . . avocados . . . of a value exceeding . . . [$250]" (id., subd. (b)(1)(A)). 2 stated the information served "to prove that there is really a legitimate issue" rather than "the truth of the matter asserted."
Vargas appeals, contending the court erred by denying his petition because eligibility determinations under section 1170.18 are limited to the record of conviction and, since that record is silent concerning whether the avocados were valued at $950 or less, it must be presumed his "conviction was for the least offense punishable" (People v. Guerrero (1988) 44 Cal.3d 343, 352).
In the trial court, Vargas had the burden of establishing his eligibility for resentencing under section 1170.18. (People v. Sherow, supra, 239 Cal.App.4th at pp. 878-880.) "Applying the burden to [Vargas] would not be unfair or unreasonable.
He knows [how many avocados] he took . . . ." (Id. at p. 880.) Vargas presented no evidence concerning how many avocados he stole or any other information that would have shed light on the value of the avocados.3 The court properly denied his petition.
3 We need not discuss whether Vargas was required to prove the avocados were valued at $950 or less (§§ 490.2, subd. (a), 487, subd. (a)) or $250 or less (§ 487, subd. (b)(1)(A)). 3 DISPOSITION The order is affirmed.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.
Cites, in this corpus
- People v. Sherow CA4/1 D067605 · 2015-08-11
- People v. Rivera H041742 · 2015-01-29
- People v. Guerrero Crim. 26174 · 1988-02-11