People v. Rude CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Riverside County · No. RIF1206689
- Trial judge
- Judith C. Clark
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- McINTYRE (author), O'Rourke
Analysis
The trial court denied Ryan Rude's petition to reduce his grand theft convictions to misdemeanors under Proposition 47, finding he was ineligible because the value of the stolen property exceeded $950. The Court of Appeal affirmed the denial, determining that the record established the property values were well above the statutory threshold and Rude failed to meet his burden of proof.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence under Penal Code section 1170.18“Accordingly, the trial court properly denied Rude's petition for recall of sentence because Rude was not statutorily eligible for relief under section 1170.18.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 created a resentencing provision codified at section 1170.18 allowing eligible persons to petition for recall of sentence.
- relied: People v. Rivas–Colon (2015) 241 Cal.App.4th 444 — The petitioner bears the burden of proof to demonstrate eligibility for relief under Proposition 47.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must review the record for error when presenting no argument for reversal.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may file a brief identifying possible but not arguable issues and requesting independent review by the court.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court denied Ryan Rude's Penal Code section 1170.18 (Proposition 47) petition to reduce four grand theft convictions to misdemeanors, finding the loss on each count exceeded $950. On a Wende appeal with no supplemental brief from the defendant, the Court of Appeal independently reviewed the record, found Rude had not carried his burden to show eligibility and that the record showed losses far above $950, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Proposition 47 petition under section 1170.18 to reduce grand theft counts 17, 39, 46 and 52 to misdemeanors on the ground the loss on each count exceeded $950“The trial court denied the petition on the ground he was ineligible for statutory relief as the loss on each count "exceed[ed] $950."” | unclear | correct | agree with court Section 490.2 makes theft a misdemeanor only when the property value does not exceed $950, and under Rivas-Colon the petitioner bears the burden of proving eligibility. Rude offered no evidence of value at the hearing, and the record (information allegations of $40,000 to $50,000 per victim and stipulated restitution awards of $40,000 to $450,000) establishes each theft far exceeded $950. The court's conclusion follows directly from the statute and the cited authority. |
Authorities
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 created a resentencing provision in section 1170.18 allowing persons serving sentences for designated felonies to petition to have them reduced to misdemeanors
- relied: People v. Rivas-Colon (2015) 241 Cal.App.4th 444 — A Proposition 47 petitioner bears the burden of proving eligibility, including that the value of the property taken did not exceed $950
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the appellate court must independently review the entire record for error
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief identifying possible but non-arguable issues for the court's review
The appellate opinion: sound — The opinion identifies the only possible issue, applies the correct statutory threshold and the burden-of-proof rule from Rivas-Colon, and points to specific record evidence (charged values and stipulated restitution) establishing losses far above $950. It does not address whether Wende review applies to appeals from postjudgment Proposition 47 orders, but by conducting the full review it gave the defendant more than he was arguably entitled to, so the omission does not affect the result.
Opinion
Filed 4/7/16 P. v. Rude 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, D069020
Plaintiff and Respondent, (Super. Ct. No. RIF1206689) v. RYAN E. RUDE, Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County, Judith C.
Clark, Judge. Affirmed.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearances for Plaintiff and Respondent.
In 2013, a jury convicted Ryan E. Rude of numerous counts of grand theft, securities fraud and offering and selling unqualified securities. The trial court sentenced him to 26 years and four months in prison. In 2015, Rude filed a petition to reduce his conviction for grand theft in counts 17, 39, 46 and 52 to a misdemeanor under Proposition 47, the Safe Neighborhoods and Schools Act, Penal Code section 1170.18.
(Undesignated statutory references are to the Penal Code.) (See People v. Rivera (2015)
233 Cal.App.4th 1085, 1089 (Rivera).) The trial court denied the petition on the ground he was ineligible for statutory relief as the loss on each count "exceed[ed] $950." Rude timely appealed.
DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738 (Anders), counsel listed as possible but not arguable issues, whether the evidence in the record on file as to counts 17, 39, 46, and 52 proved the value of the grand theft as to each of these counts exceeded $950 and rendered Rude ineligible for relief under section 1170.18. Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. We also granted Rude permission to file a brief on his own behalf. More than 30 days elapsed, and we received no communication from Rude.
Proposition 47 created a resentencing provision, codified at section 1170.18, which provides that a person currently serving a sentence for certain designated felonies may petition for recall of the sentence to reduce the felony to a misdemeanor. (Rivera, supra, 233 Cal.App.4th at p. 1092.) Proposition 47 provides, in part: "(a) A person currently serving a sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under the act . . . had this act been in effect at the time of the 2 offense may petition for a recall of sentence . . . to request resentencing in accordance with . . . Section . . . 490.2 . . . of the Penal Code, as those sections have been amended or added by this act." (§ 1170.18, subd. (a).) Section 490.2 redesignates as misdemeanors any convictions under section 487 or "any other provision of law defining grand theft" if "the value of the . . . property taken does not exceed" $950.
At the hearing on his petition, Rude did not present evidence demonstrating that the value of the stolen property was less than $950. Thus, Rude did not meet his burden of proof as to eligibility for relief under Proposition 47. (People v. Rivas–Colon (2015)
241 Cal.App.4th 444, 449.) In any event, the record amply showed that the value of the personal property Rude took from each victim exceeded $950.
As to the four grand theft counts at issue, the information alleged that Rude stole personal property from Mark Singer, Patricia Ellen Kirwin, Brian Schrieber and Steven Zorn valued, respectively, at $50,000, $50,000, $40,000 and $45,000. At the sentencing hearing, counsel agreed as to the amount of restitution owed to each victim. Thereafter, the trial court awarded restitution to the victims in the following amounts: Singer $50,000; Kirwan $450,000; Schrieber $40,000; and Zorn $350,000. On this record, we are satisfied that Rude's convictions on counts 17, 39, 46, and 52 were not for theft of property under the value of $950. Accordingly, the trial court properly denied Rude's petition for recall of sentence because Rude was not statutorily eligible for relief under section 1170.18.
3 We examined the entire record to determine if there are any other arguable issues on appeal. Based on that independent review, we have determined there are no arguable issues on appeal. Competent counsel has represented Rude on this appeal.
DISPOSITION
The order is affirmed.
McINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
PRAGER, J.* * Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Cites, in this corpus
- People v. Rivas-Colon A144390 · 2015-10-16
- People v. Rivera H041742 · 2015-01-29
- People v. Wende Crim. 20851 · 1979-10-12