Filed 10/11/17 P. v. Vargas CA4/1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

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.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

In 2005 Jorge Vargas stole 32 bags of avocados. Vargas entered a negotiated guilty plea to felony grand theft of avocados, and the trial court imposed a stipulated 16-month lower prison term. In 2014 Proposition 47 went into effect, reclassifying certain felonies as misdemeanors (Pen. Code, § 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)). In 2015 Vargas filed a petition asking the court to designate his offense a misdemeanor, recall the sentence, and resentence him under Penal Code section 1170.18. The court ultimately denied the petition, concluding Vargas had failed to prove that the value of the avocados was less than $950.

In our original opinion, we affirmed the trial court's order, agreeing that Vargas did not meet his burden to establish eligibility for resentencing because he failed to provide any evidence showing the avocados were worth less than $950, the threshold for resentencing under the statute. (People v. Vargas (Jan. 12, 2016, D068097) [nonpub. opn.], review granted March 23, 2016, S232418 (Vargas I).) Vargas filed a petition for review by the California Supreme Court, which was granted and held along with numerous other similar cases.

In People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), the Supreme Court held that the burden to establish eligibility for resentencing under Proposition 47 remained with the petitioner. (Romanowski, at p. 916.) Romanowski clarified that the value of stolen property for purposes of resentencing should be calculated based on the property's " 'reasonable and fair market value.' " (Id. at p. 906.) The court also held that an evidentiary hearing may be required in cases where eligibility for resentencing turns on facts not established in the uncontested petition or record of conviction. (Id. at p. 916.) However, the court made clear that such a hearing would only be required if, after considering certain reliable evidence, there is a "reasonable likelihood" that the petitioner may be entitled to relief. (Ibid.)

On August 16, 2017, the California Supreme Court transferred this case back to this court for reconsideration in light of Romanowski. The only question remaining is whether the lack of evidence in the original petition provides sufficient grounds to affirm. We conclude that by failing to provide any evidence of the value of the avocados, Vargas has failed to establish a reasonable likelihood that he was entitled to relief. Consequently, we again affirm the trial court's order.

DISCUSSION

Our original decision noted that Vargas's petition did not include any evidence that the value of the avocados was worth less than $950. Vargas argues that because the record of conviction is silent on the true value of the avocados, an evidentiary hearing is required. We disagree.

As Romanowski noted, "The ultimate burden of proving section 1170.18 eligibility lies with the petitioner." (Romanowski, supra, 2 Cal.5th at p. 916.) In some cases, "an evidentiary hearing may be 'required if, 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 court finds 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.' " (Ibid., italics added.)

In this case, Vargas has failed to provide any evidence showing that the 32 bags of avocados he stole had a reasonable and fair market value less than $950. Vargas did not submit a declaration or affidavit about the value of the avocados, no witness testified that the avocados were worth less than $950, and nothing in the record suggests that 32 bags of avocados were worth less than $950. In fact, the only mention of value in the record suggests that the avocados were worth far more than $950.[1] We do not hold that the actual value of the avocados exceeded $950, only that Vargas failed to establish that they were worth less, despite having the opportunity to do so. Because Vargas did not provide any evidence supporting his eligibility for Penal Code section 1170.18 relief, he did not satisfy his burden and the trial court did not err in denying the petition. However, our opinion will not preclude Vargas from obtaining relief if he is able to demonstrate eligibility for relief in a new, properly supported petition. (People v. Johnson (2016) 1 Cal.App.5th 953, 970 [petitioner seeking recall of sentence under Proposition 47 may present probative evidence from any source].)

DISPOSITION

The order denying Vargas's petition under Penal Code section 1170.18 is affirmed without prejudice to later consideration of a properly supported petition offering evidence of his eligibility for relief.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.