People v. Jauregui CA4/2 ( 2016 )

Filed 7/6/16 P. v. Jauregui CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063660
v. (Super.Ct.No. FVI800930)
JASON JAUREGUI, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, 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, Barry Carlton, and Karl T. Terp,
Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant Jason Jauregui appeals an order denying his petition for resentencing
under Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, §§ 1170.18,
487, subd. (a).)1 Defendant requests this court to reverse the order as to counts 1, 9, 15,
and 16. Counts 1, 9, and 15 allege commercial burglary (§ 459), each as to a different
victim. Count 16 alleges possession of a forged driver’s license (§ 470b).
We affirm the trial court order denying defendant’s petition for resentencing for
three reasons. First, the record on appeal does not show defendant pled guilty or was
convicted as to counts 15 and 16. According to the record before this court, defendant
only pled guilty and was convicted of counts 1 through 6 and 9 through 12. Second,
defendant’s petition for resentencing does not seek any relief or resentencing as to counts
1, 9, 15 or 16. And third, as defendant concedes in his reply, defendant has not met his
burden of establishing that the value of the property at issue in each count does not
exceed $950.
II
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s 10 convictions (counts 1 through 6 and 9 through 12) involve a
scheme in which defendant used forged documents and committed identity theft to
fraudulently purchase three new cars and one used car from several car sales businesses.
1 Unless otherwise noted, all statutory references are to the Penal Code.
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In April 2008, the district attorney filed a felony complaint against defendant, alleging 26
counts and numerous enhancements. The complaint included charges for crimes
involving four separate incidents of defendant fraudulently purchasing vehicles from
different victims, from September 2007 through April 2008.
On June 3, 2010, defendant signed a plea form pleading guilty to counts 1 through
6 and 9 through 12, and admitting to various enhancements. Counsel approved the
written plea and the court accepted it. During the plea hearing on June 3, 2010,
defendant confirmed pleading guilty as stated in the written plea agreement. The court
sentenced defendant to 16 years in prison, dismissed all remaining counts and allegations,
and reserved jurisdiction regarding restitution.
During a restitution hearing in August 2010, the trial court reviewed a restitution
memo prepared by the San Bernardino County Probation Department. The restitution
memo stated that victim T.F. Hernandez incurred a loss of $70 caused by defendant’s
criminal acts. Hernandez informed the investigating probation officer that he sustained
other losses as well, which he had not yet ascertained. The memo further stated that
Arrowhead Credit Union was demanding that All Star Auto Sales pay Arrowhead Credit
Union $28,000 for a vehicle defendant had fraudulently purchased through financing
provided by Arrowhead Credit Union (count 26). The memo stated that the probation
department had not yet ascertained the other victims’ losses.
On August 5, 2010, the trial court awarded $70 in restitution to T.F. Hernandez,
who was named as the victim in several counts alleging false personation and identity
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theft (counts 4-5, 12-13, 18-19, and 24-25). The trial court also awarded $28,000 in
restitution to Arrowhead Credit Union.
In November 2014, after the passage of Proposition 47, defendant, in propria
persona, filed a petition for writ of habeas corpus, deemed by the trial court to be a
petition for resentencing. Defendant was in custody at the time he filed his petition.
Defendant alleged in the petition that under Proposition 47 he was entitled to have his
felony convictions reduced to misdemeanors. On January 9, 2015, the trial court denied
defendant’s petition. The court found defendant did not satisfy the requisite criteria for
resentencing under section 1170.18 and was not eligible for resentencing. Counsel
confirmed the trial court ordered $28,000 in victim restitution. The trial court stated this
made defendant ineligible for resentencing.
On April 3, 2015, the trial court held a hearing on a second petition for
resentencing filed by defendant. The trial court denied the second petition, finding that
defendant did not satisfy the criteria required by section 1170.18 and was not eligible for
resentencing, “[d]ue to the nature of the charges.” The record on appeal does not contain
a second petition filed before the hearing on April 3, 2015. After the hearing, defendant
filed in the trial court a petition dated April 27, 2015, entitled a “petition for writ of
habeas corpus.” This court and the trial court deemed the petition a notice of appeal of
the April 3, 2015 ruling denying resentencing. The April 27, 2015 document was filed on
May 11, 2016 in the trial court and on May 29, 2015, in this court. In the notice of
appeal, defendant alleges he is entitled to resentencing as to counts 2 and 10, in which he
was convicted of violating section 470b (possession of a forged driver’s license).
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III
APPLICABLE LAW REGARDING PROPOSITION 47
On November 4, 2014, California voters passed Proposition 47, which went into
effect the next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain
drug- and theft-related offenses misdemeanors, unless the offenses were committed by
certain ineligible defendants. These offenses had previously been designated as either
felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).”
(People v. Rivera (2015) 233 Cal. App. 4th 1085, 1091.) In addition, Proposition 47 added
section 459.5, which classifies shoplifting property not exceeding $950 as a
misdemeanor, and reduced certain felonies for forgery to misdemeanors, where the value
of the forged financial instrument does not exceed $950 (§§ 496, subd. (a), 473, subd.
(b)). “Proposition 47 also created a new resentencing provision: section 1170.18. Under
section 1170.18, a person ‘currently serving’ a felony sentence for an offense 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.” (Rivera, at p. 1092.)
Defendant has the burden of proof as to establishing that the value of the property
at issue does not exceed $950. (People v. Sherow (2015) 239 Cal. App. 4th 875, 878,
880.) We review the trial court’s legal conclusions de novo and its findings of fact for
substantial evidence. (People v. Perkins (2016) 244 Cal. App. 4th 129, 136.)
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IV
DISCUSSION
Defendant contends the trial court abused its discretion in denying his petition for
resentencing as to counts 1, 9, 15, and 16. Counts 1, 9, and 15 are for commercial
burglary (§ 459), consisting of allegedly entering a car sales business, with intent to
commit a felony; presumably, that of fraudulently purchasing a vehicle. Count 16 alleges
possession of a forged driver’s license (§ 470b), committed by defendant unlawfully
displaying a forged driver’s license and identification card with intent to use the
documents to facilitate the commission of a forgery. We conclude the trial court
appropriately denied defendant’s resentencing petition.
Defendant argues his commercial burglary convictions (counts 1, 9, and 15)
qualify under section 459.5 as misdemeanor shoplifting offenses, and his section 470b
conviction for possession of a forged driver’s license (count 16) qualifies as misdemeanor
forgery under section 473, subdivision (b). Defendant asserts that the restitution memo
establishes that the value of the property at issue in counts 1, 9, 15, and 16 does not
exceed $950. Defendant correctly notes that the $28,000 restitution award did not
involve the crimes charged in counts 1, 9, 15, and 16, and therefore did not disqualify
those counts from resentencing. Nevertheless, defendant has not met his burden of
proving that the value of the property at issue in counts 1, 9, 15, and 16 did not exceed
$950. Defendant did not present any supporting evidence and the record of conviction,
including the restitution memo, does not establish the value of the property at issue in any
of these counts.
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There are several other reasons why defendant cannot prevail on his appeal of the
trial court’s ruling on April 3, 2015, denying his resentencing petition. The record on
appeal does not include defendant’s second petition for resentencing, which is the subject
of this appeal. Defendant did not appeal the trial court’s denial on January 9, 2015, of his
first petition for resentencing. The instant appeal was filed in May 2015, and appeals the
April 3, 2015 ruling. There is a document, entitled “petition for writ of habeas corpus,”
which is similar to defendant’s original petition for resentencing (also entitled “petition
for writ of habeas corpus”) but the document is dated signed on April 27, 2015, and was
filed on May 11, 2016, well after the April 3, 2015 hearing. Furthermore, the trial court,
as well as this court, deemed the April 27, 2015 document a notice of appeal of the April
3, 2015 ruling denying resentencing.
Even assuming the April 27, 2015, document was submitted before the April 3,
2015 hearing, and the trial court deemed it a resentencing petition and denied it during
the April 3, 2015 hearing, the April 27, 2015 document does not request resentencing as
to counts 1, 9, 15, or 16. It only requests resentencing as to counts 2 and 10.
Furthermore, defendant’s appeal does not challenge the trial court’s ruling on counts 2 or
10.
Another significant problem with defendant’s appeal is that the record on appeal
indicates that defendant never pled guilty or was convicted of counts 15 and 16.
Therefore, there is no basis for resentencing as to those counts.
Defendant has not established that the trial court abused its discretion on April 3,
2015, when it denied defendant’s petition for resentencing.
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V
DISPOSITION
The order on April 3, 2015, denying defendant’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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