People v. Neisinger CA2/6

Filed 4/18/16 P. v. Neisinger CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B265470
(Super. Ct. No. F474372)
Plaintiff and Respondent, (San Luis Obispo County)
v.
PATRICK CURTIS NEISINGER,
Defendant and Appellant.
Patrick Curtis Neisinger appeals an order denying his petition for
resentencing under the Safe Neighborhoods and Schools Act ("Proposition 47" or "the
Act"). (Pen. Code, § 1170.18.)1 We conclude, among other things, that the trial court
properly denied Proposition 47 relief because the items involved in his prior receiving
stolen property offense (§ 496, subd. (a)) exceeded $950 in value (§ 490.2). We affirm.
FACTS
In an information, the People alleged that on May 17, 2012, Neisinger
committed the offense of receiving stolen property (§ 496, subd. (a)) by receiving
“watches, jewelry, coins, bank book, belt buckles, pins, and knives.” No value was
alleged for these items in the information. Neisinger pled no contest to receiving the
stolen property as alleged in that information.
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All statutory references are to the Penal Code.
In 2014, Neisinger filed a petition under Proposition 47. He claimed his
receiving stolen property offense should be reduced from a felony to a misdemeanor.
At the hearing on the petition, the trial court said the issue was whether or
not the value of the items involved in Neisinger’s prior receiving stolen property offense
exceeded the Proposition 47 limit of $950. (§ 490.2.) The court asked Neisinger’s
counsel if Neisinger would be presenting “any evidence” on the value of that property.
His counsel responded “no” and he objected to the court taking any evidence on that
issue. He said, “[T]here never was a listed value in any of the discovery, in any
sentencing memorandums, in probation reports the court received. So I think, therefore,
Mr. Neisinger is permitted to rely on lack of value to bring his Prop 47 relief motion.”
The trial court disagreed and overruled the objection. It placed the burden
on the People to present evidence at the hearing.
The prosecutor called Arthur Keith Hamilton, an expert in appraising
jewelry. He testified that the total value of the stolen items was $2,450.70. One of the
items was a woman’s ring worth $700, another was a man’s ring worth $990.
The trial court found Hamilton's testimony to be credible. It ruled that the
value of the stolen property exceeded $950. It denied the petition.
DISCUSSION
Proposition 47
Neisinger contends the trial court erred by denying his Proposition 47
petition. He claims: 1) the People had the burden of proof on the value of the stolen
property; 2) the only admissible evidence about that value was in the record of his 2012
conviction; and 3) because the “charging document” for his prior offense did not list a
value of the stolen items, his petition should have been granted. We disagree.
Proposition 47 makes certain drug- and theft-related offenses
misdemeanors, unless the offenses were committed by certain ineligible defendants.
(§ 1170.18; Prop. 47, §§ 3, 14.) These offenses had previously been designated as
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felonies. A person previously convicted of such felonies may petition the court for a
recall of that sentence and request resentencing in accordance with the statutes that were
added or amended by Proposition 47. (§ 1170.18; Prop.47, §14; People v. Rivas-Colon
(2015) 241 Cal.App.4th 444, 448.)
Proposition 47 added section 490.2. It provides, “Notwithstanding Section
487 or any other provision of law defining grand theft, obtaining any property by theft
where the value of the money, labor, real or personal property taken does not exceed nine
hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a
misdemeanor . . . .” (§ 490.2, subd. (a).)
Neisinger, as a Proposition 47 petitioner, had the burden of proof to show
the facts demonstrating his eligibility for relief. (People v. Sherow (2015) 239
Cal.App.4th 875, 877.)
Neisinger notes that the charging document for his prior offense listed the
stolen items, but it did not list a value for them. That is correct, however, it does not
change the result. Neisinger as the Proposition 47 petitioner had the burden to prove that
the value of the stolen property did not exceed $950. (People v. Sherow, supra, 239
Cal.App.4th at p. 877.) He had an opportunity to make such a showing in the trial court.
But he decided to present no evidence on the value of the items at the hearing. For that
reason alone, the trial court could properly deny his petition. (People v. Rivas-Colon,
supra, 241 Cal.App.4th at pp. 449-450; People v. Sherow, supra, 239 Cal.App.4th at
p. 880.)
Moreover, here the trial court switched the burden of proof and required the
People to present evidence on the value of the stolen items. At the hearing on the
Proposition 47 petition, the People presented expert testimony showing that the items in
question were worth far in excess of $950. The People’s evidence was uncontradicted.
Neisinger has made no showing on appeal to demonstrate that the court’s factual finding
on value was incorrect. There was no error.
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The order denying Neisinger’s Proposition 47 petition is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Melissa L. Camacho-Cheung, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General,
for Plaintiff and Respondent.
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