California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County, No.
SCD202626 David J. Danielsen, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Becerra, Attorney General, and Adrian R. Contreras, Deputy
Attorney General, for Plaintiff and Respondent.
Soto appeals an order denying his petition to reduce to a
misdemeanor his felony conviction for theft from an elder.
(Pen. Code, § 368, subd. (d).) He sought relief under
section 1170.18, the Safe Neighborhoods and Schools Act,
which was enacted by California voters in November 2014
pursuant to Proposition 47. The trial court denied Soto's
petition on the basis that his conviction was categorically
ineligible for relief. Appointed appellate counsel filed a
brief pursuant to Anders v. California (1967) 386
U.S. 738 (Anders) and People v. Wende
(1979) 25 Cal.3d 436 (Wende), and Soto filed a
supplemental brief on his own behalf.
asked for supplemental briefing on whether Soto's
conviction under section 368, subdivision (d) was eligible
for reclassification under Proposition 47 following
People v. Page (2017) 3 Cal.5th 1175
(Page). Having reviewed the submissions, we conclude
Soto is ineligible for relief and affirm.
AND PROCEDURAL BACKGROUND
2006, Soto helped his grandmother change her telephone
service provider. While talking to the operator, he memorized
her birthdate and social security number. He later
impersonated his grandmother to obtain a new credit card on
her account in his name and used it to make unauthorized
retail purchases. Soto was charged with theft from an
elder of a value exceeding $400 (§ 368, former subd.
(d), added by Stats. 2004, ch. 893, § 1) and using the
personal identification of another (§ 530.5, subd. (a)).
December 2006, Soto pled guilty to section 368, subdivision
(d) and the People dismissed the remaining charge. Pursuant
to the terms of his plea agreement, Soto's conviction was
to be reduced to a misdemeanor once he paid full restitution.
At sentencing, the court suspended imposition of the sentence
and placed Soto on probation for three years, subject to
certain terms and conditions. It entered a "no
contact" order preventing further contact with the
victim and ordered Soto to pay $1, 822.05 in victim
restitution. It also imposed a $200 restitution fine and a
$200 probation revocation fine, stayed unless probation was
revoked. (§§ 1202.4, subd. (b), 1202.44.)
filed a pro per petition in April 2017 seeking
reclassification of his offense to a misdemeanor (§
1170.18, subd. (f)). His handwritten argument section was
three sentences long and stated simply that Proposition 47
converted felonies to misdemeanors. The court denied the
petition, deeming the underlying conviction under section
368, subdivision (d) categorically ineligible for
reclassification under section 1170.18.
appellate counsel filed a brief summarizing the facts and
proceedings before the trial court. Counsel presented no
argument for reversal but asked this court to review the
entire record for error in accordance with Wende,
supra, 25 Cal.3d 436. Pursuant to Anders,
supra, 386 U.S. 738, counsel identified the following
issue that might arguably support the appeal: "whether
the court erred as a matter of law in finding appellant's
conviction for violating Penal Code section 368, subdivision
(d), was ineligible for Proposition 47 relief, and if so,
whether the record supported a finding that his conviction
met the $950 or less statutory threshold."
filed a supplemental brief, in which he claimed he spent only
$822.05 on his grandmother's credit card, not $1, 822.05,
and asked us to review the purchases allegedly made. He also
argued that his family would be willing to write a letter
"to cancel" the civil judgment of "1, 822.05
asked counsel to submit supplemental briefs on the following
issues: "(1) Is Soto's conviction for theft from an
elder under Penal Code section 368 eligible for resentencing
under Penal Code section 1170.18? (Compare People v.
Bush (2016) 245 Cal.App.4th 992, 1001-1005 with
People v. Page (2017) 3 Cal.5th 1175.) (2) If the
conviction is eligible, did Soto's petition include
sufficient 'allegations, testimony, or record
references' for the trial court to determine his
eligibility for resentencing under Penal Code section
1170.18; if the present petition is insufficient, is Soto
'entitled to an opportunity to file a new petition
meeting the statutory requirements'? (See Page,
supra, 3 Cal.5th at p. 1189.)"
appellate counsel filed a letter brief arguing that Page,
supra, 3 Cal.5th 1175 requires reversal; the People
filed a brief taking the contrary view.
The Parties Agree That Soto's Petition Was
defendant seeking resentencing under section 1170.18 bears
the burden of establishing his or her eligibility, including
by providing in the petition a statement of personally known
facts necessary to eligibility." (Page, supra,
3 Cal.5th at p. 1188.) Defense counsel concedes that
Soto's petition was devoid of allegations, testimony, or
record references from which the trial court could determine
whether Soto was convicted of theft of a value $950 or less.
(Id. at p. 1189.) This information was also not
apparent from the record. During the plea soliloquy, Soto
admitted he obtained property "of a value over
$400" or "exceeding $400." The trial court
ordered victim restitution of $1, 822.05 but never made a
finding as to the value of property taken. Although Soto
claims on appeal he only spent $822.05, he never made
argument or presented relevant evidence to the trial court.
Because Soto did not meet his burden of proof to establish
his eligibility for Proposition 47 relief, his petition was
properly denied. (Ibid.)
real question presented by this appeal is whether we should
affirm the order denying Soto's petition to reduce his
offense to a misdemeanor with or without prejudice.
Page affirmed the denial of a petition without
prejudice because "the proper allocation of the burden
of proof and the facts necessary to resentencing on a Vehicle
Code section 10851 conviction were not set out expressly in
the text of Proposition 47, " and "neither had yet
been judicially articulated when defendant submitted his
petition for recall." (Page, supra, 3 Cal.5th
at p. 1189.) It concluded the defendant was "entitled to
an opportunity to file a new petition meeting the statutory
requirements" and explained that "[s]uch a ...