P v. Abarca & P v. Hudson (4th Dist., Div 2 & 1): More PC 1170.18 Analysis From the Fourth District

As we approach the November 2016 election with its own host of voter initiatives, California's appellate courts continue to disagree as to the fruits of the November 2014 election, to wit, Proposition 47.

Proposition 47 was passed on November 4, 2014, and went into effect the next day.  California trial courts were, understandably, unprepared for the deluge of petitions that followed.  Admirably, many trial courts created mandatory forms for PC 1170.18 petitioners.  Unfortunately, some subsequent appellate opinions held that the information required to complete these mandatory forms was insufficient to establish eligibility for relief under PC 1170.18.  Some trial courts ruled on these petitions without a hearing, some held hearings.  Some of the courts that held hearings admitted only evidence that complied with the evidence code, other courts admitted evidence clearly inadmissible under the evidence code.  

It would be nice to say that California's appellate courts quickly addressed these procedural issues and provided much needed guidance to the trial courts.  But I cannot (here) tell a lie.

Take the first case.  Prior to November 5, 2014, Mr. Abarca walked into a bank and tried to cash a check he had forged in the amount of 300 dollars.  He pleaded guilty to felony commercial burglary and received a five year sentence.  In December 2014, Arbarca petitioned under PC 1170.18 to have his felony burglary conviction reduced to a misdemeanor because his conviction for commercial burglary would have necessarily have been a misdemeanor shoplift, per PC 459.5, had it occurred after November 4, 2014. He used a form created by the trial court which he signed under penalty of perjury.  In response, the State opposed the petition on the ground that a bank was not a "commercial establishment".  The trial court examined the arrest warrant in its file and granted the petition.  It then graciously have both sides 10 days to file additional arguments they wished to preserve for appeal.  The State did not file anything prior to its appeal.

Division one of the Fourth District affirms.  

The panel rejects the argument that a bank is not a commercial establishment, a term it holds encompasses businesses that sell goods and (financial) services.  The State then tries to argue that Abarca's petition was deficient in that it did not constitute a facial showing of eligibility for PC 1170.18 relief.  The panel rejects this on the basis that the State did not make this argument in the trial court.  Recall the only argument advanced by the State was that a bank was not a "commercial establishment.  

Constrast this with Mr. Hudson's case.  Hudson walked into a bank and, posing as someone else, tried to cash a forged check.  For this he pleaded guilty to felony commercial burglary and was sentenced to five years.  Following the passage of Proposition 47, Hudson petitioned the trial court under PC 1170.18 to reduce his commercial burglary conviction to a misdemeanor, alleging the crime would have been one of misdemeanor shoplifting after the passage of Proposition 47.  After consulting a post-plea probation report, the trial court denied the petition for two reasons.  First, according to the trial court, a bank is not a "commercial establishment", and second, Hudson intended to steal more than 950 dollars when he walked into the bank.  Hudson appealed.

Division two of the Fourth District affirms.

This panel holds that a bank is a "commercial establishment" and thus does not affirm on this ground.  It affirms on the basis that Hudson did not carry his burden to show the the bank was open when he tried to cash the forged check and that he failed to show the amount of the check was under 950 dollars.  Apparently the record was silent on these issues and since Hudson had the burden, such silence means Hudson loses.   

Neither opinion is demonstrably inconsistent with the text of Proposition 47.  A reader does wonder why the panels feel these opinions should be published.  Does either opinion really provide any succor to a trial court looking for procedural guidance in handling PC 1170.18 petitions?  Does it clarify the proof required in the pleading stage?  For instance, does a signature under penalty of perjury reciting the elements of shoplifting pass muster?  Do the rules of evidence apply at a hearing on the petition?  If not, is there any limitation on what evidence may be received?  For answers to these questions we must wait.