Filed 2/22/16 P. v. Saetern CA1/1
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FIRST APPELLATE DISTRICT

                                             DIVISION ONE


THE PEOPLE,                                                         A144232
         Plaintiff and Respondent,
v.                                                                  (Contra Costa County
KIM SAETERN,                                                        Super. Ct. No. 02-31271-80)

         Defendant and Appellant.


                                           INTRODUCTION
         In this case, the trial court erroneously denied defendant’s petition for
resentencing under the Safe Neighborhoods and Schools Act (Prop. 47, as
approved by voters, Gen. Elec. (Nov. 4, 2014) (the Act)) for the stated reason he
was convicted by negotiated plea. (Pen. Code, § 1170.18;1 T.W. v. Superior Court
(2015) 236 Cal.App.4th 646 (T.W.) Defendant argues this error entitles him to
relief under the statute because the prosecution bore the burden of proving he
received stolen property worth more than $950, and the record does not establish
that fact. Alternatively, he argues this court should remand the matter for a
hearing to determine defendant’s eligibility for relief.
         In our view, it was defendant’s burden, as the petitioner, to establish he was
entitled to relief by meeting the $950 or less threshold requirement, as well as
other requirements under the statute. Since he failed to carry that burden, he is not


1
    Unless otherwise indicated, all further statutory references are to the Penal Code.
entitled to resentencing under section 1170.18. However, because the court short-
circuited the petition process by its ruling, we will reverse and remand for a
hearing on defendant’s entitlement to relief and for correction of errors in the
imposition of fees. Because defendant is not entitled to resentencing at this
juncture, defendant’s contentions regarding modification of parole and credit for
time are premature, and we do not reach them.
                  STATEMENT OF THE FACTS AND CASE2
       On January 25, 2013, El Cerrito police officer Wong followed a van listed
as stolen out of Richmond. The van stopped and picked up two men. Following a
felony stop, three men, defendant included, were detained and the van was
searched. Several stolen items, including several bags of foreign currency and
several pieces of jewelry, were found inside. After interviewing the owner of the
van, police received a call from the victim of a home burglary. She viewed
photographs of the items found in the van and identified the items as hers.
       The Contra Costa County District Attorney charged defendant Kim Saeturn
and two others by complaint with first degree residential burglary (count 1) and
two counts of receiving stolen property: a stolen vehicle (count 3), and jewelry
and coins (count 4). (§§ 459/460, subd. (a); 496d; 496, subd. (a).) The complaint
also alleged defendant had previously suffered a serious and violent felony for
burglary and served a prior prison term for receiving stolen property. (§§ 667,
subds. (a), (b)–(i); 667.5, subd. (b).)
       Following a preliminary hearing, the codefendants were held to answer on
all counts, plus one additional count not involving defendant (count 2). On
April 2, 2014, defendant waived preliminary hearing and pleaded no contest to

2
  Because defendant was convicted by plea, our factual summary is drawn from
the probation report which, in turn, drew from the police report.


                                          2
count 4, receiving stolen property consisting of coins and jewelry. He was
sentenced the same day to two years in state prison.
       On November 12, 2014, defendant, through counsel, filed a petition for
recall of sentence and request for resentencing pursuant to section 1170.18.3 On
December 17, 2014, the court granted defendant’s counsel’s request to join and
incorporate by reference the petition and reply briefs filed by the Contra Costa
County Public Defender on behalf of all persons convicted by plea agreement who
seek relief under section 1170.18. Those briefs solely addressed the question, then
unsettled, whether section 1170.18 applies to convictions by plea.
       On December 19, 2014, the court denied defendant’s petition for relief on
the ground that “where there was a plea bargain where non-Prop. 47 eligible
crimes were dismissed in exchange for a plea to what is now a Prop. 47 eligible
crime, that Prop. 47 does not apply.” The court took judicial notice that the
information in defendant’s case charged him with a residential burglary, which is
“clearly not a Prop. 47 eligible offense.” The court indicated its ruling, which was
issued the previous week in the lead case of People v. Broadway (Super. Ct.
Contra Costa County, 2014, No. 5-131718-9) was not open to relitigation.
Defendant timely appealed in January 2015.



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  The petition states: “The grounds for the application are as follows: [¶] (1) KIM
SAETURN was convicted of a felony violation of Penal Code § 496(a) on April 2,
2014 in Docket 312718-0. [¶] (2) KIM SAETURN was sentenced to 2 years State
Prison, with 60 days CTS. [¶] (3) KIM SAETURN is currently serving a sentence
for the above-listed conviction(s) in Kern Valley State Prison . . . . [¶] (4) Had the
“The Safe Neighborhoods and Schools Act” been in effect at the time KIM
SAETURN was convicted of and sentenced for the above offenses, he/she would
have been convicted of a misdemeanor, rather than a felony. [¶] (5) Because
requirements of Penal Code section 1170.18(a) are met, KIM SAETURN is
entitled to a recall of his/her felony sentence and a resentencing as a
misdemeanor.”
                                          3
                                   DISCUSSION
       Defendant argues he was not disqualified from requesting relief under
section 1170.18 by virtue of his conviction by plea bargain. The Attorney General
agrees, and we concur. “On November 4, 2014, the voters enacted Proposition 47,
the Safe Neighborhoods and Schools Act (hereafter Proposition 47), which went
into effect the next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera
(2015) 233 Cal.App.4th 1085, 1089.) Section 1170.18 “was enacted as part of
Proposition 47.” (Rivera, at p. 1089.) Section 1170.18 provides a mechanism by
which a person currently serving a felony sentence for an offense that is now a
misdemeanor may petition for a recall of that sentence and request resentencing in
accordance with the offense statutes as added or amended by Proposition 47.
(§ 1170.18, subd. (a).) A person who satisfies the criteria in subdivision (a) of
section 1170.18 shall have his or her sentence recalled and be “ ‘resentenced to a
misdemeanor . . . unless the court, in its discretion, determines that resentencing
the petitioner would pose an unreasonable risk of danger to public safety.’
([§ 1170.18], subd. (b).)” (T.W., supra, 236 Cal.App.4th at p. 649, fn. 2.)
       On April 21, 2015, a few months after the rulings by members of the
Contra Costa County bench in this case and in T.W., this court held that similar
persons convicted of a Proposition 47-eligible offenses by plea are entitled to
request relief under section 1170.18. (T.W., supra, 236 Cal.App.4th at p. 653.)
This court issued a peremptory writ of mandamus directing the superior court to
vacate its order denying T.W.’s petition for recall of sentence. Because its ruling
prevented the court from reaching “the issue of whether T.W. would pose an
unreasonable risk of danger to public safety (see § 1170.18. subd. (b)),” the matter
was remanded to the trial court for a hearing to determine whether T.W.’s
maximum term should be reduced pursuant to section 1170.18, subdivision (b).
(T.W., at p. 649.)
                                           4
       Section 1170.18, subdivision (a) specifies that section 496, as amended or
added by the Act, is an eligible offense. Section 496, in turn, specifies that a
violation of that statute shall be punishable as a misdemeanor “if the value of the
property does not exceed nine hundred fifty dollars ($950).” (Pen. Code, § 496,
subd. (a).) Section 1170.18 does not state which party bears the burden of proof
on a petition for resentencing under that section. Defendant argues the court’s
error below entitles him to relief because the prosecution had the burden of
showing the stolen property was worth more than $950, and it did not carry that
burden. We disagree. For the reasons stated in greater detail in People v. Sherow
(2015) 239 Cal.App.4th 875 (Sherow) and People v. Rivas-Colon (2015)
241 Cal.App.4th 444 (Rivas-Colon), we agree with those opinions that the
defendant bears the burden of proving he is eligible for resentencing. As noted in
Sherow, under California law “ ‘ “[a] party has the burden of proof as to each fact
the existence or nonexistence of which is essential to the claim for relief or
defense he is asserting.” ’ ” (Sherow, at p. 879, citing Vance v. Bizek (2014)
228 Cal.App.4th 1155, 1163, fn. 3; Evid. Code, § 500; see People v. Barasa
(2002) 103 Cal.App.4th 287, 295–296.) Under Proposition 47, the value of the
stolen property received—$950 or less—is a fact essential to entitlement to relief
under section 1170.18.
       We also disagree the presumption of innocence is implicated in
Proposition 47 proceedings. “The difficulty with a due process argument based on
the prosecutor’s burden of proof in the initial prosecution for an offense is that the
resentencing provisions of Proposition 47 deal with persons who have already
been proved guilty of their offenses beyond a reasonable doubt. Under this
remedial statute, a petitioner is claiming the crime for which the person has been
convicted would be a misdemeanor if tried after the enactment of the proposition.”
(Sherow, supra, 239 Cal.App.4th at p. 880.) “The question presented by [a]
                                          5
resentencing petition [is] not whether to increase the punishment for [the
petitioner’s] offense, but whether he was eligible for a potential reduction of his
sentence.” (Rivas-Colon, supra, 241 Cal.App.4th at p. 451.)
       Finally, we do not agree that resentencing under Proposition 47 is a “whole
other animal” from petitions for collateral relief by habeas or mandamus.
Proposition 36, like Proposition 47, does not explicitly allocate a burden of proof.
(Sherow, supra, 239 Cal.App.4th at p. 878.) Yet, under section 1170.126,
subd. (e), an inmate must demonstrate he or she meets the eligibility criteria for
consideration, i.e., that “none of his or her current commitment offenses
constitutes serious or violent felonies and none of the enumerated factors
disqualifying an inmate for resentencing under the Reform Act applies.” (People
v. Brown (2014) 230 Cal.App.4th 1502, 1510.) Similarly, under section 1203.4,
the petitioner must show his convictions are eligible for dismissal under the
statute. (People v. Smith (2014) 227 Cal.App.4th 717, 723.)
       In this case, defendant not only failed to demonstrate the stolen property at
issue was worth $950 or less; unlike T.W. (T.W., supra, 236 Cal.App.4th 646), he
also failed even to plead that fact. The fact the trial court incorrectly decided
relief under section 1170.18 was precluded by defendant’s plea would not bar us
from affirming the trial court’s denial of the petition on the ground defendant did
not carry either his pleading or his evidentiary burden. However, we are cognizant
that at the time defendant’s petition was heard, the statute was new, and the Contra
Costa County Superior Court bench had apparently taken the erroneous view that
no defendants who entered pleas to Proposition 47-eligible offenses were entitled
to petition for resentencing. While we do not condone the sloppy pleading in this
case, under these circumstances, we agree with defendant that the court’s
categorical error effectively deprived him of any meaningful hearing on his
petition, including on the question whether the stolen property at issue was worth
                                          6
$950 or less. This disposition effectuates Proposition 47’s stated purpose of
reducing penalties “for certain nonserious and nonviolent property and drug
offenses from wobblers or felonies to misdemeanors,” including receiving stolen
property. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by the
Legis. Analyst, p. 35, boldface & italics omitted.) We will therefore reverse and
remand for a hearing on whether defendant is eligible for resentencing and, if he
is, whether he is entitled to resentencing under 1170.18, subdivision (b). (T.W.,
supra, 236 Cal.App.4th at p. 649.)4
       In light of our disposition, we do not reach defendant’s claims about parole
and credit for time served.
       The parties agree, and we concur, that since he was convicted of one
offense, the conviction assessment fee (Gov. Code, § 70373, subd. (a) (1)) should
have been $30 instead of $60, and the court operations assessment fee (§ 1465.8,
subd. (a)(1)) should have been $40 instead of $80. We will order the court to
modify the abstract of judgment accordingly.
                                 DISPOSITION
       The order denying defendant’s petition pursuant to Penal Code section
1170.18 is reversed, and the matter is remanded for a new hearing on a correctly
pleaded petition. The court is ordered to modify the abstract of judgment to reflect
a $30 conviction assessment fee and $40 court operations assessment fee.




4
  Remand to permit defendant to establish in his petition the property he possessed
in violation of section 496 was $950 or less was also employed in two recent
decisions of the California Court of Appeal. (See People v. Ortiz (2016)
243 Cal.App.4th 854 and People v. Perkins (2016)___Cal.App.4th___(2016 WL
297309).)
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                                _________________________
                                DONDERO, J.


We concur:


_________________________
HUMES, P.J.


_________________________
BANKE, J.




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