Filed 5/27/16 P. v. Moultrie CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
          Plaintiff and Respondent,
                                                                     A144667
v.
RAY EARL MOULTRIE,                                                   (Contra Costa County
                                                                     Super. Ct. No. 1-157718-8)
          Defendant and Appellant.


          Defendant pleaded no contest to two felony counts of receiving stolen property in
violation of Penal Code section 496, subdivision (a).1 After California voters passed
Proposition 47, which among other things converted the crime of receiving stolen
property to a misdemeanor where the value of the stolen property did not exceed $950
(§§ 496, subd. (a), 490.2, subd. (a)), defendant petitioned for resentencing (§ 1170.18).
The trial court denied his petition, finding that defendant had not established his
eligibility for the reduction of his offenses to misdemeanors. Defendant appeals, and we
affirm.
                                        FACTUAL BACKGROUND
          By felony complaint filed April 2, 2012, defendant was charged with two counts
of receiving stolen property in violation of section 496, subdivision (a), property
identified in the complaint as copper wire owned by John Muir Medical Center.


          1
              All subsequent statutory references are to the Penal Code except where otherwise
noted.


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       On October 24, 2012, pursuant to a negotiated plea agreement, defendant pleaded
no contest to the two felony charges in exchange for two years probation with 174 days in
county jail and credit for 158 days. His probation was subsequently revoked after he
failed to report to probation on multiple occasions and it was discovered that he had been
arrested at least twice and failed to report those arrests to the probation department.
       On March 11, 2015, after defendant had completed his sentence, he filed a petition
to have his felony convictions designated misdemeanors pursuant to section 1170.18,
subdivision (f). The petition provided in its substantive entirety as follows:
       “(1) Ray Earl Moultrie was convicted of a felony violation of 496(a) (two counts)
on October 24, 2012 in Docket 1-157718-8. Mr. Moultrie was sentenced to 174 days.
       “(2) Mr. Moultrie has completed his/her sentence in Docket(s) 1-157718-8.
       “(3) Had ‘The Safe Neighborhoods and Schools Act’ been in effect at the time
Mr. Moultrie committed the above offenses, he/she would have been convicted of a
misdemeanor, rather than a felony.
       “Because requirements of Penal Code 1170.18(f) are met, Mr. Moultrie’s
application for designation as misdemeanor(s) must be granted.”
       Defendant’s petition came on for hearing on March 20, 2015. The hearing was
brief, with the argument consisting only of the following exchange:
       “MR. MAHALICH [the prosecutor]: I believe this one we were trying to
determine the value. I don’t know if Ms. McDonnell was able to get any further
information.
       “MS. MCDONNELL [counsel for defendant]: We were. And I reviewed—last
week I didn’t have the information from the court file. I reviewed all that I could from
the court file, as I know that the Court did last week. All it reflects is a value of $0 for
stolen and recovered property. It doesn’t appear anyone inputted an amount.
       “And there are photographs of boxes of copper wire. There is no amount. It
appears that a restitution letter was sent a very long time ago. I believe it was May of
2012, per the bail study, that the restitution letter was mailed to the manager of the lot.



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I didn’t see that anything had come back, and I know the Court, as well, looked last week
and that was everyone’s understanding.
       “So given that, it’s still our position the Court should either grant the petition or
set this for a hearing. The—it’s our position that given that the facts are uniquely in the
possession of the district attorney, it is their witness, it was their filing, that at least
there’s a prima facie requirement that they show what—that the amount is over $950
given that they’re objecting. And, as I said earlier, this wasn’t charged as a grand theft.
There was never any sort of restitution hearing or finding. And we believe the burden
should be on the prosecution to show that the loss exceeds that amount. And short of
that, the Court should grant the petition.
       “MR. MAHALICH: I think we’ve already plowed this field with the burden, and I
think the Court has already ruled. So I don’t need to respond to that portion of the
argument. I’m willing to submit to the Court and what the Court wants to do on this
matter based on the information that’s been provided by Ms. McDonnell.
       “I don’t know if we know anything more than we did last time but—
       “THE COURT: We don’t, and there was a lot of damage done in taking out this
copper wire. [¶] . . . [¶]
       “ . . . I can only say I did a lengthy restitution hearing on the theft of copper wire
in a case with one of your colleagues, and it’s the damage that’s done in getting the
copper wire out that’s the biggest problem. And that can be tens of thousands of dollars,
given, you know, what’s damaged.
       “And from this—from the photographs, you know, there was a fair amount of wire
taken. There was, like, big bankers’—plastic bankers’ boxes full of copper wire
photographed here, and the police reports indicate that there was a locked electrical box
that had been there before the thefts and no longer was there.
       “So I guess I’m on the fence about this, but I’m just—I don’t think that this is the
kind of situation—the kind of theft that the voters had in mind when they passed
Proposition 47. You know, Proposition 47 was marketed, so to speak, that it was for



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shoplifters and people who—straight possession of drugs. This is not a shoplifting case,
by any stretch of the imagination.
       “So just based on, you know, an interpretation of Prop 47, what it was intended
for, I would deny it. But if you want to withdraw it, that’s fine too.
       “MS. MCDONNELL: I would ask that the Court take notice of the police reports
in its file for the purpose of this hearing, which I know you’ve reviewed. Just officially I
would ask for that ruling, and we’ll submit on the petition.
       “THE COURT: Okay. I’m going to deny it. I mean, just looking at the
photographs that were attached to the police reports, like I said, there is in the photograph
three large-sized bankers’ boxes overflowing with copper wire. So I’ll deny the
petition.”
       Defendant timely appealed.
                                       DISCUSSION
       On November 4, 2014, voters approved Proposition 47, the Safe Neighborhood
and Schools Act, which became effective November 5, 2014. (People v. Rivera (2015)
233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related
crimes from felonies or wobblers to misdemeanors for qualified defendants and added,
among other statutory provisions, sections 1170.18 and 490.2.2 Section 1170.18 creates a
process permitting persons previously convicted of crimes as felonies, which might be
misdemeanors under the new definitions in Proposition 47, to petition for resentencing.
Under sections 1170.18, subdivision (a), and 490.2, receiving stolen property (§ 496,
subd. (a))3 is an offense that qualifies for resentencing if the value of the property is less


       2
         Section 490.2, subdivision (a), 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 . . . .”
       3
        After Proposition 47, section 496, subdivision (a), was amended to read: “Every
person who buys or receives any property that has been stolen or that has been obtained
in any manner constituting theft or extortion, knowing the property to be so stolen or
obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding

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than $950. Section 1170.18, subdivision (f) provides: “A person who has completed his
or her sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial court that entered the
judgment of conviction in his or her case to have the felony conviction or convictions
designated as misdemeanors.” And subdivision (g) provides that “If the application
satisfies the criteria in subdivision (f), the court shall designate the felony offense or
offenses as a misdemeanor.”
       As noted, defendant unsuccessfully petitioned for resentencing in accordance with
Proposition 47. He now contends that ruling was erroneous because the evidence failed
to show that the property he possessed was worth more than $950. We review a trial
court’s “legal conclusions de novo and its findings of fact for substantial evidence . . . .”
(People v. Trinh (2014) 59 Cal.4th 216, 236.) Applying this standard of review, we
conclude defendant’s argument is flawed.
       As a procedural matter, defendant’s argument incorrectly allocates the burden of
proof on the value of the stolen property to the prosecution. Section 1170.18 is silent on
this question, but as the People correctly argue here and argued below, defendant bore the
burden of establishing that the value of the stolen property did not exceed $950, as held
by People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow) and People v. Rivas-Colon
(2015) 241 Cal.App.4th 444 (Rivas-Colon).4
       In Sherow, supra, 239 Cal.App.4th 875, defendant had been convicted of nine
counts of second degree burglary and, on appeal, he challenged the trial court’s refusal to
resentence him on two of these counts. (Id. at p. 877.) He contended that the record did

any property from the owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment in a county jail for not more than one year, or imprisonment
pursuant to subdivision (h) of Section 1170. However, if the value of the property does
not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor . . . .”
       4
        Sherow and Rivas-Colon were filed on August 11, 2015 and October 16, 2015,
respectively. Defendant’s opening brief, which was filed on August 24, 2015, did not
acknowledge Sherow. In his reply brief, however, he attempts to distinguish both cases.


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not demonstrate that the loss on these counts exceeded $950 “and thus the two counts
should be resentenced as misdemeanors[,]” and that the prosecution had the burden of
proving he was not eligible for resentencing. (Id. at pp. 877–878.)
       The Fourth District observed that Proposition 47 does not explicitly allocate a
burden of proof. (Sherow, supra, 239 Cal.App.4th at p. 878.) The court pointed out, “As
an ordinary proposition: ‘ “[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.” ’
[Citations.]” (Id. at p. 879.) The court held that the petitioner “must establish his or her
eligibility” for such relief and has the “initial burden of proof” to “establish the facts
upon which his or her eligibility is based.” (Id. at pp. 878–880.) In making such a
showing, “[a] proper petition could certainly contain at least [the petitioner’s] testimony
about the nature of the items taken.” (Id. at p. 880.)
       In Rivas-Colon, supra, 241 Cal.App.4th 444, our Division Five colleagues cited
Sherow, supra, 239 Cal.App.4th 875, when rejecting the defendant’s argument that the
prosecution had the burden of establishing the value of the property exceeded $950.
(Rivas-Colon, at p. 449.) The defendant in Rivas-Colon had stipulated to a factual basis
for the plea contained in the police report, which listed the value of the property he
removed from a store as $1,437.74. (Id. at p. 447.) The appellate court explained that the
defendant had not provided any evidence or argument demonstrating that he was eligible
for resentencing and therefore the trial court properly denied his resentencing petition.
(Id. at p. 449–450.)
       We agree with the reasoning in both Sherow and Rivas-Colon. These courts’
analyses are consistent with the well-established rule set forth in Evidence Code section
500, which reads: “Except as otherwise provided by 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 that he is asserting.” (See also People v. Atwood (2003) 110 Cal.App.4th 805,
812 [under Evidence Code section 500, “[t]he burdens of producing evidence and of
persuasion flow from a party’s status as a claimant seeking relief”]; People v. Barasa
(2002) 103 Cal.App.4th 287, 295–296 [under Evidence Code section 500, defendant has


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the burden of proving that his drug possession or transportation was for personal use and
that he was therefore eligible for sentence reduction under Proposition 36].)
       Here, defendant is the party who petitioned for relief, and therefore he had the
initial burden of demonstrating eligibility under section 1170.18, subdivision (a). (See
also People v. Perkins (2016) 244 Cal.App.4th 129, 136–137 [following Sherow and
Rivas-Colon].)
       Defendant alternatively contends that even if he bore the burden of proving the
value of the stolen property, he satisfied that burden. Substantial evidence supports the
trial court’s finding that he did not.
       Defendant claims that “the value of the ‘stolen and recovered property’—copper
wires—was determined to be ‘$0.’ ” That is a less than candid representation of the
record. As defendant’s counsel noted at the hearing on his petition, the court file
“reflects . . . a value of $0 for stolen and recovered property. It doesn’t appear anyone
inputted an amount.” Not inputting a value for the stolen property is a far cry from
having determined that the property had no value. And the interpretation defendant
advocates is contradicted, first, by common sense (why would someone go to the trouble
of stealing copper wire if it lacked value?) and, second, by the pictures of three bankers’
boxes overflowing with copper wiring (depicting, as the court noted, “a fair amount of
wire”).
       Defendant also contends that the absence of a claim for restitution is “indicative of
the property’s minimal value.” There are countless reasons why a crime victim may not
submit a claim for restitution, and we will not speculate that the reason here was because
the property lacked value.
       Finally, defendant urges that if we conclude he bore the burden of establishing his
eligibility for resentencing under section 1170.18 and further conclude he did not satisfy
that burden, we should affirm the trial court’s denial of his petition “without prejudice to
subsequent consideration of a properly filed petition,” as was done in Sherow, supra, 239
Cal.App.4th at p. 881. Such a remedy has been employed where there was uncertainty at
the time the petition was filed as to which party bore the burden of proof. (Ibid.) While


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defendant’s petition predated Sherow, the trial court here nonetheless applied the proper
burden of proof. The Sherow disposition is thus inapplicable.
                                     DISPOSITION
      The order denying defendant’s petition for resentencing is affirmed.


                                                        _________________________
                                                        Richman, J.


      We concur:


      _________________________
      Kline, P.J.


      _________________________
      Stewart, J.




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