Filed 12/2/15 P. v. Hernandez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042042
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1350675)

             v.

JAIME CONTRERAS HERNANDEZ,

         Defendant and Appellant.




         Appellant Jaime Contreras Hernandez appeals from an order denying his petition
for resentencing under Proposition 47, the Safe Neighborhoods and Schools Act. On
appeal, appellant contends that the trial court erred in ruling that he was ineligible for
resentencing.
                                                   BACKGROUND
         On February 22, 2013, the Santa Clara County District Attorney filed a complaint
charging appellant with vehicle theft with a prior conviction (Veh. Code, § 10851,
subd. (a)/ Pen. Code, § 666.5), possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The
complaint alleged one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i)/1170.12)
and four prior prison terms (Pen. Code, § 667.5, subd. (b)).
       On June 5, 2013, appellant pleaded no contest to vehicle theft with a prior
conviction (Veh. Code, § 10851, subd. (a)/ Pen. Code, § 666.5) and resisting a peace
officer (Pen. Code, § 148, subd. (a)(1)). Appellant admitted one prior strike conviction
(Pen. Code, §§ 667, subds. (b)-(i)/1170.12) and four prior prison terms (Pen. Code,
§ 667.5, subd. (b)).
       At the sentencing hearing on August 20, 2013, the trial court sentenced appellant
to four years in prison for the vehicle theft and 30 days in county jail for resisting a peace
officer. The trial court struck the punishment for the prior prison terms pursuant to Penal
Code section 1385, and it dismissed the charge of possession of methamphetamine.
       On January 8, 2015, appellant filed a petition for resentencing under
Proposition 47 (Pen. Code, § 1170.18). The petition requested recall of the felony
sentence for the vehicle theft and resentencing as a misdemeanor.
       On February 17, 2015, the trial court denied appellant’s petition for resentencing.
In denying the petition, the trial court explained: “The defendant’s felony conviction in
Count One, a violation of Vehicle Code Section 10851, is not one of the offenses affected
by the provisions of Proposition 47 and Penal Code section 1170.18. [¶] For that reason,
he is not eligible for the requested relief and the petition is denied.” The court made no
reference to Penal Code section 490.2, subdivision (a).
                                        DISCUSSION
       Appellant contends that the trial court erred in finding him ineligible for
resentencing under Proposition 47. His argument is twofold. He first asserts that “the
voters intended all thefts involving property valued under $950 to be treated as
misdemeanors.” He next asserts that it violates equal protection principles to deny
misdemeanor sentencing to a conviction for “stealing a vehicle of value less than $950.”
       Proposition 47 “reduced the penalties for a number of offenses.” (People v.
Sherow (2015) 239 Cal.App.4th 875 (Sherow).) Appellant’s argument relies on Penal
Code section 490.2, which was added by Proposition 47. Penal Code section 490.2
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provides, in pertinent part: “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 . . . .” (Pen. Code,
§ 490.2, subd. (a).)
       “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.]” (Sherow, supra, 239 Cal.App.4th at p. 879.) Thus, “a petitioner
for resentencing under Proposition 47 must establish his or her eligibility for such
resentencing.” (Id. at p. 880.) The petitioner for resentencing has the “initial burden of
proof” to “establish the facts[] upon which his or her eligibility is based.” (Ibid.) If the
crime under consideration is a theft offense, “ ‘the petitioner will have the burden of
proving the value of the property did not exceed $950.’ [Citation.]” (Id. at p. 879.)
       Here, appellant’s entire argument is premised on the assumption that the vehicle
he stole was valued at $950 or less. He presented no facts or evidence in his resentencing
petition, however, to show that the vehicle was worth $950 or less. Nor does the record
of appellant’s conviction contain any evidence showing that the stolen vehicle was valued
at $950 or less. Indeed, appellant concedes that “the record does not supply evidence of
the car’s value.” Given that the record here is silent regarding the vehicle’s value,
appellant has failed to demonstrate error. His own declaration of value would, in some
cases, be sufficient to set the matter for hearing. (See Sherow, supra, 239 Cal.App.4th at
p. 880 [a proper resentencing petition “could certainly contain at least” the petitioner’s
testimony about the stolen item, and on a sufficient showing the trial court “can take such
action as appropriate to grant the petition or permit further factual determination”].)




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                                      DISPOSITION
       The order denying the petition for resentencing is affirmed without prejudice to
subsequent consideration of a petition that demonstrates a stolen vehicle valued at $950
or less.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           ELIA, J.




____________________________________
           GROVER, J.




People v. Hernandez
H042042




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