Filed 12/8/15 P. v. Buckins CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042009
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC199875)

             v.

DARRELL EDWARD BUCKINS,

         Defendant and Appellant.



         Appellant Darrell Edward Buckins appeals from on order denying his
Proposition 47 petition for designation of his Vehicle Code section 10851 conviction as a
misdemeanor. On appeal, appellant contends that the trial court erred in finding him
ineligible for Proposition 47 relief.
                                                   BACKGROUND
         An information, filed on June 7, 2001, charged appellant with theft or
unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)). Appellant pleaded no
contest to that charge on July 30, 2001. The trial court suspended imposition of sentence
and placed appellant on probation, but appellant violated the terms of his probation. On
July 24, 2003, the trial court sentenced appellant to 16 months in prison.
         On December 4, 2014, appellant filed a Proposition 47 petition for designation of
his conviction as a misdemeanor (Pen. Code, § 1170.18, subd. (f)). The trial court denied
the petition on February 3, 2015. In denying the petition, the trial court stated that
appellant was ineligible for the requested relief because “Proposition 47 does not affect
convictions under Vehicle Code section 10851.”
                                       DISCUSSION
       Appellant contends that the trial court erred in finding him ineligible for
Proposition 47 relief. His argument is twofold. He first asserts that Proposition 47 “is
properly construed as providing for a misdemeanor sentence on a violation of Vehicle
Code section 10851 where the value of the vehicle does not exceed $950.” He next
asserts that it violates equal protection principles to deny misdemeanor designation to a
Vehicle Code section 10851 conviction involving “a vehicle costing less than $950.” As
explained below, we must affirm.
       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).)
Proposition 47 “reduced the penalties for a number of offenses.” (People v. Sherow
(2015) 239 Cal.App.4th 875, 879 (Sherow).) Appellant’s argument relies on Penal Code
section 490.2, which was added by Proposition 47. Penal Code section 490.2 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).)
       Penal Code section 1170.18, which was also added by Proposition 47, “provides
that persons who have completed felony sentences for offenses that would now be
misdemeanors under Proposition 47 may file an application with the trial court to have
their felony convictions ‘designated as misdemeanors.’ [Citation.]” (Rivera, supra, 233
Cal.App.4th at p. 1093.) As relevant here, Penal Code section 1170.18 provides: “A
person who has completed his or her sentence for a conviction, whether by trial or plea,

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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.” (Pen. Code, § 1170.18,
subd. (f).)
       “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
seeking Proposition 47 relief “must establish his or her eligibility” for such relief. (Id. at
p. 878.) The petitioner has the “initial burden of proof” to “establish the facts[] upon
which his or her eligibility is based.” (Id. at p. 880.) 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.) 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.) If the petition makes a sufficient showing, the trial court
“can take such action as appropriate to grant the petition or permit further factual
determination.” (Ibid.)
       “Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “The
very settled rule of appellate review is a trial court’s order/judgment is presumed to be
correct, error is never presumed, and the appealing party must affirmatively demonstrate
error on the face of the record.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
       Here, appellant’s entire argument is premised on the assumption that the vehicle
involved in his offense was valued at $950 or less. He presented no facts or evidence in
his Proposition 47 petition, however, to show that the vehicle was worth $950 or less.

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Nor does the record of appellant’s conviction contain any evidence showing that the
vehicle was valued at $950 or less. Given that nothing in the record before us shows that
the vehicle was worth $950 or less, appellant has failed to demonstrate error, and we
must affirm.
       Appellant contends that “[a]s a matter of due process” the trial court’s order “may
not be upheld on appeal based on the absence of evidence” regarding the vehicle’s value.
He asserts that we are precluded from affirming based on such an absence of evidence
because it would violate his due process “right to be heard.” Appellant’s argument is
unavailing. Although appellant correctly points out that there “was no evidentiary
hearing” on the issue of value, he nonetheless had an opportunity to be heard on the issue
of value. His Proposition 47 petition could have contained facts and evidence pertaining
to the value of the vehicle, but the petition was devoid of any such facts or evidence.
(See Sherow, supra, 239 Cal.App.4th at p. 880 [a “proper petition could certainly contain
at least” the petitioner’s testimony about the stolen item].) Thus, appellant did have an
opportunity to be heard on the issue of value, but he did not utilize it. Appellant’s due
process argument fails.
       In sum, because nothing in the record before us shows that the vehicle involved in
appellant’s offense was worth $950 or less, appellant has failed to demonstrate error, and
we must affirm. We will affirm without prejudice. We note that a Proposition 47
petition containing a declaration regarding the value of the vehicle could be sufficient to
set the matter for hearing. (See Sherow, supra, 239 Cal.App.4th at p. 880 [a proper
Proposition 47 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 misdemeanor designation is affirmed without
prejudice to subsequent consideration of a petition that demonstrates a vehicle valued at
$950 or less.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




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