Filed 5/4/16 P. v. Swett CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




THE PEOPLE,                                                                   B262823

          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. MA055758)
          v.

KEITH JASON SWETT,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
Christopher G. Estes, Judge. Affirmed.
          Ken K. Behzadi, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters,
Assistant Attorneys General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys
General, for Plaintiff and Respondent.
                                         ______________________________
       Keith Jason Swett appeals from the order denying his petition for resentencing
under Proposition 47. (Pen. Code, § 1170.18.)1 We affirm because appellant has not met
his burden of showing that he is eligible for resentencing under the proposition.


                      FACTUAL AND PROCEDURAL SUMMARY
       In 2012, appellant pled no contest to attempted grand theft auto and admitted a
prior prison term. (§§ 487, subd. (d)(1); 664; 667.5, subd. (b).) He was sentenced to 30
months in prison and placed on a three-year probation, which subsequently was revoked.
       In 2014, appellant filed a one-page form petition for resentencing under section
1170.18. The court denied the petition without prejudice. Assuming attempted grand
theft is included within Proposition 47, the court held appellant had not met his burden of
showing the value of the property at issue was less than $950. This appeal followed.


                                        DISCUSSION
       Penal Code section 1170.18, which was added by Proposition 47, allows persons
previously convicted of felonies that would be misdemeanors under Proposition 47 to
petition for resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 878–879
(Sherow).) Section 490.2, subdivision (a) provides that “[n]otwithstanding 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,” unless the defendant has one or more disqualifying prior convictions.
Section 487, subdivision (d)(1) specifies that “grand theft” is committed when the
property taken is an automobile.
       Proposition 47 does not expressly mention attempts. Without deciding the issue,
we follow the parties’ and trial court’s assumption that attempted grand theft is subject to
the proposition. A number of courts have concluded that a defendant bears the initial


       1
           Statutory references are to the Penal Code unless otherwise indicated.
                                               2
burden of showing eligibility for resentencing under Proposition 47, including the value
of the property at issue. (See People v. Perkins (2016) 244 Cal.App.4th 129, 136–137;
People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449–450; Sherow, supra, 239
Cal.App.4th at pp. 878–880.) That is because ‘““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.”’” (Id. at p. 879; see Evid. Code, § 500.)
       Appellant’s arguments to the contrary are not persuasive. He reasons that because
section 1170.18 does not assign the burden of proof, and the record of conviction is silent
as to the value of property, eligibility for resentencing must be presumed. He purports to
derive this reasoning from People v. Rells (2000) 22 Cal. 4th 860 (Rells) and People v.
Guerrero (1988) 44 Cal.3d 343 (Guerrero). Without regard to the context in which they
were decided, appellant reads those cases as standing for the broad propositions that
whenever a statute is silent about the burden of proof, a pre-existing presumption applies,
and the least serious offense must be presumed on a silent record. Neither case can be
read so broadly.
       Rells extended the explicit presumption of mental competence applicable at an
original competence trial (§ 1369) to a retrial after a mandatory commitment (§ 1372).
(Rells, supra, 22 Cal. 4th at pp. 867–868.) In contrast, here no pre-existing statutory
presumption is at issue. Guerrero cannot be read to require that the least serious offense
be presumed on a silent record in all cases. The issue in Guerrero was whether a prior
federal conviction could be used for enhancement purposes, an issue on which the
prosecution has the burden of proof. (Guerrero, supra, 44 Cal.3d at pp. 354–355; see
People v. Towers (2007) 150 Cal.App.4th 1273, 1277 [“prosecution bears the burden of
proving beyond a reasonable doubt that a defendant’s prior convictions were for either
serious or violent felonies”].) In contrast, here appellant is seeking more favorable
treatment, which is why he has the burden of showing eligibility.
       Appellant contends that cases decided under the Three Strikes Reform Act of 2012
(Proposition 36) support his position. We disagree. In People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, the court held that the prosecution must establish

                                              3
the defendant’s dangerousness under section 1170.126, subdivision (f) by preponderance
of the evidence. (Id. at pp. 1301–1305.) The issue of dangerousness arises only after the
defendant has established his eligibility for resentencing. (See People v. Superior Court
(Martinez) (2014) 225 Cal.App.4th 979, 987 [once eligibility for resentencing is
determined, burden shifts to prosecution to establish dangerousness].)
       In People v. Bradford (2014) 227 Cal.App.4th 1322, 1333–1334 , the court
declined to import a “plead and prove” requirement into section 1170.126, subdivision (e)
to establish a defendant’s ineligibility for resentencing. It concluded that eligibility
should be determined on the record of conviction, following Guerrero, supra, 44 Cal.3d
355. (Bradford, at pp. 1339–1340.) The record in Bradford showed the petitioner had
used wire cutters to cut sensor tags off merchandise, and the court found the evidence
insufficient to conclude he had been armed with a deadly weapon during the theft
offenses, which would have made him ineligible for resentencing under Proposition 36.
(Id. at pp. 1342–1343.) We decline to consider whether the Bradford court’s reliance on
Guerrero means that the prosecution has the burden to prove the defendant’s ineligibility
for resentencing in Proposition 36 cases. As explained in Sherow, supra, 239
Cal.App.4th at page 880, a petition for resentencing pursuant to Proposition 47 must
make a sufficient initial showing of eligibility to permit further factual determination.
       In arguing that the value of property must be proven beyond a reasonable doubt,
appellant conflates the requirements for proving the elements of a crime or an
enhancement in an original prosecution with those for reducing an already imposed
penalty. (See Sherow, supra, 239 Cal.App.4th at p. 880.) Because Proposition 47
reduces rather than increases criminal penalties, there is no constitutional requirement
that facts be proven beyond a reasonable doubt. (Cf. In re Varnell (2003) 30 Cal.4th
1132, 1141–1142, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)




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                         DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                  EPSTEIN, P. J.
We concur:



      WILLHITE, J.



      COLLINS, J.




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