Filed 6/21/16 P. v. Escobedo CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


THE PEOPLE,                                                                   2d Crim. No. B262702
                                                                            (Super. Ct. No. CR38966)
     Plaintiff and Respondent,                                                  (Ventura County)

v.

LUPE ESCOBEDO,

     Defendant and Appellant.


                   Lupe Escobedo appeals an order denying his petition for resentencing under
the Safe Neighborhoods and Schools Act (Proposition 47). (Pen. Code, § 1170.18.)1 We
conclude, among other things, that Escobedo did not meet his burden to prove that his
two prior convictions for receiving stolen property (§ 496) qualified for resentencing
under Proposition 47. He did not present evidence showing that the value of the stolen
property did not exceed $950. We affirm.
                                                        FACTS
                   In 1998, Escobedo pled guilty to two counts of receiving stolen property--a
1987 Nissan Maxima in 1997 and a 1980 Honda Accord in 1996. He also admitted that
he had been convicted of two counts of robbery (§ 211) in May 1987 and 15 counts of




1
    All statutory references are to the Penal Code.
"armed robbery" (§ 211) in November 1987. He was sentenced to two consecutive
prison terms of 25 years to life.
              Escobedo filed a petition for resentencing under section 1170.126. On
September 4, 2013, the trial court denied that petition. The court found he posed "an
unreasonable risk of danger to the public safety should he be released."
              In 2014, Escobedo filed a petition for resentencing under Proposition 47.
(§ 1170.18.) He claimed his two felony convictions for receiving stolen property were
now misdemeanors under Proposition 47.
              The People filed an opposition stating "the value of [the] items taken in this
case exceed $950," making Escobedo ineligible for resentencing under Proposition 47.
They said that "this court must correctly assess the value of a 1987 Maxima (in 1997
dollars)" and the Honda Accord "(in 1996 dollars)." The People attached a printout from
a "National Auto Dealers Association website." They said the printout showed that "the
original purchase price" for the 1987 Nissan Maxima was "approximately $15,000" and it
had a 2014 value of "approximately $2,000." The People also claimed the Honda Accord
exceeded the $950 value limit. They attached a police report that listed the value of that
car at the time of the offense to be $6,500.
              At the hearing on his Proposition 47 petition, Escobedo presented no
evidence. The trial court denied the petition.
                                       DISCUSSION
                                       Proposition 47
              Escobedo contends the trial court erred by denying his petition under
Proposition 47. He claims the People had the burden to prove that "the offense was a
felony that did not qualify for resentencing as a misdemeanor" and the People did not
meet that burden. We disagree.
              " 'Under section 1170.18, a person "currently serving" a felony sentence for
an offense that is now a misdemeanor under Proposition 47, may petition for recall of that
sentence and request resentencing in accordance with the statutes that were added or
amended by Proposition 47.' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.)

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                 Proposition 47 amended Penal Code section 496 involving the offense of
receiving stolen property. It made that offense a misdemeanor "if the value of the
property does not exceed nine hundred fifty dollars ($950) . . . ." (Prop. 47, § 9.)
                 Escobedo contends he did not have to present evidence proving that the
property he took did not exceed that $950 value limit. We disagree.
                 Escobedo filed the petition claiming he was eligible for relief under
Proposition 47. He had the " ' "burden of proof as to each fact the existence or
nonexistence of which is essential to [his] claim for relief . . . ." ' " (People v. Sherow
(2015) 239 Cal.App.4th 875, 879.) Consequently, he had the burden of proof on whether
the value of the stolen property did not exceed $950. (Id. at p. 880; see also People v.
Rivas-Colon, supra, 241 Cal.App.4th at p. 449.)
                 In Sherow, the trial court held that placing the burden of proof on the
defendant to prove the value of the items in a Proposition 47 petition did not violate due
process. (People v. Sherow, supra, 239 Cal.App.4th at pp. 879-880.) It said, "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." (Id. at. p. 880.) Proposition 47, by contrast, is a "remedial statute"
which is not analogous to criminal prosecutions where the People have the burden of
proof. (Ibid.)
                 Consequently, the Proposition 47 petition is properly denied where the
defendant presents no evidence on the issue of value. (People v. Rivas-Colon, supra,
241 Cal.App.4th at p. 450 [the trial court "properly denied Rivas-Colon's resentencing
petition because he failed to satisfy his burden to prove the value of the property he took
from the store did not exceed $950"]; see also People v. Sherow, supra, 239 Cal.App.4th
at pp. 879-880.)
                 Here Escobedo presented no evidence on the value of the two stolen cars
with his petition. At the hearing on the petition, he presented no evidence on value. His
counsel told the trial court, "I think that the Court is limited to an examination of the

                                                3
record of conviction and that additional evidence cannot be" produced. But this claim is
incorrect. That the prior record of Escobedo's offenses does not disclose the value of the
cars does not eliminate his burden to present evidence. (People v. Sherow, supra, 239
Cal.App.4th at p. 880 ["A proper petition could certainly contain at least [the defendant's]
testimony about the nature of the items taken"].) Escobedo did not meet his burden of
proof. He has not shown error.
               We have reviewed his remaining contentions and conclude he has not
shown error.
               The order denying the petition is affirmed.
               NOT TO BE PUBLISHED.




                                           GILBERT, P. J.

We concur:



               YEGAN, J.



               PERREN, J.




                                             4
                                Ryan J. Wright, Judge

                           Superior Court County of Ventura

                         ______________________________


             Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.




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