Filed 2/23/16 P. v. Cortinas CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H042043
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1370576)

             v.

MIGUEL CORTINAS,

         Defendant and Appellant.



         Appellant Miguel Cortinas appeals from an order denying his petition for
Proposition 47 resentencing. On appeal, appellant contends that the trial court erred in
ruling that he was ineligible for Proposition 47 relief, and he alternatively contends that
he received ineffective assistance of counsel at the Proposition 47 hearing.
                                                   BACKGROUND
         On May 19, 2014, appellant pleaded no contest to buying or receiving a stolen
motor vehicle (Pen. Code, § 496d),1 and he admitted a prior strike conviction (Pen. Code,
§§ 667, subds. (b)-(i))/1170.12). On July 14, 2014, the trial court sentenced appellant to
32 months in prison for his offense.



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        The complaint to which appellant pleaded no contest described the vehicle
involved in the offense as “a 1992 Honda Accord,” and it asserted that the offense
occurred “[o]n or about December 1, 2013.”
        On January 8, 2015, appellant filed a petition for Proposition 47 resentencing. The
petition requested recall of appellant’s felony sentence and resentencing as a
misdemeanor. In support of the petition, appellant submitted a brief that contended that
Proposition 47 requires misdemeanor sentencing for violation of Penal Code section 496d
where the value of the vehicle “does not exceed $950.” The brief contained no facts or
evidence showing that the vehicle involved in appellant’s offense was valued at $950 or
less.
        The trial court held a hearing on appellant’s Proposition 47 petition on
February 17, 2015. At the beginning of the hearing, appellant’s counsel stated: “I have
submitted a brief about the eligibility of 496d of the Penal Code. [¶] I’m prepared to
submit it on the arguments in that brief.” The prosecutor responded by stating that Penal
Code section 496d “is ineligible” for Proposition 47 resentencing. The prosecutor
additionally argued: “Regardless, the vehicle in this case had a value . . . well over $950.
In fact the latest Blue Book shows that the vehicle was worth in the range of 1,300 to
$2,100.” Immediately after the prosecutor’s comments, the trial court denied appellant’s
Proposition 47 petition. The trial court explained that appellant was “ineligible for the
requested relief” because Penal Code section 496d “is not one of the offenses subject to
the provisions of” Proposition 47. The trial court also noted that the vehicle involved in
appellant’s offense appeared to have a value “in excess of $950.”
                                        DISCUSSION
        Appellant contends that we must reverse the order denying resentencing because
the trial court erred in finding him ineligible for Proposition 47 resentencing. Appellant
raises three arguments to support his contention that the trial court erred in finding him
ineligible for Proposition 47 resentencing: 1) the voters intended that “[Penal Code]
section 496d should be considered a misdemeanor . . . as long as the vehicle is worth less
than $950,” 2) it violates equal protection principles to deny misdemeanor sentencing to a

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Penal Code section 496d conviction involving a vehicle “valued at less than $950,” and
3) the trial court was prohibited from considering the Blue Book value proffered by the
prosecution because it was evidence outside of the record of conviction. Alternatively,
appellant contends that we must reverse because his counsel rendered ineffective
assistance in failing to object to the trial court’s consideration of the Blue Book value.
As set forth below, we must affirm.
Legal Principles
       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)). “Proposition 47 makes certain drug- and
theft-related offenses misdemeanors . . . . These offenses had previously been designated
as either felonies or wobblers (crimes that can be punished as either felonies or
misdemeanors).” (Rivera, supra, 233 Cal.App.4th. at p. 1091.)
       Appellant relies on Penal Code section 490.2, which was added by Proposition 47.
Appellant asserts that Penal Code section 490.2 “implicitly” requires misdemeanor
sentencing for violations of Penal Code section 496d. 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, “creates a
process where persons previously convicted of crimes as felonies, which would be
misdemeanors under the new definitions in Proposition 47, may petition for
resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 879.) Penal Code section 1170.18

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specifies that a person may petition for resentencing in accordance with Penal Code
section 490.2. (Pen. Code, § 1170.18, subd. (a).)
       “[A] petitioner for resentencing under Proposition 47 must establish his or her
eligibility for such resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The
petitioner for resentencing 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-related 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
(Davis).)
Appellant has Failed to Show Trial Court Error or Ineffective Assistance of Counsel
       Appellant’s claim that the trial court erred in finding him ineligible for
Proposition 47 resentencing is premised on the assumption that the vehicle involved in
his offense was worth $950 or less. During the Proposition 47 proceedings, however,
appellant did not cite any facts or offer any evidence showing that the vehicle was worth
$950 or less. Nor does the record of appellant’s conviction contain any evidence
showing that the vehicle was valued at $950 or less. Indeed, appellant’s appellate briefs

                                              4
do not even attempt to identify any evidence that shows the vehicle was worth $950 or
less. Given the absence of any facts or evidence showing that the vehicle involved in his
offense was valued at $950 or less, appellant has failed to demonstrate that the trial court
erred in finding him ineligible for Proposition 47 relief. (See Davis, supra, 50
Cal.App.4th at p. 172 [a trial court order is presumed to be correct, and the appealing
party must affirmatively demonstrate error on the face of the record].)
       We note that the record before us actually suggests that the value of the vehicle
exceeded $950. At the Proposition 47 hearing, the prosecutor pointed out that “the latest
Blue Book shows that the vehicle was worth in the range of 1,300 to $2,100.”
Appellant’s contention that the trial court was prohibited from considering such evidence
of Blue Book value—which is outside the record of conviction—does not persuade us to
find trial court error. The trial court may consider evidence outside of the record of
conviction when determining whether a petitioner is eligible for Proposition 47
resentencing. (See Sherow, supra, 239 Cal.App.4th at p. 880 [when determining
eligibility for Proposition 47 relief, the trial court may consider new testimony presented
in the petition].) Thus, contrary to appellant’s assertion, we do not believe that the trial
court was prohibited from considering Blue Book value. In any event, our conclusion
regarding the absence of trial court error in the eligibility determination is not dependent
on the Blue Book value proffered by the prosecutor. Appellant had the burden of proving
he was eligible for Proposition 47 resentencing, but he failed to present any evidence or
cite any facts showing that the vehicle involved in his offense was worth $950 or less.
Because appellant’s claim that the trial court erred in finding him ineligible for
resentencing is premised on the assumption that the vehicle involved in his offense was
worth $950 or less, we cannot find trial court error on this record that contains no
evidence showing that the vehicle was valued at $950 or less.



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       Finally, appellant has failed to demonstrate ineffective assistance of counsel.
Appellant contends that his “counsel’s failure to object to the trial court’s consideration
of evidence outside the record of conviction,” namely the Blue Book value of the vehicle
involved in appellant’s offense, “constituted ineffective assistance of counsel.”
(Capitalization omitted.) Appellant emphasizes that “[c]ompetent counsel would have
known . . . that in this resentencing context a trial court cannot make factual findings on
information that is beyond what is in the record of conviction.” Appellant’s argument is
meritless. As we explained above, the trial court may consider evidence outside of the
record of conviction when determining whether a petitioner is eligible for Proposition 47
resentencing. (See Sherow, supra, 239 Cal.App.4th at p. 880].) Thus, appellant’s
counsel was not deficient in failing to object to the Blue Book value on the ground that it
was outside of the record of conviction. (See People v. Mitcham (1992) 1 Cal.4th 1027,
1080 [counsel’s “failure to make a meritless objection does not constitute deficient
performance.”].)
                                       DISPOSITION
       The order denying resentencing is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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