Filed 12/30/15 P. v. Thibodeaux CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


THE PEOPLE,                                                          B262075

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA132689)
         v.

JACK THIBODEAUX,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Lori Ann Fournier, Judge. Affirmed.


         Janet Uson, 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, Deputy
Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and
Respondent.


                                                   *         *         *
          Defendant Jack Thibodeaux (defendant) filed an application to have his felony
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conviction for receiving stolen property, motor vehicle (Pen. Code, § 496d, subd. (a))
redesignated as a misdemeanor under Proposition 47 (§ 1170.18, subd. (a)). The trial
court denied the application, and defendant appeals. We conclude there was no error, and
affirm.
                      FACTS AND PROCEDURAL BACKGROUND
          On November 1, 2013, defendant was in possession of a 2000 Kawasaki
motorcycle belonging to someone else. When questioned by law enforcement, he
admitted that it “may be stolen.” The People charged him with a single count of felony
receiving stolen property, motor vehicle (§ 496d, subd. (a).) On July 15, 2014, defendant
entered a plea of no contest to that count. That same day, the trial court sentenced
defendant to a 16-month prison sentence; that sentence was to run consecutively to a 32-
month sentence imposed in a separate case for possessing methamphetamine with intent
to sell (Health & Saf. Code, § 11378).
          On December 5, 2014, defendant applied to the trial court to have his felony
receiving stolen property, motor vehicle conviction redesignated as a misdemeanor
pursuant to Proposition 47. The trial court denied the petition on the ground that the
“amount of the loss” was $10,000.
          Defendant timely appeals.
                                         DISCUSSION
          Proposition 47, the Safe Neighborhoods and Schools Act, reduced several felony
offenses to misdemeanors—namely, those set forth in Health and Safety Code sections
11350, 11357 or 11377 and Penal Code sections 459.5, 473, 476a, 490.2, 496, and 666.
(§ 1170.18, subd. (a).) As pertinent here, Proposition 47 also authorizes persons who
have been convicted of those offenses and who are “currently serving a sentence for
[such] a conviction” to “petition for a recall of [that] sentence” and for resentencing
under the new misdemeanor provisions. (Ibid.) Proposition 47 amended section 496—


1         Unless otherwise indicated, all further statutory references are to the Penal Code.

                                                2
the statute governing receipt of stolen property generally—to make that crime a
misdemeanor “if the value of the property does not exceed” $950 unless certain
exceptions not pertinent here apply. (§ 496, subd. (a).)
       Defendant argues that the trial court erred in denying his application to redesignate
his felony receipt of stolen property, motor vehicles conviction as a misdemeanor
because (1) the court relied on evidence outside the “record of conviction” in determining
that the motorcycle was valued at $10,000, and (2) the People did not otherwise prove
that the motorcycle’s value exceeded $950. The People argue that Proposition 47 by its
plain terms does not apply to defendant’s felony conviction for violating section 496d
because it only amended section 496; defendant responds that the two offenses are
functionally indistinguishable and that treating them differently violates equal protection.
After briefing in this case was completed, People v. Peacock (Nov. 3, 2015; E063095)
242 Cal.App.4th 708 (Peacock) held that section 496d falls outside of Proposition 47 and
rejected an equal protection challenge to this conclusion.
       However, in this case, we need not reach the questions of whether the trial court
went outside the “record of conviction” or whether to follow Peacock, supra,
242 Cal.App.4th 708. That is because, contrary to what defendant posits, he bears the
“initial burden” of establishing his eligibility for relief under Proposition 47 because
he never “‘prov[ed] [that] the value of the property”—in this case, the
motorcycle—“did not exceed $950.’” (People v. Sherow (2015) 239 Cal.App.4th 875,
879 (Sherow).) In asserting that this burden rests with the People, defendant cites
People v. Cortez (1999) 73 Cal.App.4th 276, 283-284 (Cortez). But Cortez deals with
the People’s burden to show a sentencing enhancement. When it comes to who bears
the initial burden of proving eligibility for relief under Proposition 47, the courts are
unanimous that that burden rests with the applicant. (Sherow, at p. 878;
People v. Page (2015) 241 Cal.App.4th 714, 719, fn. 2; People v. Rivas-Colon (2015)
241 Cal.App.4th 444, 449-450; People v. Cuen (2015) 241 Cal.App.4th 1227, 1231.)
What is more, this assignment of proof is consistent with the Evidence Code. (Evid.



                                              3
Code, § 500 [“a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief . . . that he is asserting”].)
       Thus, even if we assume that Proposition 47 applies to section 496d convictions
and that the trial court erred in looking beyond the “record of conviction” to value the
motorcycle at $10,000, defendant is still not eligible for relief under Proposition 47
because the record is devoid of any evidence regarding the value of the motorcycle.
Defendant has accordingly not carried his burden of showing that the motorcycle’s value
was less than $950, and his application was properly denied.
                                       DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                           ______________________, J.
                                                           HOFFSTADT

We concur:

_______________________, Acting P.J.
ASHMANN-GERST


_______________________, J.
CHAVEZ




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