Filed 2/29/16 P. v. Wilson CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E062832 & E062833

v.                                                                       (Super.Ct.Nos. RIF111381,
                                                                          SWF002635 & SWF005083)
ROBERT SCOTT WILSON, JR.,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael

Pulos, Deputy Attorneys General, for Plaintiff and Respondent.




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                                       INTRODUCTION

         Defendant Robert Scott Wilson, Jr., appeals from the denial of his petitions under

Penal Code section 1170.181 for resentencing on his convictions in case Nos. RIF111381,

SWF002635, and SWF005083.2 Defendant pled guilty to second degree burglary,

receiving stolen property, transportation of methamphetamine, and admitted a strike

prior.

         As to receiving stolen property, defendant contends the prosecution bore the

burden of establishing that the value of the stolen property as to each count exceeded

$950, and that the prosecution failed to meet that burden. As to burglary, defendant

contends a storage unit facility is a commercial establishment, and his conviction

therefore qualified for resentencing as a misdemeanor under section 459.5.

                        FACTS AND PROCEDURAL BACKGROUND

         In case no. RIF111381, defendant pled guilty to second degree burglary and

admitted a strike prior. (§§ 459, 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) He was

sentenced to one year four months in state prison, to run consecutive to case

Nos. SWF002635 and SWF005083.

         In case No. SWF002635, defendant pled guilty to seven counts of receiving stolen

property (Pen. Code, § 496, subd. (a)), one count of transportation of methamphetamine

(Health & Saf. Code, § 11379), and admitted a strike prior (Pen. Code, §§ 667, subds. (c),


         1   All further statutory references are to the Penal Code unless otherwise indicated.

         2   Defendant does not raise any issues related to case No. SWF005083.


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(e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to 17 years four months in state

prison.

          In case No. SWF005083, defendant pled guilty to one count of second degree

burglary (§ 459), and was sentenced to one year four months in state prison. The

sentence was to run consecutive to case No. SWF002635.

          The court found the police reports, probation reports, and preliminary hearing

transcripts, if any, provided a factual basis for the pleas.

          Petitions for Resentencing

          On November 21, 2014, defendant filed petitions for resentencing under

Proposition 47 and section 1170.18. In case No. RIF111381, the trial court denied the

petition because a storage unit facility is not a commercial establishment. In case

Nos. SWF002635 and SWF005083, the trial court denied the petitions because the amount

of loss was more than $950. Defendant filed notices of appeal in all three cases.

                                          DISCUSSION

          Defendant Failed to Meet His Burden of Establishing the Value of the

Property in Each Receiving Stolen Property Count

          In his petition for resentencing, defendant did not allege that the value of the

property in each count was $950 or less, and the record does not indicate the value of the

loss for any of the individual convictions of receiving stolen property. The trial court

determined that the total loss exceeded $50,000. Defendant contends the prosecution

bore the burden of establishing that the value of the stolen property as to each count

exceeded $950, and the prosecution failed to meet that burden.


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       In People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), the court held that it is

the petitioner’s burden to establish that the amount of property in each case was less than

$950. (Id. at p. 878.) The court observed that although “Proposition 47 does not

explicitly allocate a burden of proof,” “applying established principles of statutory

construction we believe a petition for resentencing under Proposition 47 must establish

his or her eligibility for such resentencing.” (Ibid.) The court explained that the

petitioner had been validly convicted under the law applicable at the time of trial, and it

was entirely appropriate, fair, and reasonable to allocate the initial burden of proof to the

petitioner to establish facts upon which eligibility for relief is based because the

petitioner knew what items he possessed. Thus, “[a] proper petition could certainly

contain at least the [petitioner]’s testimony about the nature of the items taken. If he

made the initial showing the court can take such action as appropriate to grant the petition

or permit further factual determination. [Citation.]” (Id. at p. 880.)

       Defendant attempts to distinguish Sherow on the ground that in that case, the

defendant made a “blanket request for resentencing on all counts without specifying

which counts might have involved less than $950.00 or discussing any facts surrounding

the offenses,” and here defendant “specified the seven counts of receiving stolen property

that might have involved less than $950.00.” Defendant raises a distinction without a

difference. He bore the burden of establishing his eligibility for resentencing as to each

individual count, and he has failed to meet that burden.




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       Defendant Failed to Meet His Burden of Establishing His Eligibility for

Resentencing on the Burglary Count

       As to the burglary count in case No. RIF111381, defendant contends the storage

unit facility is a commercial establishment, and his conviction therefore qualified for

resentencing as a misdemeanor under section 459.5.3 Proposition 47 added section 459.5

to redefine burglaries as misdemeanor shoplifting, defined as “entering a commercial

establishment with intent to commit larceny while that establishment is open during

regular business hours, where the value of the property that is taken or intended to be

taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5.)

       We need not reach the issue of whether a privately rented storage unit is a

commercial establishment because, as with the receiving stolen property counts in

SWF002635, defendant failed to meet his burden of establishing that the value of the

property did not exceed $950. (Sherow, supra, 239 Cal.App.4th 878.)




       3 Defendant’s petition for resentencing did not mention his burglary conviction.
Nonetheless, the district attorney addressed the storage unit facility burglary case and
opposed resentencing in that case on the ground it did not involve a commercial
establishment as required for resentencing. The trial court conducted a hearing on the
burglary case and denied resentencing in that case because a storage unit facility is not a
commercial establishment. Despite any procedural irregularity below, the People do not
oppose this court addressing the merits of the trial court’s order as to the burglary case.


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                                     DISPOSITION

      The orders denying defendant’s petitions for resentencing are affirmed without

prejudice to subsequent consideration of properly filed petitions. (Sherow, supra, 239

Cal.App.4th at p. 881.)

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                              McKINSTER
                                                                                         J.
We concur:



RAMIREZ
                          P. J.



MILLER
                             J.




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