Filed 12/22/15 P. v. Hernandez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063492

v.                                                                       (Super.Ct.No. SWF1400678)

AARON ALEXANDER HERNANDEZ,                                               OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

         Thea Greenhalgh, 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.




                                                             1
         Defendant and appellant Aaron Alexander Hernandez pled guilty to one felony

count of receiving stolen property (Pen. Code, § 496, subd. (a), count 1) and admitted a

strike prior (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).1 The trial court imposed

a low term sentence of 16 months in state prison, doubled to 32 months for the strike

prior.

         California voters later passed Proposition 47, which converted receipt of stolen

property into a misdemeanor where the value of the stolen property does not exceed

$950. (§ 496, subd. (a).) Hernandez used a new procedure (§ 1170.18, subd. (a)) to

petition for resentencing, but the trial court denied his petition on the ground Hernandez

did not show the value of the stolen property did not exceed $950.

         On appeal, Hernandez contends the prosecution had the burden of showing the

value of the stolen property exceeded $950 because the record of conviction is silent as to

its value. Defendant asks us to reverse the order denying his petition and direct the trial

court to grant the petition.

         We affirm.

                                               I

                               FACTUAL BACKGROUND

         On February 13, 2014, prosecutors charged Hernandez with felony receipt of

stolen property (§ 496, subd. (a)) and misdemeanor unauthorized entry of property

(§ 602.5, subd. (a)). The complaint alleged defendant “wilfully and unlawfully receive[d]


         1      Unlabeled statutory citations refer to the Penal Code.

                                               2
. . . CASH AND ID CARDS OF SUZANNE A., which said property had been obtained

by theft, knowing said property had been so obtained, and did conceal and withhold and

aid in concealing and withholding said property from the owner.” On March 12, 2014,

Hernandez pled guilty to the felony receipt of stolen property count and admitted his

prior conviction for attempted robbery constituted a strike prior. Consistent with the plea

agreement, the trial court dismissed the misdemeanor count, sentenced Hernandez to 16

months in state prison, and doubled the term to 32 months because of the strike prior.

       On November 4, 2014, after Hernandez began serving his sentence, Proposition 47

amended section 496, subdivision (a) to reduce certain felonies, including receipt of

stolen property, to misdemeanors “if the value of the [stolen] property does not exceed

nine hundred fifty dollars ($950).” (§ 496, subd. (a).) On November 24, 2014,

Hernandez filed a petition for resentencing. His petition identifies his conviction as being

for a violation of section 496, subdivision (a), but does not address the value of the stolen

property.

       On April 10, 2015, the trial court held a hearing on the petition. Near the outset,

the trial court indicated “the defense [has] the burden of establishing a prima facie

showing that the defendant would qualify for the relief requested before any burden

would then shift to the prosecution.” Defense counsel acknowledged the burden to “state

a prima facie basis for relief” and represented that “the only evidence available to me to

present to the court is the charging document and the Tahl[2] waiver.” Defense counsel


       2      In re Tahl (1969) 1 Cal.3d 122.

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asked the court to take judicial notice of those documents. The complaint against

Hernandez says only that he received cash and identity cards of a person named Suzanne

A., knowing the property had been obtained by theft, and kept the property from her. At

the plea hearing, defendant admitted the same facts, without elaboration. Defendant’s

waiver form is also silent on the value of the property.

       The trial court denied the petition on the ground defendant did not carry his burden

of showing he was eligible for resentencing under section 1170.18, subdivision (a).

                                             II

                                      DISCUSSION

       Defendant contends he was eligible to be resentenced unless the prosecution

established the value of the stolen property exceeded $950. Since the prosecution

presented no evidence on that point, and the record of conviction was silent, he argues he

was entitled to be resentenced. We disagree.

       This case requires us to construe the language of an initiative measure, Proposition

47. The same principles that govern construction of a statute enacted by the Legislature

apply to construing a voter initiative. (Taxpayers for Accountable School Bond Spending

v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1025-1026, 1056.) If

the statutory language is not ambiguous, the plain meaning governs. (Id. at p. 1025.)

Our review involves a pure question of law and is therefore de novo. (Id. at p. 1026.)

       An offender who is currently serving a felony sentence for receiving stolen

property (§ 496, subd. (a)) may qualify to have his sentence recalled and to receive a

misdemeanor sentence where the facts show his offense has been reclassified as a

                                             4
misdemeanor (§ 1170.18, subd. (a) [listing § 496 among statutes amended or added by

Proposition 47]; § 1170.18, subd. (b)). At the time of his conviction, the prosecution was

permitted to plead and prove receipt of stolen property as a felony regardless the value of

the stolen property. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308.) As amended

by Proposition 47, section 496, subdivision (a) now specifies that “if the value of the

[stolen] property does not exceed nine hundred fifty dollars ($950), . . . the offense shall

be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one

year.” Thus, defendant would be eligible for resentencing if the value of the stolen

property in his case did not exceed $950. (See People v. Shabazz, supra, at p. 308.)

       However, it is a well-settled principle that “‘[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.’ [Citation.]” (People v. Sherow (2015) 239 Cal.App.4th 875, 879

(Sherow); see also Evid. 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”].) Consistent with this principle, “a petitioner for resentencing under

Proposition 47 must establish his or her eligibility for such resentencing.” (Sherow,

supra, at p. 878.) Where, as in this case, the critical factual issue is the value of stolen

property, defendant must “show the property loss . . . did not exceed $950.” (Id. at

p. 877.)

       Defendant did not present evidence to meet this burden. Defendant’s petition did

not allege or cite evidence that the value of the property was under $950. At the hearing

on the petition, defense counsel offered no evidence related to the value of the stolen

                                               5
property. Instead, defense counsel asked the trial court to take judicial notice of the

complaint and the waiver form from defendant’s plea agreement, both silent on the

question of the value of the property. Having failed to present such evidence, defendant

failed to meet his burden of showing his felony conviction would have been a

misdemeanor had Proposition 47 been in effect at the time of his conviction. The trial

court therefore properly denied defendant’s petition. (§ 1170.18, subd. (b) [“the court

shall determine whether the defendant satisfies the criteria in subdivision (a)”].)

       Defendant contends People v. Guerrero (1988) 44 Cal.3d 343 and similar cases

relieve him of the burden of proof precisely because the record of conviction is silent

regarding the value of the stolen property. Defendant’s argument is simple, but

misguided. According to the Supreme Court in Guerrero, where the facts are limited to

the record of conviction in a prior case and the record “does not disclose any of the facts

of the offense actually committed, the court will presume that the prior conviction was

for the least offense punishable.” (Id. at p. 352.) The principle articulated in Guerrero is

not applicable in Proposition 47 resentencing cases. In Guerrero, the California Supreme

Court recognized courts have applied a presumption in favor of the least offense

punishable where the prosecution sought to enhance a current sentence based on the facts

of a prior case. In such cases the prosecution has the burden of establishing

enhancements apply. (People v. Towers (2007) 149 Cal.App.4th 1066, opn. mod. 150

Cal.App.4th 1273, 1277 [“The prosecution bears the burden of proving beyond a

reasonable doubt that a defendant’s prior convictions were for either serious or violent

felonies”].) As a result, any failure of evidence defeats the ability of the prosecution to

                                              6
meet its burden to show the prior offense was subject to greater punishment, triggering an

enhancement. Here, as we have discussed, the defendant is seeking relief and the

defendant therefore must carry the burden of showing eligibility. In that setting, the

failure of proof cuts against defendant.

       Defendant contends People v. Bradford (2014) 227 Cal.App.4th 1322 supports

relieving him of the burden of proof. We disagree. In Bradford, the Third District held

that under the Three Strikes Reform Act of 2012 the prosecution was not permitted to go

outside the record of conviction to establish a defendant is ineligible for resentencing on

the basis of the nature of his conviction. (People v. Bradford, supra, at p. 1339.) The

Bradford court did not relieve the defendant of his burden of presenting evidence to

support his petition. On the contrary, the court indicated “the petitioner would be well

advised to address eligibility concerns in the initial petition for resentencing.” (Id. at

p. 1341.) Here, defendant did not raise such issues and did not offer testimony or other

evidence concerning the value of the stolen property. (Sherow, supra, 239 Cal.App.4th at

p. 880.) “A proper petition could certainly contain at least [petitioner’s] testimony about

the nature of the items taken. If he made the initial showing the court [could] take such

action as appropriate to grant the petition or permit further factual determination.” (Ibid.)

Without such a showing, the trial court did not err in deciding that defendant had not

established his eligibility for resentencing.




                                                7
                                         III

                                  DISPOSITION

     We affirm the order denying defendant’s petition for resentencing.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           RAMIREZ
                                                                          P. J.

We concur:


HOLLENHORST
                        J.


McKINSTER
                        J.




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