Filed 3/8/16 P. v. Santamaria CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068307

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD254710)

EDGAR SANTAMARIA,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Timothy R.

Walsh, Judge. Affirmed.

         Paul J. Katz, 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, Charles C. Ragland and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
       Edgar Santamaria entered into a plea agreement in which he plead guilty to one

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

threating a public officer (§ 71), as a misdemeanor. The remaining counts and allegations

were dismissed.

       In October 2014, Santamaria was sentenced to a split term of three years, with two

years to be served in local custody and one year in mandatory supervision.

       In May 2015, Santamaria filed a petition under Proposition 47 (§ 1170.18)

requesting that his conviction for receiving stolen property be redesignated as a

misdemeanor. Following briefing and a hearing the motion was denied.

       Santamaria appeals contending the trial court erred in denying his petition.

Although he conceded in the trial court that the burden of proof as to the value of the

stolen items was on him, he now contends the burden of proof was on the prosecution.

Santamaria also argues that the only material which can be considered in ruling on a

petition such as this is the record of conviction.

       Santamaria recognizes this court and others have determined that the burden of

proof as to eligibility for relief under section 1170.18 is on the petitioner, however he

argues the cases reaching that decision were wrongly decided.

       We will adhere to our previous holding that the initial burden of establishing the

value of the stolen property lies with the petitioner. We will also conclude that the issue

of the manner of proof of value is not properly before us on this appeal. The prosecution



1      All further statutory references are to the Penal Code unless otherwise specified.
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did not offer any evidence in the trial court and the merits of the petition were resolved

on the petitioner's failure to show that the value of the items he possessed was less than

$950. Accordingly, we will affirm the trial court's decision.

                                  STATEMENT OF FACTS

       The parties did not present any evidence at the hearing on the petition to

redesignate the conviction as a misdemeanor. The original conviction followed a guilty

plea, so there are no "facts" to recite in this section.

       It is sufficient to note there was a substantial amount of stolen property in his

possession. The items included four GPS devices, two men's wrist watches, four pairs of

sunglasses, two iPods, one Alcatel cell phone, one Samsung Galaxy cell phone with case,

one iPhone with case, numerous CDs/DVDs, one necklace, and one garage door opener,

among other items.

       At the hearing Santamaria took the position that filing the petition, and the

transcript of the preliminary hearing at which there was no testimony as to value,

satisfied his burden of demonstrating eligibility, i.e., that the value of the items did not

exceed $950.

                                         DISCUSSION

       At the hearing on Santamaria's petition, counsel conceded that the burden of proof

that he qualified for relief was on the petitioner. Counsel argued, however, that since the

transcript of the preliminary hearing did not include evidence of the value of the stolen

items, he had met his burden. Specifically, the argument was the absence of evidence in

the record established the value of the stolen items was less than $950. The trial court

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rejected the argument and concluded Santamaria had failed to show he qualified for

redesignation of his offense as a misdemeanor. We agree.

                                   A. Legal Principles

      On November 4, 2014, the voters enacted Proposition 47 (the Safe Neighborhoods

and Schools Act), which is codified in section 1170.18. The act prospectively declares

certain drug and theft related offenses to be misdemeanors. Retrospectively, the act

provides a mechanism for convicted persons to seek redesignation of certain felony

offenses to misdemeanors, where the value of the items taken was less than $950.

(People v. Rivera (2015) 233 Cal.App.4th 1085, 1089; People v. Lynall (2015) 233

Cal.App.4th 1102, 1108.)

      Section 1170.18, provides in part:

          "(a) A person currently serving a sentence for a conviction, whether
          by trial or plea, of a felony or felonies who would have been guilty
          of a misdemeanor under the act that added this section ("this act")
          had this act been in effect at the time of the offense may petition for
          a recall of sentence before the trial court that entered the judgment of
          conviction in his or her case to request resentencing in accordance
          with Sections 11350, 11357, or 11377 of the Health and Safety
          Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
          Code, as those sections have been amended or added by this act.

          "(b) Upon receiving a petition under subdivision (a), the court shall
          determine whether the petitioner satisfies the criteria in subdivision
          (a). If the petitioner satisfies the criteria in subdivision (a), the
          petitioner's felony sentence shall be recalled and the petitioner
          resentenced to a misdemeanor pursuant to . . . Section . . . 496 [as]
          those sections have been amended or added by this act, unless the
          court, in its discretion, determines that resentencing the petitioner
          would pose an unreasonable risk of danger to public safety.

          [¶] . . . [¶]


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              "(i) The provisions of this section shall not apply to persons who
              have one or more prior convictions for an offense specified in clause
              (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
              Section 667 or for an offense requiring registration pursuant to
              subdivision (c) of Section 290."

       Section 1170.18 does not specify a burden of proof for petitioners who seek

retrospective redesignation of their offenses. Thus, in People v. Sherow (2015) 239

Cal.App.4th 875, 879-880 (Sherow), this court determined that a petitioner who seeks to

have his or her offense reduced on the basis of value less than $950 bears the initial

burden of proof that the person's offense qualifies for such relief. Based upon our

analysis of the language authorizing the petitions for relief, the absence of a stated burden

of proof in the act, and the general principles of burdens established by Evidence Code

section 500, we concluded the burden to establish eligibility for relief falls on the

petitioner.

       Since our opinion in Sherow, supra, 239 Cal.App.4th 875, the First District Court

of Appeal, in People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450 (Rivas-

Colon), agreed with our decision and also concluded the burden is on the petitioner under

section 1170.18 to establish his or her eligibility for relief.

                                          B. Analysis

       Appellate counsel argues that Sherow, supra, 239 Cal.App.4th 875 and Rivas-

Colon, supra, 241 Cal.App.4th 444, were wrongly decided and that we should revisit the

issue of burden of proof under Proposition 47. The argument is largely based on

counsel's comparative analysis of Proposition 36 (§ 1170.126), the Three Strikes Law

reform measure. The argument is perhaps summarized as Proposition 36 is worded

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similarly to Proposition 47 (although not identical), the burden of proof as to lack of

eligibility is on the prosecution (People v. Bradford (2014) 227 Cal.App.4th 1322),

therefore the burden of proof under Proposition 47 ought to be on the prosecution.

       First, we are satisfied that the three courts that have examined the Proposition 47

burden of proof were correct, and we decline to visit the issue again. Also, we find the

nature of the propositions to be different. While both provide prospective and

retrospective modifications of existing law, their scope and methodology are different.

       Under Proposition 36 it is the nature of the conviction which drives the outcome of

postconviction relief. If the person has not been convicted of a serious felony as the

current offense, the person is not eligible for a life term, unless there are exceptions,

which the prosecution must prove.

       In cases such as this, the issue is not the conviction, which is otherwise valid as a

felony. The question in theft cases such as this is the property value, which, like the

present case, was irrelevant for the underlying conviction. Thus the person filing the

petition seeks to undermine the conviction by contending the value of the property at

issue was under $950. The cases which have discussed this question construe the

requirement on the section for the petitioner to show eligibility as logically putting the

burden on the person most likely to know what he or she had stolen, or received. In

short, the proposed comparative analysis does not dissuade us from our conclusion in

Sherow, supra, 239 Cal.App.4th 875.

       Santamaria did not present any evidence as to the value of the many items of

stolen property in his possession. The so-called silence in the transcript of the

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preliminary examination about value, an issue irrelevant at the time, is not evidence that

the value of the accumulated stolen property is less than $950. Thus appellant has not

met his initial burden of establishing eligibility for relief.

       Finally, appellate counsel invites us to opine on the question of how to meet the

burden of proof. He contends the prosecution not only bears the burden, but is limited to

the "record of conviction" as that term is used in the analysis of alleged prior felony

convictions. (People v. Guerrero (1988) 44 Cal.3d 343, 355.)

       While the issue may be fascinating and have relevance in another case, it is not

before us for decision. There was mention of the concept by defense counsel in the trial

court, however, there was never any ruling predicated on the scope of admissible

evidence. The defense was not limited in any offer of proof and the prosecution did not

offer any evidence. Accordingly, whatever view we might take on the scope of

admissible evidence at some point has no bearing on our determination of whether the

trial court correctly denied the petition for relief under Proposition 47. We decline to

offer an advisory opinion on an undeveloped issue. (Paterno v. State of California

(1999) 74 Cal.App.4th 68, 106.)




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                                  DISPOSITION

    The order denying the petition under section 1170.18 is affirmed.




                                                             HUFFMAN, Acting P. J.

WE CONCUR:


                   AARON, J.


                     IRION, J.




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