Filed 1/26/16 P. v. Seberry 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062849

v.                                                                       (Super.Ct.No. FVA1300172)

ROBERT SEBERRY,                                                          OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Paul Kleven, 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, Meagan J.

Beale, and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.



                                                             1
       Defendant and appellant Robert Seberry appeals from an order denying his

petition to reduce his conviction for felony receipt of stolen property (Pen. Code, § 496,

subd. (a))1 to a misdemeanor pursuant to Proposition 47. On appeal, he argues that

(1) the trial court erred in denying his petition because his conviction for receipt of stolen

property qualified for relief; (2) there was no admissible evidence that the value of the

property exceeded the statutory maximum of $950, but the receipt established the value

was well within the maximum; and (3) his prior manslaughter conviction did not

disqualify him for relief. For the reasons explained below, we affirm the order without

prejudice.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

       In January 2013, defendant went to a recycling center in Fontana and turned in a

bundle of telecommunications wiring for recycling.2 The wiring was stolen from

Verizon and weighed approximately 176 pounds. Verizon priced it at about $2,000. The

recycling center gave defendant $185.43 in exchange for the wiring.



       1   All future statutory references are to the Penal Code unless otherwise stated.

       2  This court granted defendant’s motion to augment the record in part to include
the preliminary hearing transcript in an order dated June 30, 2015.
       Defendant also sought to augment the record to include the January 26, 2013
police report pertaining to the charges. In the June 30, 2015 order, this court deemed
exhibit B as a request for judicial notice, and reserved ruling for consideration with the
appeal. Because exhibit B, the police report, is relevant to the issues on appeal, we will
grant the request.


                                               2
       On April 28, 2014, an information was filed charging defendant with receipt of

stolen property (§ 496, subd. (a)). It was further alleged that defendant had suffered a

prior strike conviction for voluntary manslaughter (§§ 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)). On May 16, 2014, defendant pled no contest to the charge and admitted

the prior strike conviction. At the plea hearing, the defense stipulated to a factual basis

for the plea contained in the preliminary hearing transcript, which listed the value of the

wire as $2,000.3 The trial court found a factual basis for the plea and admission and

sentenced defendant to two years eight months in state prison.4

       On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next

day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47

classifies as misdemeanors certain drug- and theft-related offenses that previously were

felonies or “wobblers,” unless they were committed by certain ineligible defendants.

(§ 1170.18, subd. (a).)

       Defendant subsequently filed a habeas petition, which the trial court deemed a

petition for resentencing under Proposition 47.

       3 The defense also stipulated to defendant’s criminal history to determine a
factual basis for the admission of the prior strike conviction.

       4  We note that the court retained jurisdiction as to restitution and that a restitution
hearing was set for June 18, 2014, and continued to July 18, 2014. A minute order from
the July 18, 2014 hearing indicates that the court had read and considered a memorandum
from the probation department dated July 11, 2014, and that the “[c]ourt retains
jurisdiction on issue of restitution pursuant to PC1202.46.” The record does not include
the amount of restitution claimed by the victim, or if victim restitution was ever ordered.


                                               3
       On December 12, 2014, following a hearing, the trial court considered and denied

defendant’s petition, finding defendant did not qualify for relief. Defendant filed a timely

notice of appeal from that order on February 2, 2015.

                                             II

                                       DISCUSSION

       Defendant urges us to reverse the order denying his petition for resentencing and

remand the matter for further proceedings, arguing that the trial court erred in finding him

ineligible for resentencing under Proposition 47. Specifically, defendant argues (1) his

conviction for receipt of stolen property qualified for relief; (2) there was no admissible

evidence the value of the stolen property exceeded the statutory maximum of $950, but

the receipt established the value was within that maximum; (3) defendants have a due

process right to respond to evidence relied on by the People to deny relief under

Proposition 47; (4) the People failed to meet their burden of establishing the stolen wire

received by defendant had a value in excess of $950; and (5) if the People attempt to

argue on appeal his 2001 manslaughter conviction disqualified him from obtaining relief

under Proposition 47, this court should reject the argument because the voters did not

intend to disqualify those convicted of manslaughter. Because defendant failed to meet

his initial burden of proving his eligibility for resentencing under Proposition 47, we

reject defendant’s contentions and there is no need to address all of his points on appeal.




                                              4
       When interpreting a voter initiative, we apply the same principles that govern

statutory construction. (People v. Rizo (2000) 22 Cal.4th 681, 685-686.) We first look

“ ‘to the language of the statute, giving the words their ordinary meaning.’ ” (Id. at

p. 685.) We construe the statutory language “in the context of the statute as a whole and

the overall statutory scheme.” (Ibid.) If the language is ambiguous, we look to the

“ ‘voters’ intent, particularly the analyses and arguments contained in the official ballot

pamphlet.’ ” (Ibid.)

       As previously noted, on November 4, 2014, the voters approved Proposition 47,

the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v.

Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and

theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants

and added, among other statutory provisions, section 1170.18. (People v. Rivera, supra,

at p. 1092; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Section 1170.18

creates a process through which persons previously convicted of crimes as felonies,

which would be misdemeanors under the new definitions in Proposition 47, may petition

for resentencing. Under sections 1170.18, subdivision (a), and 490.2, receiving stolen

property (§ 496, subd. (a)) is an offense that qualifies for resentencing if the value of the

property is less than $950. Section 1170.18, subdivision (b), provides in part: “Upon

receiving a petition under subdivision (a), the court shall determine whether the petitioner

satisfies the criteria in subdivision (a).”




                                              5
       In People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), the court observed that

“Proposition 47 does not explicitly allocate a burden of proof.” (Id. at p. 878.) The court

stated that “applying established principles of statutory construction we believe a

petitioner for resentencing under Proposition 47 must establish his or her eligibility for

such resentencing” (ibid) and therefore must “show the property loss . . . did not exceed

$950 and thus fell within the new statutory definition of shoplifting.” (Id. at p. 877.)

The court noted the 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” ’ ” (id. at p. 879) and explained, “ ‘[t]he petitioner will have the

initial burden of establishing eligibility for resentencing under section 1170.18[,

subdivision] (a): i.e., whether the petitioner is currently serving a felony sentence for a

crime that would have been a misdemeanor had Proposition 47 been in effect at the time

the crime was committed. If the crime under consideration is a theft offense under

sections 459.5, . . . or 496, the petitioner will have the additional burden of proving the

value of the property did not exceed $950.’ ” (Sherow, supra, at p. 879, quoting Couzens

& Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (Feb. 2015)

<http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 11, 2015]

p. 40.) The court further noted, “It is a rational allocation of burdens if the petitioner in

such cases bears the burden of showing that he or she is eligible for resentencing of what

was an otherwise valid sentence.” (Sherow, at p. 878; accord, People v. Rivas-Colon




                                               6
(2015) 241 Cal.App.4th 444, 449.) We believe the court in Sherow reached the correct

result on the issue, and we adopt the analysis and conclusion of that court.

       In Sherow, the court explained that it was entirely appropriate, fair, and reasonable

to allocate the initial burden of proof to the petitioner to establish the facts upon which

eligibility is based because the defendant knows what items he possessed. In the instant

case, defendant knows what items he possessed. Thus, “[a] proper petition could

certainly contain at least [defendant’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.]” (Sherow, supra, 239

Cal.App.4th at p. 880.)

       Here, defendant’s petition gave the trial court no information on the value of the

property. He has thus failed to show his eligibility for resentencing. (People v. Rivas-

Colon, supra, 241 Cal.App.4th at pp. 449-450; § 1170.18, subd. (b) [“the court shall

determine whether the petitioner satisfies the criteria in subdivision (a)”] & subd. (g)

[court must designate the offense as a misdemeanor “[i]f the application satisfies the

criteria”]; 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”].) As such, the court properly denied defendant’s resentencing petition.5

       5 Having reached this result, we need not consider defendant’s arguments that his
due process rights were violated, or that the court could rely on the police report and the
recycling center receipt when determining the value of the stolen property. We express
no opinion on what evidence the trial court may consider when ruling on a petition for
resentencing brought pursuant to section 1170.18.


                                               7
                                            III

                                     DISPOSITION

       The order denying defendant’s petition for resentencing on his receiving stolen

property conviction (§ 496, subd. (a)) is affirmed without prejudice.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               RAMIREZ
                                                                                     P. J.
We concur:



McKINSTER
                          J.



CODRINGTON
                          J.




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