Filed 2/22/16 P. v. Frias CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041938
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1368415)

             v.

FRANCISCO JAVIER FRIAS,

         Defendant and Appellant.



         Appellant Francisco Javier Frias appeals from an order denying his petition for
Proposition 47 resentencing. On appeal, appellant contends that the trial court erred in
ruling that he was ineligible for Proposition 47 relief, and he alternatively contends that
he received ineffective assistance of counsel at the Proposition 47 hearing.
                                                   BACKGROUND
         A felony complaint, filed on October 24, 2013, charged appellant with the
following offenses: first degree burglary (Pen. Code, §§ 459/460, subd. (a); count 1);
grand theft of personal property of a value over $950 (Pen. Code, §§ 484/487, subd. (a);
count 2); and buying, receiving, concealing, or withholding stolen property (Pen. Code,
§ 496, subd. (a); count 3). The complaint described the property involved in count 2 as
“GPS, sunglasses, ipod touch, backpack, bluetooth, binoculars, electronic cables, and a
radio,” and it described the property involved in count 3 as “GPS, sunglasses, ipod touch,
backpack, bluetooth, binoculars, electronic cables, and a radio.” The complaint alleged a
prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i))/1170.12), a prior serious felony
conviction (Pen. Code, § 667, subd. (a)), and two prior prison terms (Pen. Code, § 667.5,
subds. (a) & (b)).
       On March 4, 2014, appellant pleaded no contest to count 3, a violation of Penal
Code section 496, subdivision (a). Appellant admitted a prior strike conviction (Pen.
Code, §§ 667, subds. (b)-(i))/1170.12) and one prior prison term (Pen. Code, § 667.5,
subd. (b)). The remaining charges and allegations were dismissed. On May 23, 2014, the
trial court sentenced appellant to five years in prison.
       On December 11, 2014, appellant filed a petition for Proposition 47 resentencing.
The petition requested recall of appellant’s felony sentence and resentencing as a
misdemeanor. The petition contained no facts or evidence regarding the value of the
property involved in appellant’s offense.
       The trial court denied appellant’s resentencing petition on January 12, 2015.
Before issuing its ruling, the trial court stated: “In this matter, the value of the stolen
property appears to be well in excess of $950. The items in the subject count, Count
Three, are listed identically to those in the count that was dismissed as part of the plea
bargain, Count Two, which is in excess of $950.” After this comment, the trial court
asked, “Does either party have anything further?” The prosecutor and appellant’s
attorney both said no. The trial court then stated: “The petition is denied. [Appellant] is
ineligible.”
                                         DISCUSSION
       Appellant contends that we must reverse the order denying resentencing because
the trial court erred in finding him ineligible for Proposition 47 relief. He alternatively
asserts that we must reverse because he received ineffective assistance of counsel. As set
forth below, we must affirm.



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Appellant Has Failed to Show that the Trial Court Erred in Finding Him Ineligible for
Resentencing
       On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47
“reduced the penalties for a number of offenses.” (People v. Sherow (2015) 239
Cal.App.4th 875, 879 (Sherow)).
       Proposition 47 amended Penal Code section 496, the statute under which appellant
was convicted. As pertinent here, Penal Code section 496 now provides: “Every person
who buys or receives any property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to be so stolen or obtained,
or who conceals, sells, withholds, or aids in concealing, selling, or withholding any
property from the owner, knowing the property to be so stolen or obtained, shall be
punished by imprisonment in a county jail for not more than one year, or imprisonment
pursuant to subdivision (h) of Section 1170. However, if the value of the 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 . . . .” (Pen.
Code, § 496, subd. (a), italics added.)
       Penal Code section 1170.18, which was added by Proposition 47, “creates a
process where persons previously convicted of crimes as felonies, which would be
misdemeanors under the new definitions in Proposition 47, may petition for
resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 879.) Penal Code section 1170.18,
subdivision (a) specifies that a person may petition for resentencing in accordance with
the amended version of Penal Code section 496.
       “As an ordinary proposition: ‘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.’ [Citations.]” (Sherow, supra, 239 Cal.App.4th at p. 879.) Thus, “a petitioner

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for resentencing under Proposition 47 must establish his or her eligibility for such
resentencing.” (Id. at p. 878.) The petitioner for resentencing has the “initial burden of
proof” to “establish the facts . . . upon which his or her eligibility is based.” (Id. at
p. 880.) “ ‘If the crime under consideration is a theft offense under [Penal Code] sections
459.5, 473, 476a, 490.2 or 496, the petitioner will have the burden of proving the value of
the property did not exceed $950.’ [Citation.]” (Id. at p. 879.) In making such a
showing, “[a] proper petition could certainly contain at least [the petitioner’s] testimony
about the nature of the items taken.” (Id. at p. 880.) If the petition makes a sufficient
showing, the trial court “can take such action as appropriate to grant the petition or permit
further factual determination.” (Ibid.)
       “Perhaps the most fundamental rule of appellate law is that the judgment
challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively
demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “The
very settled rule of appellate review is a trial court’s order/judgment is presumed to be
correct, error is never presumed, and the appealing party must affirmatively demonstrate
error on the face of the record.” (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
       Here, appellant’s claim of error is based on the assumption that the property
involved in his offense was valued at $950 or less. Appellant’s Proposition 47 petition,
however, did not contain any facts or evidence showing that the value of the property was
$950 or less. Nor does the record of appellant’s conviction contain any evidence
showing a value of $950 or less. Appellant thus did not meet his burden of proving the
value of the property was $950 or less, and nothing in the record supports appellant’s
theory that the property was worth $950 or less. Given that nothing before us shows that
the value of the property was $950 or less, appellant has failed to demonstrate that the
trial court erred in finding him ineligible for Proposition 47 relief.



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       Appellant contends that it would violate due process principles to affirm based on
the lack of evidence showing that the property was worth $950 or less. He asserts that
such a holding would violate his “due process right to present briefing to the trial court”
on the issue of value. Appellant’s argument is unavailing. Appellant had an opportunity
to present briefing to the trial court on the issue of value. His Proposition 47 petition
could have contained facts, evidence, and arguments regarding the value of the property,
but the petition was devoid of any such facts, evidence, or arguments. (See Sherow,
supra, 239 Cal.App.4th at p. 880 [a “proper petition could certainly contain at least” the
petitioner’s testimony about the stolen item].) Because appellant had an opportunity to
be heard on the issue of value, his due process argument fails.
Appellant Has Failed to Establish Ineffective Assistance of Counsel
       Appellant contends that his attorney at the Proposition 47 hearing “was ineffective
by failing to object to the [trial] court’s factual determination on the value of the property
at issue.” (Capitalization omitted.) Appellant emphasizes that counsel should have
presented “facts or argument” to show that the property was valued at $950 or less.
Appellant has failed to show ineffective assistance of counsel.
       Appellant bears the burden of proving ineffective assistance of counsel. (People v.
Carter (2003) 30 Cal.4th 1166, 1211.) “To prevail on an ineffective assistance of
counsel claim, appellant must prove two elements: (1) trial counsel’s deficient
performance and (2) prejudice as a result of that performance.” (People v. Martinez
(2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S.
668, 687.) When the issue is raised on appeal, ineffective assistance must be established
“based upon the four corners of the record.” (People v. Cunningham (2001) 25 Cal.4th
926, 1003 (Cunningham).) “A factual basis, not speculation, must be established before
reversal of a judgment may be had on grounds of ineffective assistance of counsel.”
(People v. Williams (1988) 44 Cal.3d 883, 933.)

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       Here, appellant cannot show prejudice on the four corners of the record.
Appellant suffered prejudice only if the property involved in his offense was valued at
$950 or less. (See generally Cunningham, supra, 25 Cal.4th at p. 1003 [prejudice exists
if “there is a reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings”].) As explained above, however, nothing in the
record shows that the property was worth $950 or less. Because nothing in the record
shows a value of $950 or less, it would be improper speculation to conclude that
appellant was prejudiced by counsel’s failure to object and argue that the property was
worth $950 or less. On this record, we cannot find prejudice, and appellant’s claim of
ineffective assistance of counsel fails.
       Appellant contends that counsel rendered ineffective assistance by failing to argue
that determination of eligibility for Proposition 47 resentencing is “limited to the record
of conviction” and by failing to argue that the trial court must “presume” the value of
property is less than $950 when the record of conviction is silent on the issue of value.
Appellant’s contention is meritless. The petitioner bears the burden of proving eligibility
for Proposition 47 resentencing, and the petitioner may present new evidence—such as a
declaration or other testimony—to establish such eligibility. (Sherow, supra, 239
Cal.App.4th at pp. 879-880.) Counsel thus was not deficient in refraining from
presenting the arguments espoused by appellant.
We Affirm Without Prejudice
       In sum, appellant has failed to demonstrate error, and we therefore must affirm.
We will affirm without prejudice. We note that a petition containing a declaration
regarding the value of the stolen property could be sufficient to set the resentencing
matter for hearing. (See Sherow, supra, 239 Cal.App.4th at p. 880 [a proper resentencing
petition “could certainly contain at least” the petitioner’s testimony about the stolen item,



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and on a sufficient showing the trial court “can take such action as appropriate to grant
the petition or permit further factual determination”].)
                                       DISPOSITION
        The order denying the petition for resentencing is affirmed without prejudice to
subsequent consideration of a petition that demonstrates stolen property valued at $950 or
less.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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