Filed 5/6/16 P v. Tennyson 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063385

v.                                                                      (Super.Ct.No. RIF1209901)

TREMAINE MARCELL TENNYSON,                                              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, Andrew Mestman and Arlene A.

Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Tremaine Marcell Tennyson appeals after the trial court

denied his application for resentencing under Penal Code section 1170.18. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       Defendant was charged by a felony complaint on November 21, 2012, with one

count of first degree burglary, for entering a house with intent to commit theft or another

felony, and one count of active participation in a criminal street gang. The complaint

also alleged that defendant had a prior strike conviction, and alleged that defendant had

suffered a prior serious or violent felony conviction, both based on a 2011 conviction for

first degree burglary. Finally, the complaint alleged that the new offenses constituted a

violation of defendant’s probation in an earlier case.

       In January 2013, before the preliminary hearing, defendant entered into a plea

agreement. The complaint was amended orally to add a third count, a felony charge of

receiving stolen property. Defendant agreed to plead guilty to first degree burglary and

receiving stolen property; the gang offense would be dismissed. Defendant also agreed to

admit his strike prior, but was not required to admit the prior serious and violent felony

five-year enhancement. The agreed sentence was a term of five years four months in

state prison.

       At sentencing on January 31, 2013, the court imposed the agreed sentence. It

selected the first degree burglary as the principal offense, and imposed the low term of

two years; that term was doubled to four years because of defendant’s strike prior. The

court also imposed one-third the middle term on the receiving stolen property offense, or

eight months, which was also doubled to 16 months because of defendant’s strike. The

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sentences were ordered to be served consecutively. Further, the court reserved

jurisdiction on the issue of restitution. Defendant’s plea agreement showed that he had

agreed to pay victim restitution of $12,599.71. The court advised defendant that he

would be able to seek a hearing if any dispute arose about the amount of restitution

beyond the agreed sum.

        Nearly one year later, in late December 2014, defendant filed a petition for

resentencing or for reduction of the offense to a misdemeanor, pursuant to Penal Code

section 1170.18, subdivisions (a) and (f). Defendant’s petition did not purport to seek

resentencing or redesignation of the offense as to the first degree burglary count. His

petition applied only as to the receiving stolen property offense, and he stated his belief

that the property involved in that offense was valued at $950 or less. He alleged that he

was currently serving a prison sentence for that offense, as required by the statute.

        The People responded to defendant’s petition, noting that the first degree burglary

offense was not one of the qualifying offenses listed in the statute, and asserting that the

property subject to the receiving stolen property conviction was of a value greater than

$950.

        The trial court denied defendant’s petition based on the restitution order for

$12,599, as stated on defendant’s plea agreement. He now appeals the denial of his

petition.




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                                        ANALYSIS

                             I. Background of Proposition 47

       On November 4, 2014, California voters enacted Proposition 47, The Safe

Neighborhoods and Schools Act. Proposition 47 has the following provisions: (1) It

requires a misdemeanor sentence instead of a felony sentence for certain drug possession

offenses; (2) it requires a misdemeanor sentence instead of a felony sentence for the

crimes of petty theft, receiving stolen property, and forging/writing bad checks, when the

amount involved is $950 or less; (3) it allows a felony sentence (excluding a defendant

from a misdemeanor sentence) for the crimes specified above if a defendant has a prior

conviction listed under Penal Code section 667, subdivision (e)(2)(C)(iv), or a prior

conviction for an offense requiring sex offender registration under Penal Code

section 290; and (4) it requires resentencing for defendants serving felony sentences for

the crimes specified above unless the trial court finds an unreasonable public safety risk.

(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Official Title and Summary, pp. 34,

70; see, e.g., Pen. Code, §§ 459.5, subd. (a), 473, subd. (b), 476a, subd. (b), 490.2,

subds. (a), (b), 496, subd. (a), 666, subds. (a), (b); Health & Saf. Code, §§ 11357,

subd. (a), 11377, subds. (a), (b).) The initiative became effective on November 5, 2014.

(Cal. Const., art. II, § 10, subd. (a) [“An initiative statute or referendum approved by a

majority of votes thereon takes effect the day after the election unless the measure

provides otherwise.”].)




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     II. Defendant Bore the Burden to Establish the Value of the Property Involved

       Defendant contends that the trial court erred in denying his petition as to the

receiving stolen property conviction because there was no evidence on the face of the

trial record that the value of the property involved in that charge exceeded $950. He

argues that the prosecution should bear the burden of proof on the issue of the valuation

of the property involved because, in order to achieve the conviction, it was the

prosecution’s burden of proving all elements of the crime, including the value of the

property.

       We consider People v. Sherow (2015) 239 Cal.App.4th 875 controlling on the

issue. The Sherow court noted that Proposition 47 did not explicitly allocate the burden

of proof on issues such as the value of property involved in a qualifying theft-related

offense. (Id. at p. 878.) However, the court held that “a petitioner for resentencing under

Proposition 47 must establish his or her eligibility for such resentencing. In such cases, it

is important to keep in mind a person . . . was validly convicted under the law applicable

at the time of the trial of the felony offenses. 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.” (Ibid.) Allocating the burden of

proof to the petitioner is fair and reasonable because the petitioner knows what property

was involved in the offense (here, receiving stolen property). Defendant, of all people,

knows what stolen property he pleaded guilty to possessing. It is not burdensome to

require him to state, in his petition, his knowledge of the property involved and a fair and

reasonable estimation of its value. A generic statement of belief that the value of the

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property, not otherwise identified, did not exceed $950, is insufficient to state a prima

facie case of eligibility for resentencing. (See People v. Perkins (2016) 244 Cal.App.4th

129, 136.) “Defendant did not meet his burden in this case. Defendant submitted a form

that asserted he was convicted for receipt of stolen property and that the value of the

property did not exceed $950. But he did not indicate anywhere on the form the factual

basis of his claim regarding the value of the stolen property.” (Id. at p. 137.) For this

reason, the trial court properly denied defendant’s petition for resentencing.

                                       DISPOSITION

       We affirm the order denying defendant’s petition for resentencing of his

conviction for receiving stolen property, but without prejudice to consideration of a

subsequent petition that supplies evidence of his eligibility.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 McKINSTER
                                                                                            J.
We concur:



RAMIREZ
                        P. J.



CODRINGTON
                           J.




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