Filed 3/23/16 P. v. Aguayo CA1/4
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144051
v.
JOHN AGUAYO,                                                         (Solano County
                                                                     Super. Ct. No. VCR219459)
         Defendant and Appellant.



         Defendant John Aguayo appeals from the trial court’s denial of his petition to
recall his sentence pursuant to Penal Code section 1170.18,1 a recently enacted provision
of Proposition 47, and to reduce his prior conviction for unlawful driving or taking of a
vehicle (Veh. Code, § 10851, subd. (a)) from a felony to a misdemeanor. Because
Aguayo has not met his burden to show that he is eligible for resentencing under
Proposition 47, we affirm the denial of his petition without prejudice.
                                               I. BACKGROUND
         A complaint filed on December 3, 2013 charged Aguayo with (1) felony evading
of a peace officer with willful disregard (Veh. Code, § 2800.2, subd. (a)); (2) felony
driving in a direction opposite to traffic while evading an officer (Veh. Code, § 2800.4);
(3) felony unlawful driving or taking of a 1995 Acura Integra (Veh. Code, § 10851,
subd. (a)), (4) felony receiving of the 1995 Acura Integra, knowing it was stolen (§ 496d,
subd. (a)), and (5) possession of burglary tools (a misdemeanor) (§ 466).
         1
             All statutory references are to the Penal Code unless otherwise stated.


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       On December 12, 2013, as part of a negotiated resolution of the case, Aguayo
entered a plea of no contest to the charge of felony unlawful driving or taking of a
vehicle, and the court dismissed the remaining counts on the prosecution’s motion. The
court suspended imposition of sentence, placed Aguayo on three years’ formal probation,
and ordered him to serve 120 days in jail. On three subsequent occasions, Aguayo
admitted to violating the terms of his probation; in each instance, the court reinstated
probation.
       On December 10, 2014, while still on probation, Aguayo filed a petition pursuant
to section 1170.18 (the resentencing provision of Proposition 47), asking the court to
recall his felony sentence and to resentence him to a misdemeanor. In his petition,
Aguayo argued that (1) the unlawful driving or taking of a vehicle under Vehicle Code
section 10851, subdivision (a) is a theft offense, and (2) pursuant to section 490.2 (added
by Proposition 47), the theft of a vehicle valued at less than $950 is a misdemeanor. The
petition stated there was no evidence in the record that the value of the vehicle in the
present case was more than $950. The petition also stated that “the condition of the
vehicle according to the reports appears to be poor as the vehicle is older and had faded
paint on the hood and roof.”
       At the hearing on Aguayo’s petition, the deputy district attorney argued Aguayo
was not eligible for resentencing because Vehicle Code section 10851 is not “one of the
enumerated offenses” eligible for resentencing under Proposition 47. The deputy district
attorney also argued Aguayo, the moving party, had not met his burden to show he was
eligible for resentencing.
       Aguayo’s counsel responded by arguing that, under section 490.2, the theft of a
vehicle valued at $950 or less is a misdemeanor. Aguayo’s counsel suggested a
defendant seeking resentencing under Proposition 47 should not bear the burden to prove
the value of the vehicle involved. As to the value of the 1995 Acura Integra involved in
the present case, counsel for Aguayo stated that, based on the year, make and model of
the car, and after reviewing Kelley Blue Book, “the information that we have is that it
would be less than $950.” Counsel added: “We have not been provided any information


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from the district attorney that would state contrary to this.” Aguayo’s counsel did not
offer to present evidence as to the value of the vehicle.
       After hearing the parties’ arguments, the trial court denied Aguayo’s resentencing
petition without prejudice. The court concluded Aguayo was not entitled to relief
because Vehicle Code section 10851 is not one of the listed offenses that qualify for
resentencing under Proposition 47. The court also denied the petition based on the value
of the vehicle at issue. The court stated: “I think that the moving party [i.e., Aguayo]
bears the burden of establishing that the value [of the vehicle] falls below $950. And in
this motion, I have nothing to establish that.” Aguayo appealed.2
                                     II. DISCUSSION
       On appeal, Aguayo argues that, at least in some circumstances, a person convicted
under Vehicle Code section 10851, subdivision (a) is eligible for relief under Proposition
47, even though that offense is not listed as one of the crimes to which Proposition 47
applies. He also argues that denying relief to a person convicted under Vehicle Code
section 10851, subdivision (a) violates equal protection principles because relief is
available to similarly situated persons who are convicted of vehicle theft under other
statutes. As we explain, even if Aguayo’s statutory and constitutional arguments were
meritorious, he nonetheless would be ineligible for relief under Proposition 47 because he
failed to establish that the value of the vehicle involved in his offense was $950 or less.3



       2
        Aguayo sought to augment the appellate record with an arrest report that he
argued was relevant to the question of the value of the vehicle. The Attorney General
opposed the motion on the ground that the arrest report was not before the trial court
when it ruled on Aguayo’s resentencing petition, and this court denied Aguayo’s motion.
       3
         Because we conclude there was no evidence that the vehicle had a value of $950
or less, we need not, and do not, reach the merits of Aguayo’s statutory and constitutional
arguments. We note our Supreme Court has granted review in cases that involve the
question whether a defendant convicted under Vehicle Code section 10851 may be
eligible for relief under section 1170.18. (See People v. Page, review granted Jan. 27,
2016, S230793; see also People v. Haywood, review granted Mar. 9, 2016, S232250;
People v. Ortiz, review granted Mar. 16, 2016, S232344.)


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       In November 2014, California voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the
offenses were committed by otherwise ineligible defendants. (Id. at p. 1091.) Among
other things, Proposition 47 added section 490.2, which provides in part that,
“[n]otwithstanding Section 487 or any other provision of law defining grand theft,
obtaining any property by theft where the value of the money, labor, real or personal
property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty
theft and shall be punished as a misdemeanor,” unless the offense was committed by a
defendant who is required to register as a sex offender (§ 290) or has previously been
convicted of one or more serious or violent felonies listed in section 667,
subdivision (e)(2)(C)(iv). (§ 490.2, subd. (a).) Proposition 47 did not amend Vehicle
Code section 10851, subdivision (a), which makes it a crime to drive or take a vehicle
without the consent of the owner and with the intent either to permanently or temporarily
deprive the owner of title to or possession of the vehicle.4
       Proposition 47 also added a new resentencing provision, section 1170.18, which
permits “a person ‘currently serving’ a felony sentence for an offense that is now a
misdemeanor under Proposition 47 [to] petition for a recall of that sentence and request
resentencing in accordance with the statutes that were added or amended by Proposition
47.” (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.) “Section 1170.18 also
provides that persons who have completed felony sentences for offenses that would now



       4
         Vehicle Code section 10851, subdivision (a) provides: “Any person who drives
or takes a vehicle not his or her own, without the consent of the owner thereof, and with
intent either to permanently or temporarily deprive the owner thereof of his or her title to
or possession of the vehicle, whether with or without intent to steal the vehicle, or any
person who is a party or an accessory to or an accomplice in the driving or unauthorized
taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be
punished by imprisonment in a county jail for not more than one year or pursuant to
subdivision (h) of Section 1170 of the Penal Code or by a fine of not more than five
thousand dollars ($5,000), or by both the fine and imprisonment.”


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be misdemeanors under Proposition 47 may file an application with the trial court to have
their felony convictions ‘designated as misdemeanors.’ ” (Id. at p. 1093.)
       In the present case, Aguayo petitioned under section 1170.18 to have his felony
conviction reduced to a misdemeanor. His claim rests on the premise that, at least in
some circumstances, a person convicted under Vehicle Code section 10851,
subdivision (a) should receive the benefit of Proposition 47 even though the initiative
measure did not amend that statute or list it among the statutes to which it applies. Even
if his claim had merit, he would still need to establish that the value of the vehicle was
$950 or less in order to be entitled to relief under Proposition 47. (See §§ 490.2,
subd. (a), 1170.18, subd. (a); People v. Sherow (2015) 239 Cal.App.4th 875, 878–879
(Sherow).) As the trial court noted, and as Aguayo acknowledges, neither the record of
conviction nor Aguayo’s resentencing petition establishes the value of the 1995 Acura
Integra involved in Aguayo’s offense.
       Aguayo contends it is not his burden to prove that the value of the vehicle was
$950 or less. He argues that, since the prosecution bears the burden to prove a
defendant’s guilt of an alleged crime, the prosecution has the burden in the Proposition
47 resentencing context to establish that the property had a value in excess of $950.
       Courts have rejected Aguayo’s position and have held a petitioner moving for
relief under section 1170.18 has the burden to establish his eligibility for resentencing,
including, in the case of a theft offense, the burden to prove the value of the property did
not exceed $950. (People v. Perkins (2016) 244 Cal.App.4th 129, 136–137; People v.
Rivas–Colon (2015) 241 Cal.App.4th 444, 449–450; Sherow, supra, 239 Cal.App.4th at
pp. 878–880.) In Sherow, the court explained that it is important to bear in mind that a
person seeking relief under section 1170.18 “was validly convicted under the law
applicable at the time of the trial of the felony offenses.” (Sherow, supra, 239
Cal.App.4th at p. 878.) Accordingly, arguments directed to principles relating to proof of
guilt at the time of the initial prosecution are misplaced. (Id. at p. 880.) “[T]he
resentencing provisions of Proposition 47 deal with persons who have already been
proved guilty of their offenses beyond a reasonable doubt.” (Ibid.) According to the


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court in Sherow, “[i]t 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.” (Id. at p. 878.) This conclusion is a natural corollary of the
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; see Evid. Code, § 500.)
       We agree with the analysis in Sherow, and we hold Aguayo had the “initial burden
of proof” to “establish the facts[] upon which his or her eligibility is based,” including
showing the value of the vehicle did not exceed $950. (Sherow, supra, 239 Cal.App.4th
at pp. 879–880.) Here, Aguayo’s counsel’s assertions in the petition and at the hearing
about the vehicle’s likely value, without any evidence supporting them, are insufficient to
establish the vehicle’s value. Instead, a proper resentencing petition “could certainly
contain at least [Aguayo’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.)
       Aguayo contends that, because the record of conviction is silent as to the vehicle’s
value, the trial court should have presumed he was eligible for resentencing. Aguayo
cites People v. Guerrero (1988) 44 Cal.3d 343, 352 (Guerrero), in which our Supreme
Court stated that, when a court reviews the record of a prior conviction to determine
whether that conviction was of a type that would enhance the defendant’s current
sentence, and the record of the prior conviction “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 . . . .” But in the context discussed by the Guerrero court (i.e.,
where the prosecution seeks to enhance a current sentence based on the facts of a prior
case), the prosecution has the burden to establish any enhancements apply. (See People
v. Towers (2007) 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 prevents the
prosecution from meeting its burden to show the nature of the prior offense triggers an


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enhancement. In contrast, for the reasons discussed above, we conclude a petitioner
seeking resentencing under Proposition 47 has the initial burden to show facts
establishing eligibility, including, in the case of a theft offense, the value of the property
at issue. (Sherow, supra, 239 Cal.App.4th at pp. 879–880.) In that context, the absence
of record evidence cuts against the petitioner.
       Aguayo argues that decisions addressing the resentencing procedure under the
Three Strikes Reform Act of 2012 (Proposition 36) provide support for placing the
burden of proof on the prosecution in determining eligibility under Proposition 47.
Under section 1170.126, the resentencing provision of Proposition 36, a prisoner serving
a third strike sentence (an indeterminate life term) for a felony that is not statutorily
defined as serious and/or violent may petition to be resentenced and to receive a second
strike sentence of twice the term otherwise authorized for the current felony.
(§ 1170.126, subds. (b), (e)(1), (f); see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1); People
v. Johnson (2015) 61 Cal.4th 674, 679–680 (Johnson).) An inmate is disqualified from
resentencing if exceptions based on his or her current offense or prior offenses are
present. (§ 1170.126, subd. (e)(2)–(3); see §§ 667, subd. (e)(2)(C), 1170.12,
subd. (c)(2)(C); Johnson, supra, 61 Cal.4th at pp. 681–682.)
       As Aguayo notes, appellate courts have concluded that, when a trial court must
determine whether an inmate is ineligible for resentencing under Proposition 36 because
an exception based on his or her current or former offenses applies, the court must make
that determination based on the record of conviction. (People v. Bradford (2014) 227
Cal.App.4th 1322, 1337–1340; see People v. Manning (2014) 226 Cal.App.4th 1133,
1141–1143.) As to the burden of proof of such disqualifying factors, courts have held the
prosecution must prove a defendant’s current or prior offense renders him ineligible for
resentencing under Proposition 36. (People v. Osuna (2014) 225 Cal.App.4th 1020,
1029, 1040 (Osuna) [trial court must “find the existence of a disqualifying factor by a
preponderance of the evidence”]; see People v. Arevalo (2016) 244 Cal.App.4th 836,
848–850 [disagreeing with Osuna as to standard of proof; holding court must find beyond



                                               7
a reasonable doubt the existence of a factor rendering defendant ineligible for
resentencing].)
       Proposition 47, like Proposition 36, specifies disqualifying factors that may render
a defendant ineligible for resentencing. Specifically, a defendant who committed a
qualifying offense will nonetheless be ineligible for resentencing if he or she has one or
more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv)
(sometimes referred to as “ ‘super strikes’ ” (see Johnson, supra, 61 Cal.4th at pp. 681–
682)), or if he or she is required to register as a sex offender pursuant to section 290,
subdivision (c). (§ 1170.18, subd. (i).) Whichever party has the burden of proof as to the
existence of these disqualifying factors,5 we agree with Sherow and the other cases cited
above that a petitioner seeking relief under Proposition 47 has the initial burden to show
he committed a qualifying offense, including, as to a qualified theft offense, that the
value of the property taken did not exceed $950. (Sherow, supra, 239 Cal.App.4th at
pp. 879–880; accord, Perkins, supra, 244 Cal.App.4th at pp. 136–137; People v. Rivas–
Colon, supra, 241 Cal.App.4th at pp. 449–450; Couzens & Bigelow, Proposition 47 “The
Safe Neighborhoods and Schools Act,” supra, at pp. 42–43, 45–46 [petitioner has initial
burden to establish he or she committed a qualifying offense; prosecution has burden to
prove existence of disqualifying factor].) And we also agree that a petitioner seeking to
meet this initial burden may submit evidence outside the record of conviction, such as his
own declaration describing the property taken. (See Sherow, supra, 239 Cal.App.4th at
p. 880 [a proper resentencing petition under Proposition 47 “could certainly contain at
least [the defendant’s] testimony about the nature of the items taken”]; People v. Perkins,
supra, 244 Cal.App.4th at p. 140, fn. 5 [in many cases, “the value of the property was not
important at the time of conviction, so the record may not contain sufficient evidence to

       5
         Although we need not decide this question to resolve the present appeal, the
prosecution may bear the burden of establishing the existence of such disqualifying
factors under Proposition 47, as it does under Proposition 36. (See Osuna, supra, 225
Cal.App.4th at p. 1040 [Proposition 36]; Couzens & Bigelow, Proposition 47 “The Safe
Neighborhoods and Schools Act” (Feb. 2016), <www.courts.ca.gov/documents/Prop-47-
Information.pdf> [as of March 21, 2016] pp. 45–46.)


                                              8
determine its value”; petitioners may seek to meet their burden on this issue by
“submit[ting] extra-record evidence probative of the value when they file their petitions
for resentencing”].)
       Because Aguayo did not submit evidence with his petition to satisfy his initial
burden as to the value of the vehicle involved in his offense, we affirm the trial court’s
denial of his Proposition 47 resentencing petition.
                                   III. DISPOSITION
       The order denying Aguayo’s petition to recall his sentence and for resentencing
under section 1170.18 is affirmed, without prejudice to consideration of a properly filed
petition.




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                                 _________________________
                                 Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




A144051/People v. Aguayo


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