Filed 7/19/16 P. v. Nodal CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051360

         v.                                                            (Super. Ct. No. 08NF3321)

ELISEO NODAL,                                                          OPINION

     Defendant and Appellant.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Jonathan S. Fish, Judge. Affirmed.
                   Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
              Eliseo Nodal appeals from the postjudgment order denying his petition to
redesignate two felony convictions as misdemeanors pursuant to Penal Code
section 1170.18, enacted as part of Proposition 47, an initiative passed by the voters in
November 2014.1
              In 2008, Nodal pleaded guilty to a felony violation of Vehicle Code
section 10851, subdivision (a) [vehicle theft], a felony violation of section 496d,
subdivision (a) [receiving a stolen vehicle], and a violation of Health and Safety Code
section 11350, subdivision (a) [possessing a controlled substance]. The trial court
sentenced him to three years in prison. In December 2014, Nodal filed a petition
pursuant to section 1170.18, subdivision (f), to redesignate these felonies as
misdemeanors. The court granted the motion as to the drug possession conviction but
denied the motion as to the other two counts. Nodal appealed, contending the broad
sweeping language of Proposition 47 applies to the theft or receipt of any kind of stolen
property, including vehicles, where the value is less than $950 and where the defendant
has no disqualifying prior convictions.
              This issue has generated conflicting opinions in the Court of Appeal, and it
is currently before the California Supreme Court. We need not address it, however,
because even assuming automobile theft can be treated as petty theft pursuant to section
490.2, subdivision (a), if the value of the vehicle is $950 or less, Nodal failed to produce
evidence of the value of the vehicle, and thus failed to demonstrate his eligibility for
relief under section 1170.18, subdivision (f). Consequently, we affirm the postjudgment
order without prejudice to subsequent consideration of a properly filed petition.
                                              I
              Section 490.2 was enacted pursuant to Proposition 47. Subdivision (a) of
section 490.2 states, “Notwithstanding [s]ection 487 or any other provision of law

1             All further statutory references are to the Penal Code, unless otherwise
indicated.

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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,” with some exceptions
not relevant here. This statute is particularly important in the context of section 1170.18,
where a defendant’s ability to convert a prior felony into a misdemeanor depends on
whether the defendant “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 . . . .”
(§ 1170.18, subd. (a).) Proposition 47 did not amend section 496d or Vehicle Code
section 10851, both of which continue to be punishable as a felonies.
               Many courts have struggled with the question whether the catch-all
provision of section 490.2 renders vehicle thefts misdemeanors if the vehicle is valued at
less than $950. In People v. Page (2015) 241 Cal.App.4th 714, review granted January
27, 2016, S230793, the court reasoned Vehicle Code section 10851 is not a theft statute
and is thus unaffected by section 490.2. A similar result was reached in People v. Solis
(2016) 245 Cal.App.4th 1099, review granted June 8, 2016, S234150, and People v.
Haywood (2015) 243 Cal.App.4th 515, review granted March 9, 2016, S232250. The
opposite conclusion was reached in People v. Ortiz (2016) 243 Cal.App.4th 854, review
granted March 16, 2016, S232344. The Supreme Court has also granted review in two
cases where the felony conviction was for receiving a stolen vehicle (§ 496d). (People v.
Nicholas (2016) 244 Cal.App.4th 681, review granted April 20, 2016, S233055, and
People v. Peacock (2015) 242 Cal.App.4th 708, review granted February 17, 2016,
S230948.)
               We need not address this issue because even assuming vehicle theft falls
within the ambit of section 1170.18, Nodal failed to demonstrate his eligibility for relief
because he failed to present any evidence the vehicle in question was valued at $950 or
less.



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              As petitioner in the trial court, it was Nodal’s burden to offer evidence on
the facts necessary to justify relief. (People v. Sherow (2015) 239 Cal.App.4th 875, 879
(Sherow).) In the Sherow case, petitioner, who had been convicted of second degree
burglary, sought to be resentenced pursuant to section 1170.18, subdivision (a), but
provided no evidence in conjunction with his petition, and there was nothing in the record
indicating the value of the property he stole. (Id. at p. 877.) In concluding the burden
was on petitioner, the court reasoned, “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.”’” (Id. at p. 879.) It rejected petitioner’s due
process argument, holding, “We think it is entirely appropriate to allocate the initial
burden of proof to the petitioner to establish the facts, upon which his or her eligibility is
based. [¶] Applying the burden to [petitioner] would not be unfair or unreasonable. He
knows what kind of items he took from the stores in counts 1 and 2. At the time of trial it
was not necessary for the prosecution to prove the value of the loss to prove second
degree burglary. Thus there is apparently no record of value in the trial record. [¶] A
proper petition could certainly contain at least [petitioner’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.” (Id. at p. 880.)
              We agree with this legal analysis. A court must determine “petitioner’s
eligibility for resentencing based on the record of conviction.” (People v. Bradford
(2014) 227 Cal.App.4th 1322, 1338 [as to Prop. 36 & § 1170.126].) Moreover, section
1170.18, subdivision (g), states, “If the application satisfies the criteria in subdivision (f),
the court shall designate the felony offense or offenses as a misdemeanor.” (Italics
added.) Although section 1170.18 does not explicitly allocate the burden of proof,
requiring that “the application” satisfy the appropriate criteria strongly suggests the
burden is on the petitioner.



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              Applying these principles here, Nodal’s petition contained no evidence of
the value of the vehicle stolen. All that can be discerned from the felony complaint is
that it was alleged to be a 1991 Acura, and was thus approximately 17 years old in 2008,
when Nodal admitted to possessing it. To the extent this suggests a value, it does not
suggest a value of $950 or less.2 Accordingly, Nodal failed to demonstrate his eligibility
for relief under section 1170.18. In the Sherow case, the court affirmed the denial of
defendant’s petition “without prejudice to subsequent consideration of a properly filed
petition.” (Sherow, supra, 239 Cal.App.4th at p. 881.) We will do the same.
                                              II
              The postjudgment order is affirmed without prejudice to subsequent
consideration of a properly filed petition.


                                                   O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.

2              In his reply brief, Nodal implicitly acknowledges he did not establish the
value of the stolen vehicle was less than $950 at the hearing, asserting it was “a matter to
be determined by the trial court upon presentation of evidence by both parties,” but the
court never “enter[ed] into any discussion as to the value of the property, as it summarily
rejected [his] application for relief.” He fails, however, to point to any evidence that
could have been presented at the hearing that would have shown the stolen 1991 Acura
involved in this case was worth less than $950. A vehicle’s value cannot be argued from
a silent record given the well-settled rule that “‘[a] judgment or order of the lower court is
presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.’”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

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