Filed 1/7/16 P. v. West 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063304

v.                                                                       (Super.Ct.No. RIF1100385)

FRANCISCO DANIEL WEST,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

         Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Seth Friedman and Heidi Salerno, Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
       Defendant and appellant, Francisco Daniel West, filed a petition for resentencing

pursuant to Penal Code section 1170.18,1 which the court denied. On appeal, defendant

contends the court abused its discretion in denying defendant’s petition. We affirm.

                               I. PROCEDURAL HISTORY

       On February 1, 2011, the People charged defendant by felony complaint with

receipt of stolen property (count 1; § 496, subd. (a)) and the unlawful destruction or

concealment of evidence (count 2; § 135). The People additionally alleged defendant had

violated the terms of his probation in two separate cases. (§ 1203.2, subd. (b).)

       On March 3, 2011, pursuant to a plea agreement, defendant pled guilty to the

count 1 offense and admitted violating his probation in both other cases. In return, the

other charge was dismissed and defendant was granted 36 months of probation.

       The factual basis of defendant’s plea consisted of his initials on the plea form in a

box next to a sentence reading: “I agree that I did the things that are stated in the charges

that I am admitting.” In addition, defendant affirmatively responded to the court’s

question of whether it was “true that on December 24th of last year, in this county, you

did, in fact, receive jewelry that was obtained by theft, and you knew it had been so

obtained?” The value of the stolen jewelry obtained by defendant is not reflected in any

admissible evidence in this record.

       On June 13, 2011, the probation department filed a petition to revoke defendant’s

probation because he had failed to report for weekend custody and had been arrested for

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

                                              2
possessing heroin.2 On November 9, 2011, defendant admitted violating his probation.

On the same date, defendant pled guilty in five separate cases, in two cases for first

degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)), one with a knife allegation (Pen.

Code, § 12022, subd. (b)(1)), and in three cases for the unlawful possession of a

controlled substance (Health & Saf. Code, § 11350).

       On December 21, 2011, defendant pled guilty in another case for first degree

burglary (§ 211) committed while released on bail (§ 12022.1, subd. (b)). The court

sentenced defendant to an agreed aggregate sentence of 10 years 8 months’ imprisonment

encompassing all seven cases.

       On December 15, 2014, defendant filed a petition for resentencing pursuant to

section 1170.18. On or about February 14, 2014, the People filed a response in which

they asserted defendant was ineligible for resentencing because the stolen jewelry he pled

guilty to receiving was worth several thousand dollars. On March 9, 2015, the court

denied defendant’s petition because the “loss was over $950.00.”

                                     II. DISCUSSION

       Defendant contends the court abused its discretion in denying his petition in

reliance upon the People’s unsworn statement that the value of the stolen jewelry was

worth several thousand dollars. Defendant contends the People bore the burden of

proving by admissible evidence that the value of the jewelry exceeded $950. We hold


       2 We take judicial notice of our opinion in case No. E055719 from defendant’s
previous appeal in this case. (Evid. Code, § 459, subd. (a).)

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that defendant bore the burden of proving his eligibility for resentencing. Thus, any

reliance by the court upon the People’s statement of the value of the jewelry was

harmless because defendant failed his burden to prove the value of the jewelry was $950

or less.

       On November 4, 2014, “the voters approved Proposition 47. [Citation.] The

initiative added . . . [section] 1170.18 to the Penal Code . . . and amended Health and

Safety Code sections 11350, 11357 and 11377. [Citation.]” (People v. Shabazz (2015)

237 Cal.App.4th 303, 308.) Section 1170.18, subdivision (a), provides that: “A person

currently serving a sentence for a conviction, whether by trial or plea, of a felony or

felonies who would have been guilty of a misdemeanor under the act that added this

section . . . had this act been in effect at the time of the offense may petition for a recall of

sentence before the trial court that entered the judgment of conviction in his or her case to

request resentencing in accordance with. . . Section 459.5, 473, 476a, 490.2, 496, or 666

of the Penal Code, as those sections have been amended or added by this act.” Section

496 now defines the crime of receiving stolen property as a misdemeanor if the value of

the stolen property does not exceed $950.

       “The burden of proof lies with defendant to show the facts demonstrating his

eligibility for relief, including that the value of the stolen [property] did not exceed $950.

[Citation.]” (People v. Page (2015) 241 Cal.App.4th 714, 719, fn. 2. [Fourth Dist., Div.

Two].) “[I]t 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.” (People v. Sherow


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(2015) 239 Cal.App.4th 875, 880 [defendant failed his burden to establish eligibility for

resentencing under § 1170.18 by failing to prove the value of the items he was convicted

of taking did not exceed $950]; see In re Champion (2014) 58 Cal.4th 965, 1006-1007

[defendant in petition for writ of habeas corpus “‘“bears a heavy burden initially to plead

sufficient grounds for relief, and then later to prove them.”’”]); People v. Kim (2009) 45

Cal.4th 1078, 1101 [defendant bears burden of producing evidence on petition for writ of

coram nobis]; In re Paul W. (2007) 151 Cal.App.4th 37, 71 [“The petitioner has the

burden of proving the factual contentions contained in the petition by a preponderance of

the evidence.”].)

       Here, defendant failed to plead or prove that the value of the stolen objects he pled

guilty to receiving were worth $950 or less. Thus, regardless of any reliance upon the

People’s statement the jewelry was worth thousands of dollars, the court properly denied

defendant’s petition because he failed to meet his burden of proof and production.

                                    III. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                             J.
We concur:

HOLLENHORST
          Acting P. J.

MILLER
                          J.
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