Filed 4/6/17 P. v. Guerrero CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

REBECCA VELVIE GUERRERO,

Defendant and Appellant.
C080459

(Super. Ct. No. CR100963)




Defendant Rebecca Velvie Guerrero appeals from the trial court’s order denying her Penal Code section 1170.18 petition to redesignate her felony conviction for receiving stolen property to a misdemeanor. She contends the trial court erred in finding she did not qualify for relief because the value of property underlying her crime exceeded $950. We affirm.
BACKGROUND
According to the factual basis of defendant’s plea, on November 21, 2009, the victim of a burglary saw defendant driving a car. The victim tried to confront defendant, who fled the vehicle. The victim’s property was found in the vehicle. According to the probation report, the victim’s Coach brand purse had been stolen from her car. The purse was found in plain view in defendant’s car. It contained a Coach wallet, Versace reading glasses, $360 in cash, credit cards, identification, and social security cards for the victim’s children.
Defendant was charged with receiving stolen property and second degree burglary. As to the receiving charge, the complaint alleged that defendant received: “Purse, Glasses, Credit Cards, School ID, Money, Wallet . . . .” She pled no contest to felony receiving stolen property. The plea did not include a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
At the sentencing hearing, defense counsel stated, “I’m not sure even restitution on possession of stolen property is appropriate. But if it were to be imposed, it should not exceed the sum of the receipts.” Shortly thereafter, when the trial court asked about the amount of restitution it should order, the prosecutor said, without objection from defendant, “[w]e agreed $1,160.90, your Honor.” The trial court placed defendant on three years’ formal probation, subject to various conditions including paying $1,160.90 in victim restitution.
In January 2015, defendant filed a section 1170.18 petition to designate her receiving stolen property conviction as a misdemeanor. At the hearing on the petition, defense counsel asserted that the replacement value of the items listed in the complaint was less than $900, which did not take into account that the items were used. He thought the actual value was around $500. After conferring with the prosecutor, defense counsel stated that the prosecution and defense agreed that the value of the items was $950.
The prosecutor replied that the complaint did not list all of the stolen property received by defendant, and the restitution order that defendant agreed to at sentencing set the value of the stolen items. Defense counsel countered, “You can order restitution and replacement value that well exceeds the value of the items charged, but the items that Ms. Guerrero admitted to when she entered the plea are the ones listed in the Complaint and those are under $950.”
The trial court denied the petition, finding that the value of the property exceeded $950, as shown by the restitution order.
DISCUSSION
The passage of Proposition 47 created section 1170.18, which provides: “A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) Among the crimes changed by Proposition 47 is receiving stolen property, which, subject to certain exceptions not relevant here, is a misdemeanor unless the value of the stolen property exceeds $950. (§ 496, subd. (a).)
Defendant contends that the trial court erred because she submitted evidence showing the replacement value of the items listed in the complaint did not exceed $950. She claims the value of stolen items in a receiving stolen property conviction differs from the amount a trial court can order for restitution, as restitution can include the replacement cost or repair cost of the property, as well as every economic loss suffered as a result of the crime. (See § 1202.4, subd. (f).) From this, she infers that “a restitution order, which includes every economic loss to the victim, can not [sic] be solely indicative of the value of the property.” Defendant concludes that the trial court erred in relying on the restitution order and should have granted the petition based on the evidence she submitted.
As petitioner, defendant bears the burden of proving her eligibility for resentencing. (Evid. Code, § 500; People v. Sherow (2015) 239 Cal.App.4th 875, 878; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449; People v. Perkins (2016) 244 Cal.App.4th 129, 139-140.) The inquiry regarding a defendant’s eligibility for relief under section 1170.18 is not limited “to evidence from the petitioning defendant’s record of conviction.” (People v. Johnson (2016) 1 Cal.App.5th 953, 967.)
Whether defendant’s crime involved $950 or less worth of property is a question of fact. We review the trial court’s determination of factual issues under the deferential substantial evidence standard. (People v. Cromer (2001) 24 Cal.4th 889, 893-894.) Under this standard, we review the facts in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence supporting the trial court’s ruling. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We may not reweigh the evidence and substitute our judgment for that of the trier of fact; all conflicts in the evidence and questions of credibility must be resolved in favor of the judgment. (People v. Clark (2000) 82 Cal.App.4th 1072, 1082-1083; People v. Autry (1995) 37 Cal.App.4th 351, 358.)
While the restitution ordered for a receiving stolen property conviction can exceed the value of the stolen property, the trial court could rely on the restitution order in this case. Defense counsel’s statement at the sentencing hearing that any restitution should “not exceed the sum of the receipts,” coupled with the agreement to the amount of restitution shortly thereafter, supports the inference that the restitution ordered covered only the value of the stolen goods. Since defendant did not execute a Harvey waiver, restitution could not be ordered for the dismissed burglary count. (§ 1192.3.) There is also no reason to believe restitution was ordered for property beyond that specified in the receiving charge. Defendant was charged with receiving stolen “Purse, Glasses, Credit Cards, School ID, Money, [and] Wallet,” the factual basis for the plea stated she received property stolen from the victim, and the probation report stated the victim’s purse, along with a Coach wallet, Versace reading glasses, $360 in cash, credit cards, identification, and social security cards for the victim’s children, were found in defendant’s vehicle.
Taken together, this is substantial evidence that the value of property in defendant’s receiving conviction totaled the amount of victim restitution ordered, $1,160.90. While defendant submitted evidence supporting a different finding, the trial court did not have to credit it, and we shall not disturb that finding on appeal.
DISPOSITION
The judgment (order) is affirmed.



/s/
Robie, Acting P. J.



We concur:



/s/
Mauro, J.



/s/
Renner, J.