Filed 9/8/17 P. v. Mulholland CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In May 2009, the Sonoma County District Attorney filed a felony complaint charging appellant Matthew C. Mulholland with receiving stolen property (Pen. Code, § 496, subd. (a)).[1] The complaint identified the stolen property as a “COMPUTER, MOTORBIKE, and CHAINSAW.” According to the police report, the charge related to a March 2009 residential burglary. The stolen property was described as a computer worth $1,000; a chainsaw worth $300; and a motor bike worth $800. The police were subsequently advised that appellant had sold the chainsaw to another person. The purchaser identified appellant as the seller, and the owner of the stolen property identified the chainsaw as the one that had been stolen.

In March 2010, appellant pled guilty; he also pled guilty to second degree burglary in two additional cases and a separate misdemeanor case was dismissed. Defense counsel stipulated there was a factual basis for the plea. Appellant was placed on probation for three years. The trial court reserved its ruling on restitution.

In December 2015, appellant filed a Proposition 47 petition for resentencing under section 1170.18. The prosecution opposed the petition on the ground that appellant was ineligible for resentencing because the value of the stolen property was more than $950. The trial court summarily denied the petition in February 2016. Later that month, appellant filed a second petition for resentencing and requested a hearing. Following a hearing, the trial court denied the petition.

On appeal, appellant contends the trial court erred in denying his resentencing petition because the value of the property “actually linked” to appellant was worth less than $950. The distinction is important because Proposition 47 amended section 496 to provide that if the value of the property received does not exceed $950, the offense is a misdemeanor. (§ 496, subd. (a); see also People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).) Appellant points out that there was only direct evidence of him being in possession of the $300 chainsaw and that a conviction requires proof the property was stolen, the defendant had possession of it, and the defendant knew the property was stolen. (People v. Land (1994) 30 Cal.App.4th 220, 223.)

“The ultimate burden of proving section 1170.18 eligibility lies with the petitioner.” (People v. Romanowski (2017) 2 Cal.5th 903, 916.) Appellant must “set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950.” (Perkins, supra, 244 Cal.App.4th at pp. 136–137; see also People v. Sherow (2015) 239 Cal.App.4th 875, 878 [“a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing”]; accord People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449.)

Appellant failed to meet his burden. Although the police report only directly linked him to the chainsaw, his possession of the chainsaw was circumstantial evidence he also gained possession of the other items stolen from the same residence, the computer and the motor bike.[2] Thus, contrary to appellant’s claim, the police report did not “conclusively establish[] that appellant was eligible for relief.” And, of course, appellant pled guilty to the charge of receiving all three items; the trial court expressly listed the stolen items as “a computer, motorbike, and chain saw” in taking appellant’s plea. Appellant’s guilty plea “ ‘constitutes an admission of every element entering into the offense charged, and constitutes a conclusive admission of defendant’s guilt.’ ” (In re Hawley (1967) 67 Cal.2d 824, 828.) The specification in the complaint of the stolen items appellant received was not superfluous because the prosecution was required to prove appellant received “ ‘particular property’ ” to secure a conviction under section 496. (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 213.)

Appellant suggests his plea as to the computer and motor bike is irrelevant because “at the time he pled guilty, appellant had no reason to dispute the items alleged in the receipt of stolen property count.” We disagree. The specific items received by appellant were relevant to victim restitution, so he did have reason to contest their inclusion. (See People v. Scroggins (1987) 191 Cal.App.3d 502, 506 [defendant could not be obligated to pay restitution for losses resulting from burglaries for which he was not charged]; In re Maxwell C. (1984) 159 Cal.App.3d 263, 265 [juvenile court erred in requiring juvenile to pay restitution for all items stolen from vehicle and damage to vehicle where he only admitted receiving car stereo].)

The trial court did not err in denying appellant’s February 2016 petition for resentencing.[3]

Disposition

The trial court’s order is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.