Filed 10/27/17 P. v. Santamaria CA4/1
Opinion on remand from Supreme Court
OPINION ON REMAND

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR SANTAMARIA,

Defendant and Appellant.
D068307



(Super. Ct. No. SCD254710)

APPEAL from an order of the Superior Court of San Diego County, Timothy R. Walsh, Judge. Affirmed.
Paul J. Katz, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Edgar Santamaria entered into a plea agreement in which he plead guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)), and one count of threatening a public officer (§ 71), as a misdemeanor. The remaining counts and allegations were dismissed.
In October 2014, Santamaria was sentenced to a split term of three years, with two years to be served in local custody and one year in mandatory supervision.
In May 2015, Santamaria filed a petition under Proposition 47 (§ 1170.18) requesting that his conviction for receiving stolen property be redesignated as a misdemeanor. Following briefing and a hearing the motion was denied.
Santamaria appealed contending the trial court erred in denying his petition. Although he conceded in the trial court that the burden of proof as to the value of the stolen items was on him, he now contended the burden of proof was on the prosecution. Santamaria also argued that the only material which can be considered in ruling on a petition such as this is the record of conviction.
We rejected Santamaria's contention and affirmed the trial court's denial of the petition for resentencing. Our Supreme Court granted review and held this case pending its decision in People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski). The court has since issued its opinion in Romanowski. The court thereafter remanded this case to our court for reconsideration in light of Romanowski.
We requested and received supplemental briefs from the parties regarding the impact of the Romanowski decision on the merits of this appeal. As directed by the Supreme Court we have reconsidered our prior decision and once again affirm the trial court's denial of the petition for resentencing.
STATEMENT OF FACTS
The parties did not present any evidence at the hearing on the petition to redesignate the conviction as a misdemeanor. The original conviction followed a guilty plea, so there are no "facts" to recite in this section.
It is sufficient to note there was a substantial amount of stolen property in his possession. The items included four GPS devices, two men's wrist watches, four pairs of sunglasses, two iPods, one Alcatel cell phone, one Samsung Galaxy cell phone with case, one iPhone with case, numerous CDs/DVDs, one necklace, and one garage door opener, among other items.
At the hearing Santamaria took the position that filing the petition, and the transcript of the preliminary hearing at which there was no testimony as to value, satisfied his burden of demonstrating eligibility, i.e., that the value of the items did not exceed $950.
DISCUSSION
At the hearing on Santamaria's petition, counsel conceded that the burden of proof that he qualified for relief was on the petitioner. Counsel argued, however, that since the transcript of the preliminary hearing did not include evidence of the value of the stolen items, he had met his burden. Specifically, the argument was the absence of evidence in the record established the value of the stolen items was less than $950. The trial court rejected the argument and concluded Santamaria had failed to show he qualified for redesignation of his offense as a misdemeanor. We agree.
A. Legal Principles
On November 4, 2014, the voters enacted Proposition 47 (the Safe Neighborhoods and Schools Act), which is codified in section 1170.18. The act prospectively declares certain drug and theft related offenses to be misdemeanors. Retrospectively, the act provides a mechanism for convicted persons to seek redesignation of certain felony offenses to misdemeanors, where the value of the items taken was less than $950. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089; People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)
Section 1170.18, provides in part:
"(a) 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 ("this act") 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 Sections 11350, 11357, or 11377 of the Health and Safety Code, or 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.

"(b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to . . . Section . . . 496 [as] those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.

[¶] . . . [¶]

"(i) The provisions of this section shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."

Section 1170.18 does not specify a burden of proof for petitioners who seek retrospective redesignation of their offenses. Thus, in People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow), this court determined that a petitioner who seeks to have his or her offense reduced on the basis of value less than $950 bears the initial burden of proof that the person's offense qualifies for such relief. Based upon our analysis of the language authorizing the petitions for relief, the absence of a stated burden of proof in the act, and the general principles of burdens established by Evidence Code section 500, we concluded the burden to establish eligibility for relief falls on the petitioner.
Since our opinion in Sherow, supra, 239 Cal.App.4th 875, the First District Court of Appeal, in People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450 (Rivas-Colon), agreed with our decision and also concluded the burden is on the petitioner under section 1170.18 to establish his or her eligibility for relief.
B. Analysis
Appellate counsel originally argued that Sherow, supra, 239 Cal.App.4th 875 and Rivas-Colon, supra, 241 Cal.App.4th 444, were wrongly decided and that we should revisit the issue of burden of proof under Proposition 47. The argument was largely based on counsel's comparative analysis of Proposition 36 (§ 1170.126), the Three Strikes Law reform measure. The argument is perhaps summarized as Proposition 36 is worded similarly to Proposition 47 (although not identical), the burden of proof as to lack of eligibility is on the prosecution (People v. Bradford (2014) 227 Cal.App.4th 1322), therefore the burden of proof under Proposition 47 ought to be on the prosecution.
First, we are satisfied that the three courts that have examined the Proposition 47 burden of proof were correct, and we decline to visit the issue again. Also, we find the nature of the propositions to be different. While both provide prospective and retrospective modifications of existing law, their scope and methodology are different. Under Proposition 36 it is the nature of the conviction which drives the outcome of postconviction relief. If the person has not been convicted of a serious felony as the current offense, the person is not eligible for a life term, unless there are exceptions, which the prosecution must prove.
In cases such as this, the issue is not the conviction, which is otherwise valid as a felony. The question in theft cases such as this is the property value, which, like the present case, was irrelevant for the underlying conviction. Thus the person filing the petition seeks to undermine the conviction by contending the value of the property at issue was under $950. The cases which have discussed this question construe the requirement on the section for the petitioner to show eligibility as logically putting the burden on the person most likely to know what he or she had stolen, or received. In short, the proposed comparative analysis does not dissuade us from our conclusion in Sherow, supra, 239 Cal.App.4th 875.
The court in Romanowski, supra, 2 Cal.5th 903 dealt principally with the question of the theft of access cards under section 484e. The court concluded such offenses were subject to resentencing under section 1170.18 where the value of the stolen card was less than $950. The court also addressed the method of determining the value of stolen cards that are not otherwise available for sale on legal markets. However, the issues in Romanowski dealing with stolen access cards are not relevant to the crimes at issue here.
The court in Romanowski, supra, 2 Cal.5th 903 went on to discuss the process of seeking resentencing under section 1170.18. Citing our opinion in Sherow, supra, 239 Cal.App.4th 875, 880, the court observed that a person who files a petition for resentencing under section 1170.18 bears the burden of proof that the offense involved a loss less than $950. The court said:
"Who bears the burden of proving newly relevant facts in the context of a section 1170.18 petition to recall a sentence? The ultimate burden of proving section 1170.18 eligibility lies with the petitioner. (See Evid. Code, § 500.) In some cases, the uncontested information in the petition and record of conviction may be enough for the petitioner to establish this eligibility. When eligibility is established in this fashion, 'the petitioner's felony sentence shall be recalled and the petitioner sentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).) But in other cases, eligibility for resentencing may turn on facts that are not established by either the uncontested petition or the record of conviction. In these cases, an evidentiary hearing may be 'required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 ['A proper petition could certainly contain at least [the 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.'].)" (Romanowski, supra, 2 Cal.5th at p. 916.)

We interpret the Supreme Court's statement to place the burden of proof as to qualification for resentencing squarely on the petitioner, which supports our original decision that Santamaria had the burden to demonstrate in his petition that the value of the extensive amount of stolen goods in his possession was valued at less than $950.
Santamaria did not present any evidence as to the value of the many items of stolen property in his possession. The so-called silence in the transcript of the preliminary examination about value, an issue irrelevant at the time, is not evidence that the value of the accumulated stolen property is less than $950. Thus appellant has not met his initial burden of establishing eligibility for relief.
Finally, appellate counsel invites us to opine on the question of how to meet the burden of proof. He contends the prosecution not only bears the burden, but is limited to the "record of conviction" as that term is used in the analysis of alleged prior felony convictions. (People v. Guerrero (1988) 44 Cal.3d 343, 355.)
While the issue may be fascinating and have relevance in another case, it is not before us for decision. There was mention of the concept by defense counsel in the trial court, however, there was never any ruling predicated on the scope of admissible evidence. The defense was not limited in any offer of proof and the prosecution did not offer any evidence. Accordingly, whatever view we might take on the scope of admissible evidence at some point has no bearing on our determination of whether the trial court correctly denied the petition for relief under Proposition 47. We decline to offer an advisory opinion on an undeveloped issue. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
In his supplemental letter brief, appellate counsel acknowledges it is now established the burden of proving qualification for relief in this case is on the appellant. Counsel urges us to reverse the denial of his petition and remand the matter to the trial court. We decline that approach.
It is clear that the trial court properly applied the law in its analysis of appellant's petition. There was no error upon which we could justify reversal. However, we recognize the law has been in flux on the issue of burden of proof and that it was unclear when the instant petition was filed. Therefore, we will affirm the order denying the petition, but note that we do so without prejudice to appellant's right to file a new petition if he wishes to do so.
DISPOSITION
The order denying the petition under section 1170.18 is affirmed without prejudice to appellant's ability to file a new petition.

HUFFMAN, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.