Filed 4/21/17 P. v. Schrubb CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN R. SCHRUBB,

Defendant and Appellant.

F072053, F072123

(Super. Ct. Nos. 274651-1, 277465 1, 293558 3, 403687-7, F12905996)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On February 9, 2015, appellant Kevin R. Schrubb petitioned the superior court for reclassification of certain prior convictions in case numbers 274651-1, 277465-1, 293558-3, and 403687-7 from felonies to misdemeanors pursuant to Penal Code section 1170.18. The superior court denied the petition. Schrubb appeals the denial as to case number 403687-7, a conviction for receipt of stolen property, contending the superior court erred in denying the petition on the grounds he had not met his burden of proving the value of the stolen items was less than $950. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On May 27, 1989, Schrubb was riding a motorcycle with an expired registration tag. A California Highway Patrol (CHP) officer stopped Schrubb; Schrubb had an expired driver’s license. The CHP officer recognized the tank, fenders, and side covers of the motorcycle as having been stolen recently from a fellow CHP officer, Jim Crosswhite. Crosswhite was called to the scene and identified the items as his by their distinctive markings.
Schrubb claimed he purchased the motorcycle parts for $100. Later, Schrubb admitted the person who sold him the motorcycle parts was a known motorcycle thief. Officers searched Schrubb’s residence and found other parts of the motorcycle that had been stolen.
On August 9, 1989, Schrubb pled to one felony count of violating Penal Code former section 496.1, receiving stolen property, in case number 403687-7. He was sentenced to the low term of one and one-third years in prison.
On February 9, 2015, Schrubb filed a petition seeking to have four prior felony convictions deemed misdemeanors, among them the conviction in case number 403687 7. Nowhere in the petition was a value for the stolen property alleged. At the hearing on the petition held on June 15, 2015, Schrubb presented no evidence as to the value of the stolen motorcycle parts. The superior court denied the petition because Schrubb had not provided any evidence that the value of the motorcycle parts was $950 or less and thus making the conviction eligible for reduction.
Schrubb timely filed a notice of appeal from the denial of his petition.
DISCUSSION
Schrubb contends the trial court erred in denying his petition as to the receiving stolen property conviction in case number 403687-7 because, he alleges, the People bore the burden of proving the value of the property exceeded $950. He is mistaken.
Proposition 47
Proposition 47 was enacted on November 4, 2014 and became effective the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 renders certain drug- and theft-related offenses as misdemeanors; these offenses had previously been designated as either felonies or “wobblers,” meaning they could be charged as a felony or a misdemeanor offense. Proposition 47 also created a new statutory provision whereby a person serving a felony sentence for a reclassified offense can petition for a recall of his or her sentence. (§ 1170.18, subd. (a).) A person who has completed serving their felony sentence is eligible to petition for redesignation of the conviction as a misdemeanor under section 1170.18, subdivision (f).
As this court explained in People v. Bradshaw (2016) 246 Cal.App.4th 1251 (Bradshaw), persons seeking to avail themselves of the benefits of Proposition 47 must first file a petition in the trial court. (Bradshaw, supra, at pp. 1256-1257.) For defendants who are currently serving a sentence for a felony reduced by Proposition 47, as well as for those who have completed a sentence for such an offense, “the remedy lies in the first instance by filing a petition to recall (if currently serving the sentence) or an application to redesignate [or reclassify] (if the sentence is completed) in the superior court of conviction.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1331-1332; see People v. Scarbrough (2015) 240 Cal.App.4th 916, 925, 929-930 [defendant seeking resentencing under Proposition 47 must file petition for recall of sentence in trial court once underlying judgment is final]; see also People v. Shabazz (2015) 237 Cal.App.4th 303, 313-314 [defendant limited to statutory remedy set forth in § 1170.18, which requires a defendant who has completed felony sentence to file an application in the trial court for reclassification].)
Analysis
As the moving party, Schrubb has the initial burden of proving his eligibility for relief under section 1170.18. (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) This includes the burden of proving that the value of the property in the receiving stolen property offense did not exceed $950 and therefore the offense qualifies for treatment as a misdemeanor under Proposition 47. (People v. Sherow, supra, at pp. 879-880; People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008.)
Evidence Code section 115 provides that unless otherwise specified, the burden of proof is by a preponderance of the evidence. Section 1170.18 does not specify otherwise. The trial court determines if a defendant is eligible for resentencing or redesignation of a conviction using the preponderance of the evidence standard. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1040.)
Where a defendant is seeking reclassification of an offense based upon the value of the stolen property not exceeding $950, the defendant must attach information or evidence necessary to enable the trial court to determine value and thus, eligibility for redesignation as a misdemeanor. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)
The record discloses that Schrubb offered no competent evidence, in fact no evidence whatsoever, at the June 15, 2015 hearing on the petition establishing that the value of the stolen motorcycle parts he received was less than $950. The record of conviction at the time of the plea and at sentencing is silent as to value. Consequently, having failed to provide any evidence of value, Schrubb failed to meet his burden of proof. (People v. Sherow, supra, 239 Cal.App.4th at pp. 878-880.)
DISPOSITION
The superior court’s denial of Schrubb’s petition for reclassification is affirmed.