Filed 4/3/17 P. v. Henson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
----


THE PEOPLE,

Plaintiff and Respondent,

v.

BILLY WESS HENSON,

Defendant and Appellant.
C082062

(Super. Ct. No. 03F9360)




Defendant Billy Wess Henson appeals from the trial court’s denial of his Penal Code section 1170.18 (unless otherwise stated, statutory references that follow are to the Penal Code) petition to reclassify his felony conviction for receiving stolen property (§ 496) to a misdemeanor. He contends the trial court erred in finding him ineligible for resentencing as it did not make the necessary factual determination. We affirm the trial court’s order.
FACTS AND PROCEEDINGS
On December 2, 2003, a search of a travel trailer belonging to defendant found items stolen in a series of residential burglaries.
Defendant was charged with seven counts of first degree burglary (§ 459), two counts of grand theft of a firearm (§ 487, subd. (d)), one count of receiving stolen property (§ 496), 12 strikes (§ 1170.12), and two prior prison term (§ 667.5, subd. (b)) allegations. Defendant pleaded no contest to the receiving count and admitted the strike allegations; the remaining counts and allegations were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) for the purposes of determining restitution as to five of the burglary counts. As part of the plea agreement, defendant was to pay restitution to the victims in five of the burglary counts and receive a stipulated state prison term of 25 years to life. Defendant was sentenced to the stipulated term and ordered to pay victim restitution of $15,064 to G.H., $1,092 to M.H., $567.64 to G.W., and $1,505 to J.J.
On March 11, 2015, defendant, through the public defender’s office, filed a petition for resentencing on his conviction. The People filed a response asserting that defendant’s crime was ineligible for resentencing because the value of the property received was over $18,000. On March 26, 2015, the trial court denied the petition without prejudice and ordered that defendant “may place on calendar for proof of value.”
On July 31, 2015, defendant, acting pro per, filed another section 1170.18 petition. The petition stated that the record was silent regarding the value of the stolen property. The clerk of the court declined to file the petition because it was successive, defendant was represented by counsel in his first petition, and the trial court had authorized further court days on the original petition if appropriate and, thus, the original petition was still pending.
On August 3, 2015, the public defender’s office informed defendant that his crime was ineligible for resentencing because the value of the items stolen, as reflected in the restitution orders, totaled $18,228.64.
On December 14, 2015, defendant filed a request to file a notice of appeal with this court more than 60 days after judgment. We deemed it to be a petition for a writ of mandate, directed defendant to resubmit his petition with the trial court no later than February 24, 2016, and directed the trial court to notify us of the status of the proceedings no later than March 10, 2016.
Defendant resubmitted the petition, mailing it to the superior court on February 24, 2016. Interpreting our order in a manner most favorable to defendant, the trial court deemed the July 31, 2015, petition resubmitted and filed. The trial court incorporated the petition into the initial petition, and noted that both petitions failed to establish a prima facie claim for relief as neither contained prima facie evidence that the value of the stolen items was below $950. The trial court set a hearing on the petitions, in which defendant, through counsel of record, the public defender, could carry his burden of proving the value of the stolen items was less than $950.
At the hearing on the petition, defendant’s counsel admitted that he could not make “a prima facie statement” that would establish defendant’s eligibility for relief. Finding that the petition failed to establish a prima facie case for relief, the trial court denied the petition.
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, p. 74.)
As relevant here, burglary is defined as: entry into a “building, . . . with intent to commit grand or petit larceny or any felony.” (§ 459.) Proposition 47 added section 459.5, which establishes the crime of shoplifting, a misdemeanor. Section 459.5 states in pertinent part: “Notwithstanding section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) As can be seen, even if defendant’s crimes otherwise fell into the current definition of shoplifting, he would not be entitled to relief if the property that he took exceeded $950 in value.
Defendant contends that the Harvey waiver and the purpose of victim restitution precluded the trial court from using the victim restitution awarded for the dismissed burglary charges as evidence of the value of the stolen property he received. He further claims that section 1170.18 limits evidence to that underlying the crime at issue rather than that which involves dismissed claims. Asserting that the trial court could not deny his petition unless it found that the value of the property he received was greater than $950, defendant concludes that the denial of his petition was erroneous as it lacked this necessary finding.
At the end of the day, defendant’s argument fails because it incorrectly assumes that he does not have the burden of establishing the value of the stolen items underlying his receiving conviction. The published decisions addressing this matter uniformly place the burden of proving eligibility for resentencing on the defendant, the petitioner in section 1170.18 proceedings. (See, e.g., 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.) Defendant disagrees, relying on section 1170.18, subdivision (b), which states: “Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a).” He claims that placing the burden of proof on the petitioner in section 1170.18 proceedings “is in derogation of the trial court’s statutory duty to ‘determine whether the petitioner satisfies the criteria’ for reduction.”
Defendant’s arguments fail. Subdivision (b) does not allocate the burden of proof, but merely places the duty of determining eligibility for resentencing on the trial court. Some party must bear the burden of proof in a proceeding, including those under section 1170.18.
While that statute is silent on the allocation of the burden of proof, the Evidence Code is not. “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) Agreeing with the unanimous authority on this question, we conclude that defendant bears the burden of proving that his or her offense is eligible for relief under section 1170.18.
Since defendant submitted no evidence regarding the value of the stolen items he received, he failed to carry his burden of proof, as the trial court correctly concluded.
DISPOSITION
The judgment (order) is affirmed.



HULL , J.



We concur:



NICHOLSON , Acting P. J.



HOCH , J.