Filed 10/25/17 P. v. Figueroa 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

AMADOR FIGUEROA,

Defendant and Appellant.


F074296

(Super. Ct. No. F08907483)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

Appointed counsel for defendant Amador Figueroa asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a letter. Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
BACKGROUND
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On January 16, 2009, defendant was convicted by jury trial of felony receiving stolen property (Pen. Code, § 496, subd. (a)). The trial court sentenced him to one year four months in prison.
On December 31, 2015, defendant petitioned the trial court for recall and resentencing pursuant to Proposition 47 (§ 1170.18).
On April 4, 2016, the prosecutor responded to the petition, claiming the value of the stolen property defendant received was $1,120.
On June 6, 2016, the trial court held a hearing on the matter and granted the defense motion for a continuance to determine the value of the stolen property.
On July 25, 2016, the trial court again held a hearing on the matter and concluded the defense had failed to prove the value of the stolen property was $950 or less. Accordingly, the court denied relief under section 1170.18.
On August 26, 2016, defendant filed a notice of appeal.


DISCUSSION
“ ‘On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act ….’ [Citation.] ‘Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).’ ” (People v. Morales (2016) 63 Cal.4th 399, 404.) One offense converted to a misdemeanor by Proposition 47 is receiving stolen property when the value of the stolen property does not exceed $950. (§ 496, subd. (a).)
The initial burden of proof regarding the value of the stolen property was upon defendant to demonstrate he was eligible for relief. (People v. Johnson (2016) 1 Cal.App.5th 953, 961, 964 [petition properly denied where defendant failed to satisfy burden of showing value of property was less than $950]; People v. Sherow (2015) 239 Cal.App.4th 875, 880 [“We think it is entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based.”]; People v. Rivas-Colon (2015) 241 Cal.App.4th, 444, 449 [burden on petitioner to show value of stolen property was less than $950].)
We agree with the trial court that defendant failed to carry his burden. At the hearing, he claimed he did not know or did not remember most of the property he took, and he offered no estimates of its value. He only stated that he took a few miscellaneous items, like a blanket, a handful of DVD’s, and possibly a DVD player. On cross-examination, however, the prosecutor asked him about specific items and their values, as listed in the police report. Defendant generally criticized the prosecutor’s estimates by saying things like, “I don’t believe it was that much,” or “I believe it was less,” or “I have no idea.” He ultimately stated that the value of the property was “under, for sure it was under [$]500, plus everything was recovered.” The prosecutor then asked, “Would it surprise you that the police report indicates that the total amount recovered in your possession was $1,120?” Defendant answered, “There is no way it was that much.”
Our review of the entire record has revealed no arguable issues on appeal.
DISPOSITION
The trial court’s order denying relief under Proposition 47 (Pen. Code, § 1170.18) is affirmed.