Filed 1/2/18 P. v. Hunter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

BRANDON HUNTER,

Defendant and Appellant.
C084304

(Super. Ct. No. 09F02731)





Defendant Brandon Hunter appeals from the trial court’s denial of his petition for resentencing pursuant to Proposition 47. (Pen. Code, § 1170.18; undesignated statutory references are to the Penal Code.) He contends the trial court erred in denying the petition as to one of his convictions for receiving stolen property. We shall reverse and remand for additional proceedings on the petition.
BACKGROUND
Defendant and two accomplices committed a string of burglaries during a two-week period in early 2009. (People v. Gore (Mar. 4, 2015, C067619) [nonpub. opn.] at p. 1 (Gore).) Following a jury trial, he was convicted of three counts of first degree burglary (§ 459; counts 1, 3, and 4) and three counts of receiving stolen property (§ 496, subd. (a); counts 2, 5, and 6). The trial court found two of the burglaries were serious felonies and sentenced defendant to a nine-year four-month state prison term. (Gore, at pp. 20-21.) We affirmed his conviction on appeal. (Id. at p. 2.)
In March 2016, defendant filed a resentencing petition as to the receiving stolen property counts. The trial court denied the petition because defendant failed to carry his burden of proving the value of the stolen items did not exceed $950.
In February 2017, defendant filed a motion for reconsideration. Attached to the motion was a damage estimate from the insurance company for the victim of the receiving stolen property charge in count 5, listing $848.75 in losses from a stolen cell phone, iPod Nano, iPod Classic, Apple power adapter, downloaded applications, and a jewelry case. The trial court denied the motion the same day, finding “items listed in the insurance inventory . . . do not fully reflect the extent of items possessed as stolen property such as a laptop computer, flat screen TV, and additional jewelry.”
DISCUSSION
Defendant contends the trial court erred in finding his conviction for receiving stolen property in count 5 ineligible for relief. The Attorney General concedes the point. We accept the concession.
The passage of Proposition 47 created section 1170.18, which provides: “A person who, on November 5, 2014, was 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.” (§ 1170.18, subd. (a).)
Proposition 47 amended section 496, which states in pertinent part: “if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no 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.” (§ 496, subd. (a).) The defendant has the burden of proving his or her offense is eligible for resentencing. (Evid. Code, § 500; People v. Sherow (2015) 239 Cal.App.4th 875, 878.)
The trial court denied the motion for reconsideration because it thought the evidence did not cover all of the items included in the receiving conviction, specifically, a laptop computer, a flat screen television, and other jewelry. Our opinion affirming defendant’s conviction states the following items were taken in the burglary conviction in count 4 and the related receiving conviction in count 5: a “Blackberry phone, two iPods, and a jewelry box.” (Gore, supra, C067619, at p. 13.) The items identified by the trial court were associated with the other receiving convictions in counts 2 and 6. (Gore, at pp. 2-3, 6-8.)
In light of the lack of conflicting evidence and the Attorney General’s concession, we find defendant met his burden as to count 5 and shall reverse the trial court’s order as to that part of the petition. While defendant met his burden of establishing the receiving conviction in count 5 is eligible for relief, the court did not determine whether defendant’s record otherwise disqualifies him (§ 1170.18, subd. (i)) or whether relief should be denied because resentencing defendant poses an unreasonable risk of danger to public safety (§ 1170.18, subd (b)). We shall therefore remand for additional proceedings on the petition.
DISPOSITION
The trial court’s order is reversed as to the receiving stolen property conviction in count 5 and the matter is remanded for additional proceedings on the petition.



HULL , J.



We concur:



NICHOLSON , Acting P. J.



ROBIE , J.