People v. Saetern CA1/1

Filed 2/22/16 P. v. Saetern CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, A144232 Plaintiff and Respondent, v. (Contra Costa County KIM SAETERN, Super. Ct. No. 02-31271-80)

Defendant and Appellant.

INTRODUCTION In this case, the trial court erroneously denied defendant’s petition for resentencing under the Safe Neighborhoods and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014) (the Act)) for the stated reason he was convicted by negotiated plea. (Pen. Code, § 1170.18;1 T.W. v. Superior Court (2015) 236 Cal.App.4th 646 (T.W.) Defendant argues this error entitles him to relief under the statute because the prosecution bore the burden of proving he received stolen property worth more than $950, and the record does not establish that fact. Alternatively, he argues this court should remand the matter for a hearing to determine defendant’s eligibility for relief. In our view, it was defendant’s burden, as the petitioner, to establish he was entitled to relief by meeting the $950 or less threshold requirement, as well as other requirements under the statute. Since he failed to carry that burden, he is not

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

entitled to resentencing under section 1170.18. However, because the court short- circuited the petition process by its ruling, we will reverse and remand for a hearing on defendant’s entitlement to relief and for correction of errors in the imposition of fees. Because defendant is not entitled to resentencing at this juncture, defendant’s contentions regarding modification of parole and credit for time are premature, and we do not reach them. STATEMENT OF THE FACTS AND CASE2 On January 25, 2013, El Cerrito police officer Wong followed a van listed as stolen out of Richmond. The van stopped and picked up two men. Following a felony stop, three men, defendant included, were detained and the van was searched. Several stolen items, including several bags of foreign currency and several pieces of jewelry, were found inside. After interviewing the owner of the van, police received a call from the victim of a home burglary. She viewed photographs of the items found in the van and identified the items as hers. The Contra Costa County District Attorney charged defendant Kim Saeturn and two others by complaint with first degree residential burglary (count 1) and two counts of receiving stolen property: a stolen vehicle (count 3), and jewelry and coins (count 4). (§§ 459/460, subd. (a); 496d; 496, subd. (a).) The complaint also alleged defendant had previously suffered a serious and violent felony for burglary and served a prior prison term for receiving stolen property. (§§ 667, subds. (a), (b)–(i); 667.5, subd. (b).) Following a preliminary hearing, the codefendants were held to answer on all counts, plus one additional count not involving defendant (count 2). On April 2, 2014, defendant waived preliminary hearing and pleaded no contest to