People v. Swett CA2/4

Filed 5/4/16 P. v. Swett CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B262823

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA055758) v.

KEITH JASON SWETT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed. Ken K. Behzadi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, Assistant Attorneys General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________

Keith Jason Swett appeals from the order denying his petition for resentencing under Proposition 47. (Pen. Code, § 1170.18.)1 We affirm because appellant has not met his burden of showing that he is eligible for resentencing under the proposition.

FACTUAL AND PROCEDURAL SUMMARY In 2012, appellant pled no contest to attempted grand theft auto and admitted a prior prison term. (§§ 487, subd. (d)(1); 664; 667.5, subd. (b).) He was sentenced to 30 months in prison and placed on a three-year probation, which subsequently was revoked. In 2014, appellant filed a one-page form petition for resentencing under section 1170.18. The court denied the petition without prejudice. Assuming attempted grand theft is included within Proposition 47, the court held appellant had not met his burden of showing the value of the property at issue was less than $950. This appeal followed.

DISCUSSION Penal Code section 1170.18, which was added by Proposition 47, allows persons previously convicted of felonies that would be misdemeanors under Proposition 47 to petition for resentencing. (People v. Sherow (2015) 239 Cal.App.4th 875, 878–879 (Sherow).) Section 490.2, subdivision (a) provides that “[n]otwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor,” unless the defendant has one or more disqualifying prior convictions. Section 487, subdivision (d)(1) specifies that “grand theft” is committed when the property taken is an automobile. Proposition 47 does not expressly mention attempts. Without deciding the issue, we follow the parties’ and trial court’s assumption that attempted grand theft is subject to the proposition. A number of courts have concluded that a defendant bears the initial