California Court of Appeal Jul 5, 2016 No. E063204Unpublished
Filed 7/5/16 P. v. Camargo CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063204
v. (Super.Ct.No. BLF1400228)
NIGEL THOMAS CAMARGO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Steven L. Harmon, Public Defender, Laura B. Arnold, Deputy Public Defender,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Marilyn L.
George, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Nigel Thomas Camargo appeals the denial of his motion
to reconsider his petition to reduce his second degree conviction of burglary (Pen. Code,
§§ 459, 460)1 to a misdemeanor pursuant to Proposition 47. For the reasons stated
certainly contain at least [defendant’s] testimony about the nature of the items taken. If
he [or she] made the initial showing the court can take such action as appropriate to grant
the petition or permit further factual determination. [Citation.]” (Sherow, supra, at
p. 880.) We believe the court in Sherow reached the correct result on the issue, and we
adopt the analysis and conclusion of that court.
In Rivas-Colon, supra, 241 Cal.App.4th 444, citing Sherow, supra, 239
Cal.App.4th 875, the court rejected the defendant’s argument that the prosecution had the
burden of establishing the value of the property was more than $950. (Rivas-Colon, at
11
p. 449.) The defendant in Rivas-Colon had stipulated to a factual basis for the plea
contained in the police report, which listed the value of the property he removed from a
store as $1,437.74. (Id. at p. 447.) The appellate court explained that the defendant had
not provided any evidence or argument demonstrating that he was eligible for
resentencing and therefore the trial court properly denied his resentencing petition. (Id. at
pp. 447-448.)
Here, defendant’s petition gave the trial court no information on the value of the
stolen property. He has thus failed to show his eligibility for resentencing. (Sherow,
supra, 239 Cal.App.4th at p. 878-880; Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-
450; § 1170.18, subd. (b) [“the court shall determine whether the petitioner satisfies the
criteria in subdivision (a)”] & subd. (g) [court must designate the offense as a
misdemeanor “[i]f the application satisfies the criteria”].) As such, the court properly
denied defendant’s resentencing petition.
In his reply brief, defendant argues the People forfeited any claim regarding the
value of the stolen property; that the People’s reliance on Sherow is misplaced; and that
the use of the superior court’s petition form for mandatory use indicated his belief the
value of the property in question did not exceed $950. We reject these assertions. We
agree with the reasoning in both Sherow and Rivas-Colon. These courts’ analyses are
consistent with the well-established rule set forth in Evidence Code section 500, which
reads: “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
12
that he is asserting.” (See People v. Barasa (2002) 103 Cal.App.4th 287, 295-296 [under
Evidence Code section 500, defendant has the burden of proving that his drug possession
or transportation was for personal use and that he was therefore eligible for sentence
reduction under Proposition 36]; People v. Atwood (2003) 110 Cal.App.4th 805, 812
[under Evidence Code section 500, “[t]he burdens of producing evidence and of
persuasion flow from a party’s status as a claimant seeking relief”].) Defendant is the
party who petitioned for relief, and therefore he had the initial burden of demonstrating
eligibility under section 1170.18, subdivision (a). Accordingly, we reject defendant’s
forfeiture claim.
A due process argument has also been soundly rejected in Sherow, supra, 239
Cal.App.4th 875. The Sherow court explained that due process is relevant to the initial
prosecution for an offense, not resentencing under Proposition 47. Resentencing
concerns people who have already been proven guilty of their offense beyond a
reasonable doubt. (Sherow, supra, at p. 880.) In any event, a defendant, like in the
instant case, has an opportunity to present briefing to the trial court on the issue of value.
Defendant’s petition could have contained facts, evidence, and arguments regarding the
value of the property, but the petition was devoid of any such facts, evidence, or
arguments. (See Sherow, supra, at p. 880.)
13
Based on the foregoing, defendant was not entitled to resentencing under
section 1170.18 because he did not meet his burden of showing he was eligible for
resentencing under Proposition 47.7
In his reply brief, defendant argues that “No justification has ever been offered, in
the trial court or on appeal, as to the denial of his request for resentencing as to the felony
petty theft count.” However, defendant never petitioned the trial court to reduce his petty
theft with a prior conviction to a misdemeanor. Defendant’s petition for resentencing and
application for reduction to misdemeanor only notes his second degree burglary
conviction. Section 1170.18 provides a petition or an application must be filed to secure
the reduction to a misdemeanor. Section 1170.18 specifies that a defendant must file a
petition, and it describes a procedure for the trial court to make its ruling. Here, although
a petition had been filed under section 1170.18 as to his second degree burglary
conviction, the petitioner failed to seek reduction of his petty theft with a prior conviction
to a misdemeanor. As such, the trial court never determined whether the petty theft with
a prior conviction would be a misdemeanor under Proposition 47.
Defendant is essentially asking this court on appeal that we should declare his
petty theft with a prior conviction to be a misdemeanor. Nonetheless, “the plain language
of section 1170.18 set forth above demonstrates that both for persons who are currently
7 Having reached this result, we need not consider the parties arguments relating to whether or not a doctor’s office is considered a “commercial establishment” within the meaning of Proposition 47. We express no opinion on what evidence the trial court may consider when ruling on a petition for resentencing brought pursuant to section 1170.18.
14
serving a sentence for a felony reduced by Proposition 47, and for those who have
completed such a sentence, the remedy lies in the first instance by filing a petition to
recall (if currently serving the sentence) or an application to redesignate (if the sentence
is completed) in the superior court of conviction. [Citations.]” (People v. Diaz (2015)
238 Cal.App.4th 1323, 1331-1332, citing People v. Shabazz (2015) 237 Cal.App.4th 303,
313-314 [plain meaning of section 1170.18 requires person who has completed sentence
for a Prop. 47 crime to file an application in the superior court]; People v. Awad (2015)
238 Cal.App.4th 215, 220 [section 1170.18 vests the trial court, not the appellate court,
with authority to reduce a felony for person currently serving a sentence].) Accordingly,
we cannot provide the remedy defendant seeks as to his petty theft with a prior
conviction, and he has an effective remedy in the trial court.
III
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed without
prejudice to subsequent consideration of a properly filed petition. (Sherow, supra, 239
Cal.App.4th at p. 881.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur:
McKINSTER J.
MILLER J.
15
AI Brief
AI-generated · verify before citing
Holding. The court held that a petitioner for resentencing under Proposition 47 bears the burden of establishing eligibility, including proving that the value of the stolen property did not exceed $950. Because the defendant failed to allege or prove the value of the stolen items, the trial court properly denied the petition.
Issues
Does a petitioner for resentencing under Penal Code section 1170.18 bear the burden of proving the value of the stolen property did not exceed $950?
Did the trial court err in denying the petition for resentencing where the defendant failed to provide evidence of the value of the stolen property?
Must a defendant file a petition in the superior court to seek reduction of a petty theft with a prior conviction to a misdemeanor under Proposition 47?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the petitioner will have the additional burden of proving the value of the property did not exceed $950.”
“defendant was not entitled to resentencing under section 1170.18 because he did not meet his burden of showing he was eligible for resentencing under Proposition 47.”
“The order denying defendant’s petition for resentencing is affirmed without prejudice to subsequent consideration of a properly filed petition.”