Filed 3/22/16 P. v. Cardenas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.

ROBERT CARDE NAS,
Defendant and Appellant. B262132
(Los Angeles County Super. Ct. No. VA129321)

APPEAL from an order of the Superior Court of Los Angeles County, Olivia Rosales, Judge. Affirmed. Brad Kaiserman, under appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanch ez, Deputy Attorney General, for Plaintiff and Respondent.

___________________________________2

Defendant Robert Cardenas (a lso known as Robert Medina) appeals from an order denying him resentencing. Cardenas argues he is eligible for resentencing beca use (1) under Proposition 47 (the Safe Neighborhoods and Schools Act) (Pen. Code, § 1170.18) (Prop 47) he is statutorily presumed eligible for resentencing , (2) in re but ting
th is statutory presumption
, the prosecution is limi ted to the record of conviction
, (3) the
record of conviction is limi ted to the bare elements of his pleaded

- to offense , forgery, because he entered his plea according to People v. West (1970) 3 Cal.3d 595 ( West ) , and (4) the bare elements of forgery do not rebut the statutory presumpti on

. W e hold t he
record of conviction supports denying Cardenas resentencing.
BACKGROUND On February 7, 2013 , Derald Plount, an acquaintance of Cardenas’s, sold a vehicle

to Doudy Abankwan for $5 00

. Plount referred Abankwan to Cardenas for engine work
th e car needed . The buyer delivered the vehicle to Cardenas, but Card e nas did not work on the engine. Instead, Cardenas sold the vehicle to another individual for $400, forging the bill of sale using Plount’s name.
The district a ttorney (D.A.) filed an in formation on November 12, 2013
, charging Cardenas with grand theft auto (Pe n. Code, § 487, subd. (d)(1)) (c ount 1 ); forgery of a vehicle transfer form (§ 470, subd. ( d)) (c ount 2 ); forgery of an application for a duplicate or paperless title ( § 470, subd

. ( d )) (c ount 3 ); and false pers onation (§ 529, subd. (a)(2)) (c ount 4 ). The D.A. also alleged Cardenas had been convicted of a serious felony under section 667, subdivisions (b) through (j) and section 1170.12 , and had been incarcerated
for five terms with in the meaning of section 667.5, subdivision (b)

. Cardenas entered a nolo contendere plea under West , supra , 3 Cal.3d 595
, to c ount 2 , forgery of a vehicle transfer form. After finding a factual basis for the plea, the court sentenced Cardenas to a

tota l of 32 months in state prison. On November 18, 2014, Cardenas filed a motion for resentencing under Prop 47. The court denied Cardenas’s motion, holding that because Prop 47 did not cover forgeries
of documents related to vehicles
, he was ineligible for resentencing. Cardenas appealed.3 DISCUSSION On appeal, Cardenas contends the record of conviction does not render him ineligible for sentencing. We disagree.
A. Cardenas bears the burden of proof to demonstrate resentencing eligibility Although Prop 47 does not allocate the burden of proof to demonstrate resentencing eligibility , appellate courts have placed the burden on the defendant. ( People v. Sherow (2015) 239 Cal.App.4th 875, 878 ( Sherow ); People v. Rivas

- Colon (2015) 241 Cal.App.4th 444, 449 ( Ri vas

- Colon ) , quoting Sherow ; People v. Ortiz (2016) 243 Cal.App.4th 854, 8 61, citing Sherow ; People v. Perkins (2016) 244 Cal. App.4th 129,
136 , quoting Sherow and citing Rivas

- Colon .) We agree with allocating the burden to the
defendant. As the Sherow cou rt reasoned, “ I t is a rational allocation of burdens if the petitioner,” who has been “validly convicted” of a crime, “bear s the burden of showing that he or she is eligible for resentencing of what was an otherwise valid sentence.” ( Sherow , at p. 878.)
C ardenas acknowledges this precedent, but contends it does “not address the
consistent line of

” cases, such as People v. Guerrero (1988) 44 Cal.3d 343 ( Guerrero )
and People v. Watts (2005) 131 Cal.App.4th 589
, which ho ld “an offense is presumed to
be for th e least offense possible
, ” and here, the least offense possible would create eligibility. Cardenas misapplies Guerrero and Watts

. The presumption there is that, in
the “Three S trikes ” context, “ if it cannot be determined from the record that the offense was committed in a way that would m ake it a strike
, ” an offense is presumed to be the least offense possible. ( Watts , at p. 596 , italics omitted .) By its own terms, that presumption does not apply until after a review of the record. As explained below, the record of conviction demonstrates Cardenas’s ineligibility and therefore the presumption,
even if potentially applicable in this context , does not apply here

. B. The record of conviction establishes Cardenas’s resentencing ineligibility Cardenas argue s that the court is limited to his record of conviction in determining his resentencing eligibility and his West plea limited the record of conviction to the bare elements of the forgery offense. We need not address Cardenas’s argument that the court4

is l imited to his record of conviction because the record of conviction alone demonstrates
Cardenas ’s ineligibility for resentencing.
1. Cardenas’s West plea does not limit the record of conviction to the bare elements of his forgery offense
Cardenas tries t o limit the record of conviction to the bare elements of his forgery offense because he ple ade d nolo contendere, or no contest, to the offense under West , supra , 3 Cal.3d 595. When entering a West plea, a defendant agrees to plead guilty to an offense , bu t does not admit to the offense’s alleged factual basis. ( In re Alvernaz (1992) 2 Cal.4th 924, 932.) Cardenas argues that when he entered his West plea
, he was only pleading to “the bare elements of the offense without a factual basis.” The bare element s of a forgery offense do not specify the type of falsified writing. (See Pen. Code, § 470; People v. Castellanos (2003) 110 Cal.App.4th 1489, 1493, quoting CALJIC No. 15.00.) Under section 470, subdivision (d), forgeries of only certain types of writing s create eligibility. ( § 470, subd. (d) [forgery of a “ certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel” does not create eligibility ] ; § 473 , subd. (b) .) Cardenas argues , in essence, that the court erred in looking to the information in determining what type of documents Cardenas forged because the type of writing is not an element of the crime but rather is a fact , and one to which he did not
admit

. Cardenas, however, failed to cite a single case where a court limited the record of conviction to the bare elements of the offense. In fact, his only cite
, Guerrero , supra , 44
Cal.3d 343 , actually supports review of the entire record of conviction

. Granted,
Guerrero is not precisely on point because in Gue rrero the defendant was convicted after a jury trial and the issue on appeal was whether the court, in determining the truth of a prior conviction allegation, could look beyond the prior judgment of conviction to the
entire record of conviction

. ( Guerrero at p. 345.) The Guerrero court, however,
concluded courts may review “ the entire record of the conviction ” in that context. ( Id

. at
p. 355, italics added.) This rule “promotes the efficient administration of justice and, specifically, furthers the evid ent intent of the people in establishing an enhancement for
, ”5

what was at issue in Guerrero , the “ ‘burglary of a residence’

— a term that refers to
conduct , not a specified crime

. ” ( I bi d .) Prop 47 likewise identifies types of conduct rather than types of c rime because without the proposition ’s categorization of certain forgeries as felonies
, all forgeries would be of the same type of crime regardless of the underlying conduct

. In adopting Prop 47 ’s conduct

- based categorizations , the people evidently intend ed the conduct of forging vehicle transfer papers to remain a felony

. A plea to simply a forgery , however, would not disclose whether the underlying facts about the defendant’s conduct made the forgery a misdemeanor or a felony because it involved
vehicle transfer papers . Without the court’s access to these facts, the people’s evident intent to distinguish forgeries based on conduct would be subverted.
Another factor weighs in favor of not limiting the record. Prop 47 permits a court, “in its discretion ,” to deny a petition if “resentencing the petitioner would pose an unreasonable risk of danger to public safety,” and in deciding so may use a number of sources of information, including “[a]ny other evidence the court, within its discretion,
determines t o be relevant

. ” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, p. 74.) Although the public danger exception is not applicable here, the nature of this exception speaks to the people’s desire to equip the court with all the
in formation necessary to make a proper judgment about whether to resentence an offender. Limiting the record of conviction to the bare elements of the defense does not further this goal.
2. The record of conviction includes the accusatory pleading and supp orts ineligibility The record of conviction includes the accusatory pleading. ( People v. Washington (2012) 210 Cal.App.4th 1042, 1045 ( Washington ) , ci ting People v. Abarca (1991) 233
Cal .App.3d 1347, 1350.) Here, in c ount 2 of the information , the D.A. s pecifically alleged Cardenas forged a “Vehicle/Vessel Transfer and Reassignment Form.”
The record of conviction also includes a guilty plea. ( Washington
, supra , 210 Cal.App.4th at p. 1045 .) A nolo contendere plea, like Cardenas’s, is treated as a guilt y plea in subsequent criminal proceedings. ( People v. Rauen (2011) 201 Cal.App.4th 421,6

425. ) Although a nolo contendere plea removes “‘ the threat of collateral estoppel ’” in a
civil suit
, “‘ [t] he Legislature did not provide for a similar exclusion of th e collateral use of a conviction based on a plea of nolo contendere in criminal actions. The full use of the criminal conviction based on a plea of nolo contendere in later criminal actions was neither prohibited by the Legislature nor is it constitutiona lly compelled .’” ( Id . at pp. 425

– 426, quoting People v. Chagolla (1984) 151 Cal.App.3d 1045, 1048

– 1049.) Cardenas does not dispute his plea
, and we therefore give it the full effect of a guilty plea
, including any criminal collateral consequences

. Carden as was ineligible for resentencing because the information in his record of conviction specified he had forged documents relating to the ownership of a vehicle and he pleaded nolo contendere, which we consider here as guilty , to that charge

. DISPOSITION
T he order is affirmed.
NOT TO BE PUBLISHED.

LUI, J.

We concur:

CHANEY, Acting P. J.

JOHNSON, J.