Opinion
F071845
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT VINCENT EVERSOLE, Defendant and Appellant.
Heather J. Mackay, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 469149-9)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Heather J. Mackay, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Appellant Robert Vincent Eversole appeals from the denial of his application for resentencing, filed pursuant to Proposition 47. Appellant contends the trial court wrongly placed the burden of demonstrating the value of any stolen goods received on appellant. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 1992, appellant was found in possession of a stolen 1990 Pontiac car. Appellant was charged with, and pled guilty to, receiving stolen property under Penal Code section 496. He was initially granted probation, but was incarcerated following additional convictions.
All statutory references are to the Penal Code.
Following enactment of Proposition 47, appellant filed an application to have his conviction reduced to a misdemeanor. No documents were attached to the petition, although the trial court reviewed the initial probation report in considering appellant's request. The probation report did not provide any information on the value of the vehicle. The court stated it "would imagine even a Grand Am in 1992 was worth over $950" and asked appellant's counsel if he wanted an evidentiary hearing. When counsel denied that request, the court found appellant had failed to meet his burden of establishing the value of the property at issue and denied the application.
Appellant filed a single petition to reduce several prior convictions. However, as all were convictions for which he was no longer incarcerated, they were treated as individual applications.
This appeal timely followed.
DISCUSSION
Appellant contends the trial court wrongly placed the burden on him to prove eligibility. In line with this argument, appellant contends the case of People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow) was wrongly decided. Standard of Review and Applicable Law
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18.' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).) As enacted, section 1170.18 provides that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
Proposition 47 also modified the crime of receiving stolen property. Under section 496 "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" provided the applicant has no disqualifying prior convictions. (§ 496, subd. (a).)
As the trial court's eligibility determination is factual in nature, we review that determination for substantial evidence. (People v. Johnson (2016) 1 Cal.App.5th 953, 960 (Johnson); see also People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; Rivas-Colon, supra, 241Cal.App.4th at p. 452, fn.4 [" '[T]he basic structure of Proposition 47 is strikingly similar to Proposition 36' and 'much of the appellate interpretation of Proposition 36 is likely relevant in the interpretation of Proposition 47.' "].) The Application Does Not Show Appellant Would Have Been Guilty of a Misdemeanor
Appellant sought resentencing on the theory that his prior felony conviction for receiving stolen property would have been a misdemeanor under Proposition 47. The application needed to demonstrate, therefore, that appellant had been convicted of receiving stolen property worth less than $950. (§ 1170.18, subd. (g) ["If the application satisfies the criteria in subdivision (f) ...."]; Sherow, supra, 239 Cal.App.4th at p. 880 ["We think it is entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based."]; Rivas-Colon, supra, 241 Cal.App.4th at p. 449 [burden on petitioner to show value of stolen property was less than $950].)
The application did not support this conclusion. There was no evidence included within the application demonstrating the value of the stolen property appellant received. Without such evidence, the trial court could not find "the application satisfies the criteria in subdivision (f)." (§ 1170.18, subd. (g).)
Appellant contends that Sherow, and presumably any case following it, was incorrectly decided. We disagree. Appellant's reliance on People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero) and Proposition 36 cases such as People v. Bradford, supra, 227 Cal.App.4th 1322 and People v. Manning (2014) 226 Cal.App.4th 1133 is misplaced. As appellant's own citation to Manning demonstrates, in cases where sentence reductions are requested, the burden is initially upon the petitioner to demonstrate eligibility before shifting to the prosecution to demonstrate additional reasons for ineligibility and then returning to the petitioner to demonstrate those reasons do not preclude resentencing. (Manning at pp. 1140, 1144 [after noting that Manning had established the elements of his predicate offense did not require disqualification, remanding so the prosecutor could be given an opportunity to demonstrate at least one prior offense involved disqualifying conduct, followed by Manning being given an opportunity to demonstrate the prosecution's assertion is incorrect].) Nor do we agree that it would be appropriate to place the burden on the prosecution here. In cases where one who was properly convicted and served a valid sentence now seeks a change to that conviction, it is perfectly reasonable to place the burden of demonstrating eligibility under Proposition 47 on the petitioner. (See Johnson, supra, 1 Cal.App.5th at pp. 964-968.) Indeed, the statute itself explicitly contemplates such a burden when, as here, an application for resentencing is filed. (§ 1170.18, subd. (g).)
However, because appellant's application arose before substantial guidance had been given by the courts and there is a reasonable probability, given the lack of evidence submitted and counsel's evidentiary hearing rejection, that appellant may not have understood the burden imposed upon him, it is proper to ensure appellant's application is denied without prejudice to consideration of a subsequent petition which demonstrates appellant's eligibility. (See Johnson, supra, 1 Cal.App.5th at pp. 970-971.)
DISPOSITION
The order is affirmed without prejudice.