Opinion
F071752
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MAURICE VIRGIL THOMAS, Defendant and Appellant.
Robert Navarro, 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, Daniel B. Bernstein and F. Matt Chen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12908774)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Robert Navarro, 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, Daniel B. Bernstein and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Detjen, J. and Peña, J.
-ooOoo-
Appellant Maurice Virgil Thomas appeals from the denial of his application for resentencing, filed pursuant to Proposition 47. Appellant contends the trial court failed to clearly articulate why it denied his application and wrongly placed the burden of demonstrating the value of any goods stolen on appellant. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2012, appellant was charged with identity theft (Pen. Code, § 530.5, subd. (a); count 1), second degree commercial burglary (§§ 459, 460, subd. (b); count 2), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 3). In January 2013, appellant pled nolo contendere to counts 1 and 2. In exchange, count 3 was dismissed and appellant was granted probation, which would run concurrent with a separate probation violation. Appellant later violated probation on counts 1 and 2 and was sentenced to a term of one year and four months.
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. At appellant's initial plea hearing, appellant's crime was generally described as unlawful entry into "a commercial building alleged to be here a Money Mart with the intent to commit theft or some felony in that building." No further facts regarding this offense are in the record presented on appeal. At the hearing on appellant's application, counsel, when asked whether appellant desired an evidentiary hearing on count 2, stated "No" and proceeded to rely on briefing submitted regarding the burden of proof in such matters.
The court denied appellant's petition, relying on two orders from other cases holding that entering a store with the intent to commit identity theft or entering with the intent to commit theft by false pretenses would not qualify as shoplifting under Proposition 47 and that appellant held the burden of proof on eligibility. 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." (Id., subd. (f).) "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (Id., subd. (g).)
"Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor 'where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).' (§ 459.5, subd. (a).) '[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. (§ 459.5.)' " (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.)
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 Rivas-Colon, supra, 241 Cal.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.' "]; People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331 (Bradford).) 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 second degree burglary would have been a misdemeanor under Proposition 47. The application needed to demonstrate, therefore, that appellant had been convicted of shoplifting property worth less than $950. (§ 1170.18, subd. (g) ["If the application satisfies the criteria in subdivision (f) . . . ."]; Rivas-Colon, supra, 241 Cal.App.4th at p. 449 [burden on petitioner to show value of stolen property was less than $950]; 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."].)
Appellant's application did not support this conclusion. There was no evidence included within the application demonstrating the value of the property appellant intended to steal. Moreover, there were no facts presented regarding appellant's crime, rendering it impossible to determine whether he committed the new crime of shoplifting. 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 and Proposition 36 cases such as Bradford 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. (Id. 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 properly convicted and serving a valid sentence seeks a reduction of that sentence, it is perfectly reasonable to place the burden of demonstrating eligibility for a sentence reduction under Proposition 47 on the petitioner. (See Johnson, supra, 1 Cal.App.5th at pp. 964-968.) Indeed, the statute 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 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.