People v. Johnson

         APPEAL from an order of the Superior Court of San Diego County, No. SCD245781 Laura W. Halgren, Judge.

          Jill Kent, under appointment by the Court of Appeal, 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 Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

         ORDER MODIFYING OPINION

         THE COURT:

         On the court's own motion, the opinion filed in this matter on June 23, 2016, is modified as follows:

         In the first paragraph on page 22, the second sentence beginning with the word "Accordingly, " the word "granting" is changed to "denying" so the full sentence reads as follows:

         Accordingly, our affirmance of the order denying Johnson's section 1170.18, subdivision (a) petition is without prejudice to the superior court's consideration of a subsequent petition that contains evidence - not limited to the record of conviction - of Johnson's eligibility for relief under Proposition 47.

         There is no change in judgment.

          IRION, J.

         Branden Johnson appeals from an order of the superior court denying his petition to recall his felony sentence for receiving stolen property and to resentence him to a misdemeanor, as allowed in Penal Code section 1170.18, subdivision (a), which was enacted as part of Proposition 47.^[1] On appeal, Johnson argues that the trial court erred in ruling that he, not the People, had the burden of establishing eligibility for Proposition 47 relief. We disagree and will affirm the order. The affirmance is without prejudice, in the event Johnson wants to file a new petition in which he may attempt to meet his initial burden of demonstrating entitlement to relief under Proposition 47.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND^[2]

         In a January 2013 complaint, the district attorney charged Johnson (and a codefendant) with one count of receiving stolen property in violation of section 496, subdivision (a). In August 2013, pursuant to a negotiated plea agreement, Johnson pleaded guilty; the factual basis for the plea was that he "unlawfully [and] knowingly possessed stolen property." In November 2013, the court denied probation (due to Johnson's prior convictions) and ordered Johnson to serve a three-year split sentence - two years in county jail and one year suspended with mandatory supervision.

         On November 4, 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act; and under the California Constitution (art. II, § 10, subd. (a)), it became effective the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) "Proposition 47 makes certain... theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Rivera, at p. 1091.) As relevant to the issue on appeal, Proposition 47 allows for the defendant to be resentenced and the felony conviction for receiving stolen property to be deemed a misdemeanor upon a showing that the value of the stolen property did not exceed $950. (§§ 1170.18, subds. (a) & (b), 496, subd. (a).)

         On April 2, 2015, the court revoked mandatory supervision for Johnson and ordered him to serve the remaining 295 days of his sentence in custody.

         Approximately one week later, Johnson filed a form petition signed by his attorney, requesting that Johnson's felony sentence be recalled and that he be resentenced under section 1170.18, subdivisions (b) and (d). The one-page check-the-box petition contained only the date of conviction ("11/07/13, " which was the date of sentencing, not conviction), the crime of which Johnson was convicted ("PC496(a)"), the sentence ("3 years confinement") and the request for resentencing. The case was assigned to the original sentencing judge (§ 1170.18, subd. (l)), who requested briefing from both sides and placed the matter on the court's calendar for hearing.

         In May 2015, the People filed points and authorities in opposition to Johnson's petition, arguing in relevant part that Johnson did not meet his burden of presenting evidence that established his entitlement to relief under Proposition 47. More specifically, the People argued that Johnson did not establish from the record of conviction that the offense of which he was convicted involved a theft of property valued at less than $950. In support, the People submitted copies of some of the text of Proposition 47 and an August 2013 probation report that was prepared in anticipation of Johnson's original sentence on the felony conviction following his negotiated guilty plea.

         Johnson filed points and authorities, contending that because his original petition contained a prima facie showing that he was eligible for Proposition 47 relief, ^[3] the burden shifted to the prosecution to establish that he was not entitled to relief - a burden, he argued, the prosecution did not meet by relying on the probation report, which is not part of the record of conviction. More specifically, Johnson contended that, because the record of conviction was silent as to the value of the stolen property, the court could "only find the least adjudicated offense under the record, " which Johnson argued was a misdemeanor. In support, Johnson submitted a copy of the eight-page police report in which the arresting officer filled out a form and attached a narrative report of the arrest. Johnson argued that statements in the arrest report established that the value of the stolen property in his possession that formed the basis of his conviction was less than $950 and should be admissible because the report was like a preliminary hearing transcript, which is part of the record of conviction.^[4]

         The People filed a reply, emphasizing that the burden of proof was on Johnson and arguing that, by submitting a barebones check-the-box form petition that contained no evidence regarding the stolen property in his possession, the petition should be denied for lack of a prima facie showing of eligibility to Proposition 47 relief. Alternatively, the People argued that, if the court determines Johnson to have made a sufficient showing of eligibility, then the petition still should be denied because Johnson did not present any actual evidence that the value of the stolen property did not exceed $950.

         At the June 3, 2015 hearing, the court denied Johnson's petition. The court explained: In attempting to establish the value of the stolen property, "the parties need necessarily to be confined to the record of conviction"; Johnson had the burden of proof to establish "through the record of conviction" that the value of the stolen property did not exceed $950 (in order to qualify for Prop. 47 relief); and Johnson did not meet his burden of proof.

         Johnson timely appealed.

         II.

         DISCUSSION

         In determining whether the trial court properly applied section 1170.18, subdivision (a), we must decide, first, who had the burden of establishing the value of the stolen property that formed the basis of Johnson's felony conviction and, second, whether that party met the required burden. All that is at issue in this appeal is the burden at the time the trial court determines the petitioning defendant's initial eligibility "[u]pon receiving a petition under subdivision (a)." (§ 1170.18, subd. (b).) As we explain, the initial burden of establishing eligibility was on Johnson, who did not meet it.

         A. Proposition 47

         As relevant to this appeal, Proposition 47 amended section 496. (Rivera, supra, 233 Cal.App.4th at p. 1091.) In part, recently ...