California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County, No.
SCD245781, Laura Whitcomb Halgren, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Kent, under appointment by the Court of Appeal, for Defendant
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.
by Irion, J., with McDonald, Acting P. J., and Aaron, J.,
Cal.Rptr.3d 249] 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. 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
Cal.Rptr.3d 250] FACTUAL AND PROCEDURAL
January 2013 complaint, the district attorney charged Johnson
(and a codefendant) with one count of receiving stolen
property in violation of
section 496, former subdivision (a). (Stats. 2011, ch. 15,
§ 372.) 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
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 [183
Cal.Rptr.3d 362] ( Rivera ).) " Proposition 47
makes certain drug- and 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 a 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).)
April 2, 2015, the court revoked mandatory supervision for
Johnson and ordered him to serve the remaining 295 days of
his sentence in custody.
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.
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 [205 Cal.Rptr.3d 251] 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.
filed points and authorities, contending that because his
original petition contained a prima facie showing that he was
eligible for Proposition 47 relief, 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.
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.
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.
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 [205
Cal.Rptr.3d 252] eligibility was on Johnson, who did not meet
relevant to this appeal, Proposition 47 amended section 496.
( Rivera, supra, 233 Cal.App.4th at p. 1091.) In
part, recently amended section 496, subdivision (a) provides:
" Every person who buys or receives any property that
has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be
so stolen or obtained, or who conceals, sells, withholds, or
aids in concealing, selling, or withholding any property from
the owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in a county jail for not
more than one year, or imprisonment pursuant to subdivision
(h) of Section 1170. However, if the value of the
property does not exceed nine hundred fifty dollars (
$950 ) , the offense shall be a ...