People v. Johnson

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.

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

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

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, 183 Cal.Rptr.3d 362 .) 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 misdemeanor, punishable only by imprisonment in a county jail not exceeding one year ...."^[5] (Italics added.)

(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 9, p. 72.)

Proposition 47 also created a procedure whereby a person who is serving a felony sentence for an offense that became a misdemeanor under Proposition 47 may petition for a recall of that sentence and request resentencing under the applicable statute that was added or amended by Proposition 47. (§ 1170.18, subd. (a) ;

Johnson argues that Sherow is not controlling on two basic grounds: (1) Unlike Sherow, in which the petitioning defendant had been found guilty of felony burglary following a trial with a complete record of the underlying theft, here Johnson pleaded guilty to felony receipt of stolen property following the filing of a complaint with little or no record of the underlying theft; and, alternatively, (2) Sherow was wrongly decided.^[6]

We disagree. As we explain, the petitioning defendant, not the prosecution, has the initial burden of establishing eligibility for resentencing, and the trial court is not limited to consideration of the record of conviction. This burden includes presenting evidence that the petitioning defendant "would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense" (§ 1170.18, subd. (a) ), which as applicable in this case means evidence that "the value of the property does not exceed nine hundred fifty dollars ($950)" (§ 496, subd. (a)). Johnson did not meet his initial burden here.

1. Johnson Had the Initial Burden of Establishing Eligibility for Resentencing Under Proposition 47 from Sources Not Limited to the Record of Conviction

Johnson contends on appeal that the trial court properly limited its consideration of evidence to the record of conviction,

resentencing under Proposition 47, the court should be limited to the record of conviction the same as it is under Proposition 36. " 'When legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] intended the same construction, unless a contrary intent clearly appears.' " ( Rivera, supra, 233 Cal.App.4th at p. 1100, 183 Cal.Rptr.3d 362 .)

We agree with Johnson that the two propositions employ similar procedures. We disagree, however, with his suggestions both (1) that the prosecution has the initial burden to establish a petitioning defendant's ineligibility for resentencing,^[8] and (2) that the trial court is limited to consideration of the record of conviction for this purpose. Rather, under both Proposition 36 and Proposition 47, the petitioning defendant has the initial burden of establishing eligibility, and if that burden is met, then the prosecution has the opportunity to establish ineligibility on other grounds. With regard to the evidence the court may consider, there is no indication in either of the two propositions that the voters intended to limit the court's consideration to the record of conviction. Although appellate authority has so limited the trial court's consideration under Proposition 36 ( Bradford, supra, 227 Cal.App.4th at p. 1327, 174 Cal.Rptr.3d 499 ), such a limitation under Proposition 47 would result in potentially insurmountable obstacles to obtaining relief to which a petitioning defendant would be entitled under a consideration of evidence from other sources.

Proposition 36, the voters did not intend to benefit all third strike offenders whose third strike was not for a serious or violent felony, but only those who were perceived as nondangerous or posing little or no risk to the public. ( People v. Arevalo (2016) 244 Cal.App.4th 836 , 846, 198 Cal.Rptr.3d 343 ( Arevalo ).)

Under Proposition 36, a person serving an indeterminate term of life imprisonment imposed under section 667, subdivision (e)(2), or section 1170.12, subdivision (c)(2), for a conviction of a felony that is not defined as serious and/or violent by section 667.5, subdivision (c), or section 1192.7, subdivision (c), may petition for resentencing. (§ 1170.126, subds. (b), (e)(1).) There, the petitioning defendant has the initial burden of establishing eligibility -namely, the requisite conviction and sentence set forth in section 1170.126, subdivision (e). (§ 1170.126, subd. (b).) The prosecution then has the opportunity to oppose the petition by establishing that the petitioning defendant is ineligible on various grounds.^[9] (§ 1170.126, subd. (e)(2)-(3).)

Under Proposition 47, a person serving a sentence for a conviction of a felony "who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense" may petition for resentencing. (§ 1170.18, subd. (a).) By this language, the voters did not intend to benefit all offenders serving a sentence for a felony theft or drug conviction, but only those who would have been guilty of a misdemeanor under the various statutes that were added or amended by Proposition 47. Like Proposition 36, Proposition 47 requires the petitioning defendant to establish initial eligibility for relief-which, under Proposition 47, is "guilt[ ] of a misdemeanor." (§ 1170.18, subd. (a).) Also like Proposition 36, Proposition 47 then allows the prosecution the opportunity to establish that the petitioning defendant is ineligible for resentencing. This may be accomplished either (1) by rebutting the petitioning defendant's evidence, thereby demonstrating that the petitioning defendant would not have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense, or (2) by demonstrating that the petitioning defendant suffered a conviction of one or more of the offenses specified in section 1170.18, subdivision (i).^[10]

b. Record of Conviction

In comparing Proposition 36 with Proposition 47, Johnson further suggests that when determining a petitioning defendant's initial eligibility for resentencing, the trial court is limited to consideration of the record of conviction.^[11] Again, we disagree.

Under Proposition 36, a petitioning defendant is limited to evidence contained in the record of conviction ( Bradford, supra, 227 Cal.App.4th at pp. 1327, 1332, 174 Cal.Rptr.3d 499 ), because "the relevant inquiry in deciding whether a particular prior conviction qualifies as a serious felony for California sentencing purposes is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted " ( People v. McGee (2006) 38 Cal.4th 682 , 691, 42 Cal.Rptr.3d 899 , 133 P.3d 1054 , italics added [consideration whether a conviction from another jurisdiction is a "serious felony" under Three Strikes law, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2) ] ).

In contrast, under Proposition 47 the relevant inquiry for purposes of establishing a petitioning defendant's initial eligibility is "guilt[ ] of a misdemeanor" (§ 1170.18, subd. (a) )-which often cannot be established merely from the record of conviction of the felony. This is because, prior to Proposition 47, where a defendant was convicted of a felony, the facts necessary to establish that the petitioning defendant was guilty of a misdemeanor enacted or amended by Proposition 47 likely would have been irrelevant in charging the defendant with a pre-Proposition 47 felony.^[12]

Stated differently, the initial determination under Proposition 36 is predominantly legal (see People v. Kelii (1999) 21 Cal.4th 452 , 456-457, 87 Cal.Rptr.2d 674 , 981 P.2d 518 ), whereas the initial determination under Proposition 47 is entirely factual. Under Proposition 36 the initial showing required for resentencing is merely evidence of the existence of specified convictions that will be contained in the record of conviction. In contrast,

under Proposition 47 the initial showing required for resentencing must include evidence of facts that would support a conviction of a misdemeanor that was enacted or amended by Proposition 47, which may well require evidence outside of the record of conviction. As such, the trial court is not limited to the record of conviction in its consideration of the evidence to adjudicate eligibility for resentencing under Proposition 47.^[13]

property]" ( Sherow, supra, 239 Cal.App.4th at p. 880, 191 Cal.Rptr.3d 295 ) and "should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief" ( Perkins, supra, 244 Cal.App.4th at p. 140, 197 Cal.Rptr.3d 743 ).

We agree with the reasoning in Perkins and the results reached in Sherow and Perkins. 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.^[16]

DISPOSITION

We affirm the June 3, 2015 order denying Johnson's petition to recall the sentence on his felony conviction for receiving stolen property and to resentence him under Proposition 47. This affirmance is without prejudice to the superior court's consideration of a subsequent petition by Johnson that offers evidence of his eligibility for the requested relief.

WE CONCUR:

McDONALD, Acting P.J.

AARON, J.

and the People do not argue otherwise. Johnson bases his position solely on a citation to People v. Bradford (2014) 227 Cal.App.4th 1322 , 174 Cal.Rptr.3d 499 ( Bradford ), the authority on which the trial court relied in ruling that the parties were confined to the record of conviction. In part, Bradford held that in response to a petition for resentencing under Proposition 36 (§ 1170.126, titled the Three Strikes Reform Act of 2012), "the trial court must determine the facts needed to adjudicate eligibility based on evidence obtained solely from the record of conviction."^[7] ( Bradford, at p. 1327, 174 Cal.Rptr.3d 499 .)

Johnson posits that (1) because Proposition 36 and Proposition 47 both decrease existing sentences and use similar language to define eligibility for resentencing (compare § 1170.126, subd. (f) [Prop. 36] with § 1170.18, subd. (a) [Prop. 47] ) and (2) because neither proposition identifies what evidence a court may consider in determining eligibility, when the trial court makes its initial determination whether the petition satisfies the criteria for

While the petitioning and resentencing procedures under Proposition 36 and Proposition 47 are very much the same (compare § 1170.126 with § 1170.18 ), what must be shown initially in support of the petition under each proposition is not. Thus, the potential sources of evidence necessary for this showing are not the same. For this initial burden under Proposition 47, a petitioning defendant is entitled to present evidence of facts from any source to establish the guilt of the Proposition 47-sanctioned misdemeanor. ( Perkins, supra, 244 Cal.App.4th at p. 140, 197 Cal.Rptr.3d 743 [any probative evidence]; Sherow, supra, 239 Cal.App.4th at p. 880, 191 Cal.Rptr.3d 295 [petitioning defendant's testimony].)

Accordingly, the trial court here erred in ruling that, in establishing the value of the stolen property, "the parties need necessarily to be confined to the record of conviction." However, Johnson is not entitled to a reversal of the order denying his petition. The record on appeal does not contain evidence from any source as to the value of the stolen property-i.e., evidence from which the court could have made the initial determination whether Johnson would have been guilty of a misdemeanor under section 496, subdivision (a), and thus eligible for resentencing under section 1170.18, subdivision (b).^[14] Accordingly, given this record on appeal, because there is no reasonable probability that Johnson would have achieved a more favorable

value of the stolen property did not exceed $950.^[15] ( Sherow, supra , 239 Cal.App.4th at p. 877, 191 Cal.Rptr.3d 295 .)

In Sherow, after holding that the petitioning defendant has the initial burden of establishing eligibility for resentencing under Proposition 47, we commented that a "proper petition" could have "contain[ed] at least [the petitioning defendant]'s testimony about the nature of the items taken." ( Sherow, supra, 239 Cal.App.4th at p. 880, 191 Cal.Rptr.3d 295 .) From this, Johnson attempts to distinguish Sherow on the basis that, because the petitioning defendant in Sherow was convicted after trial ( ibid. ), he had a reporter's transcript that could have been presented to the trial court. In contrast, Johnson's argument continues, because he pleaded guilty here, he has no trial transcript to present.

Johnson reads Sherow too narrowly. There is nothing in Sherow to suggest that the petitioning defendant's "testimony about the nature of the items taken" ( Sherow, supra, 239 Cal.App.4th at p. 880, 191 Cal.Rptr.3d 295 ) must come from a trial transcript. To the contrary, in the sentence immediately preceding the one cited by Johnson, we explained that the trial record in Sherow, which