Filed 5/25/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B284474
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA050792)
v.
RODERICK WASHINGTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Mark S. Arnold, Judge. Reversed and
remanded.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Roderick Washington filed a petition for reclassification
under Proposition 47, the Safe Neighborhood and Schools Act
(Proposition 47), asking that his second degree burglary
conviction be reclassified as a misdemeanor. The trial court
summarily denied the petition on the ground that a burglary
with the intent to commit identity theft does not constitute
“shoplifting” under Proposition 47.
On appeal, petitioner contends, respondent concedes, and
we agree that a burglary with the intent to commit identity
theft may meet the statutory definition of shoplifting under
Proposition 47. However, respondent argues that the court’s
summary denial of the petition was correct because petitioner
did not meet his initial burden of proof. Respondent argues
that a Proposition 47 petitioner has the initial burden of
showing three things: (1) he did not intend to commit a theft of
property exceeding $950, (2) he did not intend to commit a
nontheft felony, and (3) the value of the stolen property did not
exceed $950.
We conclude that legal authorities only support
respondent’s third characterization of a petitioner’s initial
burden under Proposition 47. We further conclude that
petitioner made a prima facie showing that the property stolen
was less than $950. On all these grounds, the trial court erred
in its summary denial of the petition. We reverse and remand
for the trial court to further consider the petition along with
the record of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Based on the incomplete record before us, it appears that
in 2002, petitioner was convicted of (1) identity theft (Pen.
1
Code, § 530.5, subd. (a))1; (2) burglary at a commercial
establishment (§ 459); and (3) possession of a forged driver’s
license (§ 470b). All three counts appear to have arisen from
petitioner having used another person’s identity without
permission to secure credit and thereby purchase items at a
Nordstrom’s store. The trial court sentenced petitioner to
three years in prison.
In November 2014, the voters passed Proposition 47.
(People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
“Proposition 47 was intended to ensure prison spending is
focused on violent and serious offenders, to maximize
alternatives for nonserious, nonviolent crimes, and to invest
the savings generated thereby into educational, social, and
mental health causes. [Citation.] To this end, Proposition 47
reduced most possessory drug offenses and thefts of property
valued at $950 or less to straight misdemeanors.” (People v.
Brown (2017) 7 Cal.App.5th 1214, 1217.)
“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).’ [Citation.]” (People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 448.) In addition,
Proposition 47 created a process whereby a person who has
completed a felony sentence for a crime that would be a
misdemeanor under Proposition 47 may petition to have his or
1 All undesignated statutory references are to the Penal
Code.
2
her conviction reclassified as a misdemeanor.2 (§ 1170.18,
subd. (f).)
One month after Proposition 47 went into effect, in
December 2014, petitioner filed a petition in pro per to have his
2002 burglary conviction reclassified as a misdemeanor. The
trial court summarily denied it on the following ground: “The
theft from Nordstrom was accomplished by identity theft. This
[is] not a shop-lifting type of crime.”
In March 2017, People v. Gonzales (2017) 2 Cal.5th 858
held that entering a bank to cash a stolen check for less than
$950 is “shoplifting” within the meaning of section 459.5. (Id.
at p. 862.) The Court further held that even if the defendant
entered the bank with an intent to commit identity theft, he
could only be charged with shoplifting under section 459.5. (Id.
at p. 876.)
In August 2017, petitioner filed a second petition in pro
per to reclassify his burglary as shoplifting under Proposition
47. The handwritten petition stated that “The defendant crime
consisted of 530.5(a) [identity theft] and 470(b) [forgery] and
459 [burglary] which consisted of 450.00 . . . .”
The trial court, apparently unaware of Gonzales,
summarily denied the petition in reference to its prior order
holding that identity theft does not constitute shoplifting under
Proposition 47. Petitioner filed a writ of habeas corpus
challenging the trial court’s denial of his petition. We
designated his habeas petition as a notice of appeal of the trial
court’s order under Proposition 47. (See § 1237, subd. (b) [a
postjudgment order affecting the substantial rights of the party
2
Petitioner has completed his felony sentence.
3
is appealable]; Teal v. Superior Court (2014) 60 Cal.4th 595,
601.)
DISCUSSION
1. Proposition 47
Under Proposition 47, a person who has completed his or
her sentence for a qualifying conviction may file an application
to have the felony conviction designated as a misdemeanor.
(§ 1170.18, subd. (f).) The application must be filed by
November 4, 2022, unless good cause is shown. (§ 1170.18,
subd. (j).) At least one commentator has suggested that there
is no right to counsel in connection with the preparation of the
petition. (See Couzens, Bigelow & Prickett, Sentencing
California Crimes (The Rutter Group 2018) § 25.15.)
“An applicant is entitled to relief if he or she has
committed a qualified crime and has no disqualifying prior
conviction and is not required to register as a sex offender.
(§ 1170.18(g).) . . . The screening of the application will be
based on the court’s file, including the petitioner’s record of
convictions. . . . The initial screening must be limited to a
determination of whether the applicant has presented a prima
facie basis for relief under section 1170.18. At this level of
review, the court should not consider any factual issues such as
the value of any property taken regarding any qualified theft
crimes.” (Couzens, supra, Sentencing California Crimes,
§ 25.14.)
However, when eligibility for reclassification “turn[s] on
facts that are not established by either the uncontested
petition or the record of conviction . . . an evidentiary hearing
may be ‘required if, after considering the verified petition, the
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return, any denial, any affidavits or declarations under penalty
of perjury, and matters of which judicial notice may be taken,
the court finds there is a reasonable likelihood that the
petitioner may be entitled to relief and the petitioner's
entitlement to relief depends on the resolution of an issue of
fact.’ [Citations.]” (People v. Romanowski (2017) 2 Cal.5th
903, 916.)
2. The Petitioner’s Burden Under Proposition 47
Petitioner contends that the trial court’s stated reason
for denying his petition—that “shoplifting” under section 459.5
does not include identity theft—was rejected by the Supreme
Court in People v. Gonzales (2017) 2 Cal.5th 858. Respondent
concedes this point, and we agree.
Respondent nevertheless posits that affirmance is still
appropriate because the trial court “could simply have denied
the petition” on the grounds that petitioner did not meet his
prima facie burden of showing (1) he did not intend to commit
a theft of property exceeding $950, (2) he did not intend to
commit a nontheft felony, and (3) the value of the stolen
property did not exceed $950.
Respondent cites People v. Gonzales, supra, 2 Cal.5th at
pages 876 through 877 in support of the argument that under
Proposition 47 a petitioner has a prima facie burden of showing
he did not intend to commit a theft of property exceeding $950
or a nontheft felony. Respondent apparently relies on the
Court’s statement that a “felony burglary charge could
legitimately lie if there was proof of entry with intent to
commit a nontheft felony or intent to commit a theft of other
property exceeding the shoplifting limit.” (Id. at p. 877.) We
do not interpret the Supreme Court’s language as meaning
5
that a petitioner bears the prima facie burden of presenting
evidence of these facts in order to get a hearing before the court
on Proposition 47 relief.
We are left with respondent’s argument that petitioner
did not meet his prima facie burden of showing the value of the
stolen property did not exceed $950. In support, respondent
cites to People v. Sherow (2015) 239 Cal.App.4th 875, where
the court held that (1) a Proposition 47 petitioner bears the
initial burden of showing the property stolen did not exceed
$950, and (2) petitioner did not meet this burden where the
petition did not contain any information about the value of the
stolen property. (Id. at p. 880.) In that case, the prosecution
opposed the petition on the ground that the loss exceeded $950,
and the court found from its review of the record that the loss
exceeded $100,000. (Id. at p. 877.)
Here, respondent suggests that in order for a petitioner
to meet his initial burden, he must submit “a declaration, court
documents, [or] record citations” regarding the value of the
stolen property. Stated another way, respondent is arguing
that, in order for a petitioner to meet his prima facie burden of
showing entitlement to Proposition 47 relief, he must provide
additional evidence beyond his own statement about the value
of the stolen property. Petitioner, by contrast, takes the
position that he met his initial burden by affirmatively stating
that the value of the stolen property was $450. We agree with
petitioner.
First, we emphasize that the issue before us involves
“the initial screening” of a Proposition 47 petition which “must
be limited to a determination of whether the petitioner has
presented a prima facie basis for relief under section 1170.18.”
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(Couzens, supra, Sentencing California Crimes, § 25.14.) This
initial screening is based on a review of the petition itself,
generally prepared by the petitioner in pro per, as well as the
record of conviction. (Ibid.) If the court finds, based on the
petition and its review of the record, that there is a prima facie
basis for relief, the court should then hold “a full qualification
hearing at which any additional evidence may be received on
the issue of eligibility.” (Ibid.) Accordingly, we emphasize that
at this point in the process we are only addressing what
information a petitioner must provide to the court prior to a
hearing at which the petitioner and prosecutor may present
evidence not otherwise established by the record.
Second, although petitioner submitted his own
handwritten petition, we note that the Los Angeles Superior
Court has adopted a half-page form for Proposition 47
petitioners.3 The form requires the petitioner to sign a
statement informing the court of (1) the felony of which he was
convicted, and (2) the date of his conviction. The form also
gives the petitioner the option of checking a box stating “The
amount in question is not more than $950.” The form does not
provide space for a petitioner to write in additional information
about the stolen property, nor does it indicate that the
petitioner is required to, or even may, attach any evidence to
the form. Under respondent’s argument, a defendant filling
3 A copy of the form is attached to our opinion. A number
of counties have adopted such forms for use by defendants
petitioning for resentencing and reclassification under
Proposition 47, some of which are mandatory. (See, e.g.,
Superior Court of San Diego County form CRM-277 and
Superior Court of Sacramento County form CR-325.)
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out the approved form correctly would not meet his prima facie
burden.
We cannot agree. To adopt respondent’s argument would
effectively nullify the Los Angeles Superior Court’s efforts to
process Proposition 47 petitions. No petitioner could meet the
prima facie burden without crafting his or her own petition in
derogation of the form adopted by the court, or modifying the
official form to include handwritten statements in the margins
or by attaching additional paperwork.
To the extent People v. Perkins (2016) 244 Cal.App.4th
129 holds otherwise, we respectfully disagree with its analysis.
In Perkins, the defendant filled out the Riverside County
Superior Court form requesting resentencing under
Proposition 47 for his theft conviction. (Id. at p. 135.) The
petition stated “that the value of the stolen property did not
exceed $950. However, [the petitioner] did not identify the
stolen property or attach evidence, a declaration, or include
citations to the record of conviction to support the assertion
that it did not exceed $950 in value.” (Ibid.) The superior
court denied the petition without a hearing on the ground the
stolen property exceeded $950 in value. (Ibid.) The court “did
not explain the basis” for its finding. (Ibid.)
The Court of Appeal affirmed, holding that in order for a
Proposition 47 petitioner to meet his burden of “showing the
value of the property did not exceed $950,” the petitioner “must
attach information or evidence necessary to enable the court to
determine eligibility.” (Perkins, supra, 244 Cal.App.4th at
p. 137.) Petitioner “should describe the stolen property and
attach some evidence, whether a declaration, court documents,
8
record citations or other probative evidence showing he is
eligible for relief.” (Id. at p. 140.)
The Perkins court acknowledged that the record did not,
in fact, support the superior court’s finding that the stolen
property exceeded $950, but held that the petition was
properly denied because “the failure of evidence began with
defendant’s petition.” (Perkins, supra, 244 Cal.App.4th at
p. 139.) However, the court noted that “defendant may have
been misled about the requirements of petitioning for relief
under Proposition 47” because “the form defendant used to
petition includes no space for and no directions to include
evidence or information regarding the value of stolen property.
Even the revised form the superior court now provides omits
any discussion or directions about submitting evidence.” (Id.
at p. 140.) The court reasoned that “when defendant filed his
petition, the ground rules were unsettled” and remanded the
case to allow him an opportunity to resubmit the petition
attaching the necessary evidence. (Ibid.)
Over two years have passed since the filing of Perkins
and our review of the Riverside County form discloses that it
still “includes no space for and no directions to include
evidence or information regarding the value of stolen
property.” (Perkins, supra, 244 Cal.App.4th at p. 140.) Rather,
similar to the Los Angeles County form, the form includes a
box a petitioner may check stating he “believes the value of the
check or property does not exceed $950.” The Riverside form is
mandatory. Thus, although the “ground rules” are now
purportedly settled, petitioners are still being “misled” by
superior court forms directing them to simply check a box
9
regarding the value of the stolen property at issue. (Id. at
p. 140.)
We disagree with Perkins on a secondary ground. It is
unrealistic to expect Proposition 47 petitioners, who are often
self-represented either from prison or upon release, to marshal
evidence at the initial stage to establish that the stolen
property at issue in their convictions did not exceed $950 at the
time it was stolen. Once a petitioner has met his initial burden
of eligibility, the prosecution is allowed “the opportunity to
oppose the petition by attempting to establish that the
petitioning defendant is ineligible” for the requested relief.
(People v. Johnson (2016) 1 Cal.App.5th 953, 965.) “This may
be accomplished . . . by rebutting the petitioning defendant’s
evidence . . . .” (Ibid.) The prosecution, should it choose to, is
much more equipped to do so.
If the prosecution chooses to oppose a Proposition 47
petition on the ground the value of the stolen property exceeds
$950, and this fact is not established by the record of the initial
plea or conviction, the superior court should then hold an
evidentiary hearing at which the value of the property taken
may be considered. (Couzens, supra, Sentencing California
Crimes, § 25:14; Romanowski, supra, 2 Cal.5th 903.) At that
stage, it is likely that a petitioner will be afforded counsel who
can ably present evidence on the disputed factual issues.
(Couzens, supra, Sentencing California Crimes, § 25:15 [“Since
section 1170.18 allows a person to seek ‘resentencing’ or
‘reclassification,’ it would appear the person has a right to
counsel in any court proceeding where the merits of the
application are considered.”].)
10
On these grounds, we conclude that a petitioner’s
statement that the value of the stolen property did not exceed
$950 is sufficient to meet his prima facie burden under
Proposition 47 with respect to the value of the stolen goods in
question. A petition “should allege, and where possible, provide
evidence of the facts necessary to eligibility . . . under section
1170.18.” (People v. Page (2017) 3 Cal.5th 1175, 1189
(emphasis added).) Petitioner’s statement here—that “the
defendant crime consisted of . . . 459 which consisted of
450.00”—was sufficient to meet that initial burden as it
alleged, in Page’s words, the value of the stolen goods was less
than the statutory maximum. Petitioner’s statement was
equivalent to checking a box on the Los Angeles Superior Court
form that the “amount in question is not more than $950.”
The matter is remanded for the trial court to further
consider the petition along with the record of conviction.
Should petitioner’s eligibility for reclassification turn on facts
that are not established by the uncontested petition or record
of conviction, the trial court should hold an evidentiary hearing
on the matter.
///
///
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DISPOSITION
The order is reversed and the matter is remanded for
further consideration on the issue of petitioner’s eligibility for
reclassification under Proposition 47.
RUBIN, ACTING P. J.
WE CONCUR:
GRIMES, J.
ROGAN, J.*
* Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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