Filed 5/3/16 P. v. Dancy CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E063812

v.                                                                      (Super.Ct.No. RIF1204694)

SPERLIN TYRONE DANCY II,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge.

Affirmed.

         Athena Shudde, 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, A. Natasha Cortina and Kristen

Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Sperlin Tyrone Dancy II filed a petition for resentencing pursuant to

Penal Code section 1170.18, following the enactment of Proposition 47. At the hearing,

the prosecution proffered a police report suggesting the value of the property stolen

exceeded $950, although that information was not part of the record of conviction. The

trial court denied defendant’s petition on the ground the value of the property stolen

during the commercial burglary exceeded $950 and defendant appealed.

       On appeal, defendant argues the trial court erred in considering information

outside the record. We agree with that principle, but we conclude defendant has failed to

meet his burden of showing the value of the property stolen did not exceed the $950

threshold. We affirm.

                                           BACKGROUND

       On November 6, 2012, defendant entered a Walmart Store with the intent to

commit larceny. He was arrested and on December 26, 2012, he was charged by

complaint with commercial burglary of Walmart (Pen. Code, § 459, count 1),1 and petty

theft (§ 490.5, count 2), along with allegations he had previously been convicted of three

felonies for which he had served prison terms (prison priors), within the meaning of

section 667.5, subdivision (b), and one prior serious or violent felony conviction(s)

(Strikes), within the meaning of section 667, subdivisions (c) & (e)(1).

       On May 15, 2013, a three-count information was filed, alleging second degree

burglary (§ 459, count 1), petty theft with a prior theft-related conviction (§§ 484/former

       1   All further statutory references are to the Penal Code unless otherwise indicated.


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666, subd. (b)(1), count 2), and grand theft (§ 487, subd. (a), count 3). It was further

alleged that defendant had three prison priors (§ 667.5, subd. (b)), and one prior serious

felony conviction within the meaning of the Strikes law (§§ 667, subds. (c), (e)(1),

1170.12, subd. (c)(1)). On July 11, 2013, the information was amended to allege three

prior convictions under the Strikes law. (§§ 667, subds. (c) & (e)(1), 1170.12, subd.

(c)(2)(A).

       On February 21, 2014, pursuant to a plea agreement, defendant pled guilty to

count one, commercial burglary, admitted one prison prior and one Strike prior, for an

agreed upon sentence of five years overall. The court sentenced defendant pursuant to

the agreement. Although the court ordered victim restitution in an amount to be

determined by the probation officer, no victim restitution was actually determined or

ordered.

       On December 29, 2014, following passage of Proposition 47 and the enactment of

section 1170.18, defendant filed a petition for resentencing. In his petition, defendant

asserted his belief that the value of the property stolen was less than $950. The People

opposed the petition, asserting that the value of the property stolen exceeded $1500.

Defendant’s reply to the People’s opposition argued that the determination of the amount

of loss was limited to information in the record of conviction. At the hearing, the parties

submitted on their papers. The People argued that the police report stated the value of the




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property stolen was $1518.88.2 The court found that the value of the property stolen

exceeded $950, and denied the petition. Defendant appeals.

                                             DISCUSSION

       A.      The Trial Court Erred in Considering Information Outside the Record of

Conviction, Absent a Stipulation.

       Proposition 47 created a new sentencing provision in section 1170.18. (People v.

Rivera (2015) 233 Cal.App.4th 1085, 1092.) In pertinent part, subdivision (a) of section

1170.18 provides that “[a] person currently serving a sentence for a conviction, whether

by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor

under the act that added this section [ . . . ] had this act been in effect at the time of the

offense may petition for a recall of sentence before the trial court that entered the

judgment of conviction in his or her case to request resentencing in accordance with

Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,

476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or

added by this act.” (§ 1170.18, subd. (a); People v. Rivera, supra, at p. 1092.)

       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).) However, “‘to qualify for

resentencing under the new shoplifting statute, the trial court must determine whether


       2   The police report was not attached to the response or offered into evidence at the
hearing.


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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.)’” (People

v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448, quoting People v. Contreras (2015) 237

Cal.App.4th 868, 892.)

       In determining whether the defendant’s crimes fall within the spirit of Proposition

47, the trial court must determine the facts needed to adjudicate eligibility based on

evidence obtained solely from the record of conviction, unless the parties make any

factual stipulations or agreements that add to but do not contradict the record of

conviction. (People v. Triplett (2016) 244 Cal.App.4th 824, 831-832, citing People v.

Bradford (2014) 227 Cal.App.4th 1322, 1327 (Bradford).) Although Bradford dealt with

a petition for resentencing pursuant to section 1170.126, the language of that statute is

nearly identical to that under consideration here, requiring the trial court to determine the

facts needed to adjudicate eligibility based upon the record of conviction. (See People v.

Triplett, supra, at pp. 831-832.)

       In Bradford, the reviewing court relied on the holding of People v. Guerrero

(1988) 44 Cal.3d 343 (Guerrero), and People v. Woodell (1998) 17 Cal.4th 448,

addressing the type of materials that may be considered to prove a prior conviction

allegation. (Bradford, supra, 227 Cal.App.4th at pp. 1337-1339.) It concluded that the

statutory language and framework of Proposition 36 contemplated a determination of a




                                              5
petitioner’s eligibility for resentencing based on the “record of conviction,” pursuant to

Guerrero and Woodell. (Bradford, supra, 227 Cal.App.4th at p. 1338.)

       Under Guerrero, a court may look to the entire record of the conviction, “but no

further,” in determining the nature of a prior conviction. (Guerrero, supra, 44 Cal.3d at

p. 355, italics original.) The United States Supreme Court is in accord, holding that

determination of the nature of a prior conviction is limited to examining the statutory

definition, the charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the defendant assented.

(Shepard v. United States (2005) 544 U.S. 13, 16 [125 S. Ct. 1254, 161 L.Ed.2d 205].) A

police report could not be considered in making this determination. (Id. at p. 16.) A

police report is not ordinarily part of the record of conviction. (See, Moles v. Gourley

(2003) 112 Cal.App.4th 1049, 1060, citing Draeger v. Reed (1999) 69 Cal.App.4th 1511,

1523 [relating to proof of drunk driving conviction for purposes of license suspension

proceedings].)

       These decisions inform our resolution. In the present case, there is nothing in the

record of conviction to support a finding as to the value of the property stolen. There is

no restitution order from which a value may be inferred. Count two of both the original

information and the amended information alleged a violation of section 666, petty theft

with a prior. Count three alleged theft of property having a value exceeding $950. Both

counts two and three were dismissed as part of the plea bargain, and we cannot tell from




                                             6
the record of conviction if the two counts pertain to the same or different items taken in

the burglary.

       The police report was not a part of the record of conviction in this case, so there is

nothing to support a finding as to the value of the property stolen in the commercial

burglary. Absent an agreement or stipulation that the court could consider information

outside the record of conviction, it was improper to consider the police report.

       B.       Defendant Failed to Sustain His Burden of Proof as to the Value of the

Property Stolen

       Our conclusion that the trial court erroneously relied upon hearsay that was not

part of the record of conviction in determining the value of the property stolen does not

end our inquiry. Proposition 47 was intended to reduce penalties for certain nonserious

and nonviolent property and drug offenses from wobblers or felonies to misdemeanors.

(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) A person who satisfies the

criteria in section 1170.18 shall have his or her sentence recalled and be resentenced to a

misdemeanor, unless the court, in its discretion, determines that resentencing the

petitioner would pose an unreasonable risk of danger to public safety. (§ 1170.18,

subd. (b).)

       But a defendant who files a petition under Proposition 47 bears the burden of

establishing he or she is eligible for misdemeanor resentencing. (People v. Sherow

(2015) 239 Cal.App.4th 875, 878–880 (Sherow).) This is premised on a well-settled




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principle that a party has the burden of proof as to each fact the existence or nonexistence

of which is essential to the claim for relief or defense he is asserting. (Id. at p. 879.)

       Thus, in seeking to have his crime of conviction reduced to a misdemeanor, the

petitioner has the initial burden of establishing eligibility for resentencing under section

1170.18, subdivision (a), such as whether the petitioner is currently serving a felony

sentence for a crime that would have been a misdemeanor had Proposition 47 been in

effect at the time the crime was committed. (Sherow, supra, 239 Cal.App.4th at p. 879.)

If the crime under consideration is a theft offense under sections 459.5 or 496, the

petitioner has the additional burden of proving the value of the property did not exceed

$950. (Sherow, at p. 879, italics omitted, quoting Couzens & Bigelow, Proposition 47:

“The Safe Neighborhoods and Schools Act” (Feb. 2015),

<www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 11, 2015] p. 40;

see also, People v. Rivas-Colon, supra, 241 Cal.App.4th at p. 449.)

       In Sherow, the reviewing court concluded that a “blanket request for resentencing

on all counts without any effort to deal with those which might have involved less than

$950 or to discuss any facts surrounding the offense was fatally defective.” (Sherow,

supra, 239 Cal.App.4th at p. 877.) Similarly, a defendant does not satisfy the burden

where the record of conviction does not establish he was entitled to resentencing.

(People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450.)

       Here, the defendant’s petition alleged his belief that the value of the property taken

was less than $950, but at the hearing he pointed to no evidence in the record of



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conviction to support that information or belief. Because the record of conviction

contains no information whatsoever about the value of the property stolen, the trial court

could not infer that defendant was eligible for resentencing. Thus, even if the court had

not relied upon the police report in denying the petition, its ruling would have been

proper.

                                          DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RAMIREZ
                                                                                        P. J.


We concur:

HOLLENHORST
                          J.

McKINSTER
                          J.




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