Filed 6/21/16 P. v. Mooregrant CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----


THE PEOPLE,                                                                                  C078621

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62117805)

         v.

JASMINE CHIMERE MOOREGRANT,

                   Defendant and Appellant.




         Defendant Jasmine Chimere Mooregrant appeals from the trial court’s orders
finding her second degree burglary conviction ineligible for Penal Code section 1170.18
resentencing. 1 She contends that the record of her conviction establishes that she
committed the crime of shoplifting, rendering her eligible for resentencing. (§ 459.5.)
Finding that defendant failed to carry her burden of establishing that the amount of
property in question did not exceed $950 in value, we affirm the trial court’s orders.




1   Undesignated statutory references are to the Penal Code.

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                                    I. BACKGROUND
       Defendant pleaded no contest to felony identity theft (§ 530.5, subd. (a)) and
second degree burglary (§ 459).
       The factual basis of the plea was provided by the prosecutor as follows: “On or
about April 17th through April 18th, 2012, the victim’s personal credit card was stolen.
The [d]efendant had possession of the victim’s credit card and used that information to
try to obtain cash from an ATM inside Thunder Valley Casino. She did enter Thunder
Valley Casino with the intent of committing thefts therein on or about April 18th, 2012.”
       The trial court sentenced defendant to one year six months in this case (one-third
the middle term of eight months on both counts), and sentenced her in two separate cases
from Sacramento County (case Nos. 12F02700, 12F03160) for an aggregate term of
seven years in state prison.
       On December 15, 2014, defendant filed a section 1170.18 petition for resentencing
on her second degree burglary conviction in this case. The trial court denied the petition.
                                     II. DISCUSSION
       Defendant contends she was eligible for resentencing on her second degree
burglary conviction. We disagree.
       The passage of Proposition 47 created section 1170.18, which provides any
defendant “currently serving a sentence for a conviction . . . of a felony or felonies who
would have been guilty of a misdemeanor under [Proposition 47] had [it] 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” under the
statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a);
see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
       As pertinent to this case, Proposition 47 added section 459.5, which establishes the
offense of shoplifting, a misdemeanor, which is defined as “entering a commercial
establishment with intent to commit larceny while that establishment is open during

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regular business hours, 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); People v.
Rivera (2015) 233 Cal.App.4th 1085, 1091.) This crime displaces the crime of burglary
for those thefts within the $950 amount specified in the statute. (§ 459.5, subd. (a).)
       Defendant asserts that the place where she committed the burglary, Thunder
Valley Casino, is a commercial establishment which she entered during regular business
hours, with the intent to commit a larceny therein. Since the record contains no evidence
of the value of the property she stole or tried to steal, defendant concludes that her
criminal conduct constitutes the crime of shoplifting.
       Defendant’s argument fails because it misallocates the burden of proof to the
prosecution. As the text of section 1170.18, subdivision (a) makes clear, defendant is the
petitioner in a resentencing hearing under this statute. “Except as otherwise provided by
law, 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 that he [or she] is asserting” (Evid. Code,
§ 500.) Therefore, “a petitioner for resentencing under Proposition 47 must establish his
or her eligibility for such resentencing.” (People v. Sherow (2015) 239 Cal.App.4th 875,
878 (Sherow).)
       Defendant claims Sherow was wrongly decided and we should decline to follow it
because it conflicts with the principles regarding allocation of the burden of proof set
forth in People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero). According to defendant,
Guerrero “dictates that, in determining whether a prior conviction qualifies as a serious
or violent felony, the prosecution bears the burden of establishing the petitioner is
ineligible for relief.” She further reasons that applying this rule to Proposition 47 “is a
logical extension of Guerrero.” Defendant additionally claims that under Proposition
36’s analog to section 1170.18, section 1170.126, the prosecution bears the burden of
proving ineligibility once the defendant makes an initial showing of eligibility. She



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concludes, “There is no legitimate rationale that supports placing the burden on the
prosecution for Proposition 36 petitions, but not Proposition 47 petitions.”
       Defendant mischaracterizes Guerrero. Guerrero established that the trier of fact
may look to the entire record of conviction when determining whether a prior conviction
was a serious felony for the purpose of the serious felony enhancement under sections
667 and 1192.7, subdivision (c). (Guerrero, supra, 44 Cal.3d at p. 345.) Due process
places on the People the burden of proving every element of an enhancement beyond a
reasonable doubt. (People v. Tenner (1993) 6 Cal.4th 559, 566; People v. Young (1987)
192 Cal.App.3d 812, 818.) While the Supreme Court states in Guerrero that a “court
may look to the entire record of the conviction to determine the substance of the prior
foreign conviction; but when the record does not disclose any of the facts of the offense
actually committed, the court will presume that the prior conviction was for the least
offense punishable under the foreign law” (Guerrero, supra, at p. 352), this merely
reflects the allocation of the burden of proof in the context of sentence enhancements.2
       Due process does not allocate the burden of proof to the People in the context of
section 1170.18 petitions. “The difficulty with a due process argument based on the
prosecutor’s burden of proof in the initial prosecution for an offense is that the
resentencing provisions of Proposition 47 deal with persons who have already been
proved guilty of their offenses beyond a reasonable doubt. Under this remedial statute, a
petitioner is claiming the crime for which the person has been convicted would be a
misdemeanor if tried after the enactment of the proposition.” (Sherow, supra,
239 Cal.App.4th at p. 880.) Guerrero is therefore inapplicable to the matter before us.




2 Since the United States Supreme Court’s decision in Apprendi v. New Jersey (2000)
530 U.S. 466, the crime and sentence enhancements are “the ‘functional equivalent’ of a
single ‘greater’ crime. [Citation.]” (People v. Sengpadychith (2001) 26 Cal.4th 316,
326.)

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       Defendant’s reliance on section 1170.126 is likewise misplaced. Courts have
consistently held that the prosecution does not have to plead and prove a fact that
disqualifies a defendant from resentencing on his or her three strikes sentence pursuant to
section 1170.126. (People v. Elder (2014) 227 Cal.App.4th 1308, 1311-1312; People v.
Bradford (2014) 227 Cal.App.4th 1322, 1333-1336); People v. Osuna (2014)
225 Cal.App.4th 1020, 1033; People v. Blakely (2014) 225 Cal.App.4th 1042, 1058;
People v. White (2014) 223 Cal.App.4th 512, 526-527.) While courts rely on Guerrero
in determining that the section 1170.126 eligibility determination is limited to the record
of conviction (see Bradford, supra, at pp. 1338-1339), any analysis in Guerrero related to
the prosecution’s duty to plead and prove every element of an enhancement is
inapplicable to both section 1170.126 and section 1170.18.
       Since the record of conviction makes no mention of the amount defendant took or
tried to take from the ATM, defendant has failed to carry her burden of establishing her
eligibility for resentencing and her claim therefore fails.




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                                III. DISPOSITION
      The judgment (order) is affirmed.



                                               /S/

                                              RENNER, J.



We concur:



/S/

RAYE, P. J.



/S/

NICHOLSON, J.




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