Filed 8/29/16 P. v. Smith 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E064413

v.                                                                      (Super.Ct.No. INF037730)

GLEN MICHAEL SMITH,                                                     OPINION

         Defendant and Appellant.



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

Reversed with directions.

         Robert L.S. Angres, 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, Allison V. Hawley, and A.

Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Glen Michael Smith filed a petition to have his 2001 felony second

degree burglary conviction (Pen. Code, § 459) reclassified as a misdemeanor shoplifting

conviction (§ 459.5)1 under Proposition 47. (§ 1170.18.) The People did not contest

Smith’s eligibility for reclassification; however, the superior court summarily denied the

petition based on its finding that Smith “broke into [a] dentist’s office at 10:20 pm.”

       Because the record does not contain enough information to afford meaningful

appellate review of the court’s factual finding, we reverse the ruling and remand for

further proceedings under section 1170.18.

                                              I

                     FACTS AND PROCEDURAL BACKGROUND

       On June 15, 2001, the People filed a felony complaint against Smith, charging him

with two counts (counts 1, 2) of felony second degree burglary. On September 13, 2001,

Smith pled guilty to count 1, waived his right to a presentence report, and elected to be

immediately sentenced. The trial court dismissed count 2 as part of the plea agreement

and placed Smith on probation for three years with credit for 183 days served.

       The only information in the appellate record on the factual basis for count 1 comes

from the complaint and Smith’s probation terms and conditions. The complaint states

Smith burglarized 34010 Date Palm, Cathedral City, California and the probation terms




       1   Undesignated statutory references are to the Penal Code.

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and conditions describes the victim as Dr. Takbiu Lo.2

       On March 16, 2015, Smith filed a petition for reclassification under section

1170.18, subdivision (f), checking the box stating he “believes the value of the check or

property does not exceed $950.” In their response, the People checked the box stating

Smith was “entitled” to relief.

       On July 29, 2015, the superior court summarily denied Smith’s petition. The court

wrote on the order: “[D]ef. broke into dentist’s office at 10:20 pm—not eligible—not

open commercial establishment.” Smith timely appealed.

                                             II

                                      DISCUSSION

       Proposition 47 reduced certain felony and wobbler offenses to misdemeanors and

created new misdemeanor offenses. (People v. Rivera (2015) 233 Cal.App.4th 1085,

1091.) Proposition 47 also created two separate mechanisms for reclassifying felony

convictions as misdemeanors, depending on whether the defendant is serving or has

completed a sentence for an eligible felony conviction. (§ 1170.18, subds. (a), (f).)

Section 1170.18, subdivision (a), authorizes the court to recall and resentence a defendant

“currently serving” a sentence for a conviction that “would have” been a misdemeanor if

the crime had been committed after Proposition 47’s passage. (§ 1170.18, subds. (a),

       2   The probation terms and conditions requires Smith to remain 500 yards away
from 34400 Date Palm, Cathedral City, California, which is the address the complaint
lists for count 2. This suggests there may be some confusion as to the location of the
burglary in count 1. In his request for a certificate of probable cause, Smith appears to
assert the establishment he burglarized was a flower shop, not a dentist office.

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(b).) For defendants like Smith who have already completed their sentences, section

1170.18, subdivision (f) authorizes the court to reclassify qualifying convictions as

misdemeanors.

       As relevant to Smith’s case, one of the new offenses Proposition 47 created is

“shoplifting,” defined as “entering a commercial establishment with intent to commit

larceny while that establishment is open during 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, italics added.) In denying the petition, the court ruled Smith’s

offense did not satisfy the open during business hours requirement based on its finding

that Smith broke into a dentist office at 10:20 p.m. when the office was closed.

       1.     The Court’s Factual Finding

       Smith argues we cannot affirm the court’s ruling because the court “did not

identify the source” of its factual finding. His argument is well taken.

       Section 1170.18 allows a person to file a petition and requires the court to

determine eligibility, but is silent as to various procedural aspects, such as which party

bears the burden of proof, what type of evidence the court can consider, and whether

hearings are necessary. (See generally § 1170.18; see also People v. Perkins (2016) 244

Cal.App.4th 129, 136-138 (Perkins) [discussing petitioning procedure under § 1170.18].)

When considering a Proposition 47 petition, the superior courts have access to the record

of conviction as well as their court files. (See Perkins, supra, at p. 138; see also Couzens

& Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (May 2016)


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p. 38 (Couzens & Bigelow), at <http://www.courts.ca.gov/documents/Prop-47-

Information.pdf> [as of Aug. 3, 2016] [review of “court’s file” may establish

ineligibility].) This means that, in some cases, a court’s determination of eligibility could

rest on findings based on evidence to which we have no access on appeal. Such is the

case here. The superior court made a factual finding—that count 1 was based on Smith’s

breaking into a closed dentist office—but the record is silent; it contains no evidence for

us to review.

       An appellate court reviews a trial court’s factual findings under the substantial

evidence standard. (People v. Semaan (2007) 42 Cal.4th 79, 87.) This standard requires

us to determine whether the record contains evidence that is “reasonable, credible, and of

solid value” to support the trial court’s finding. (People v. Hovarter (2008) 44 Cal.4th

983, 997; see also People v. Pearson (1969) 70 Cal.2d 218, 221-222, fn. 1 [appellate

review is confined to the record].) The standard is deferential, but it has limits. “[T]he

word [substantial] cannot be deemed synonymous with ‘any’ evidence. It must be

reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of

the essentials which the law requires in a particular case.” (Estate of Teed (1952) 112

Cal.App.2d 638, 644.) Without the evidence the superior court relied on to determine

Smith was ineligible for resentencing, or even a description of the evidence, we are

unable to determine whether the court’s finding is supported by substantial evidence.

(See, e.g., Krause v. Apodaca (1960) 186 Cal.App.2d 413, 420 [reversing trial court’s




                                              5
judgment because “the record discloses no evidence” to support court’s finding that

defendant was not negligent].)

       We recognize the rule that a defendant who seeks to challenge a trial court’s

factual finding carries the burden of demonstrating error on appeal. If the defendant

cannot affirmatively demonstrate error, we uphold the finding based on the basic

principle of appellate review that a trial court’s factual findings are presumed correct.

“Perhaps the most fundamental rule of appellate law is that the judgment challenged on

appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate

error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) However, a corollary

of this rule is that “[a criminal] defendant is entitled to a record that is adequate to permit

meaningful review.” (People v. Howard (1992) 1 Cal.4th 1132, 1165.) It is a basic

matter of due process that a party who is adversely affected by a trial court’s factual

finding must be able to challenge that finding on appeal. “The right to appeal is vital to

the integrity of our criminal justice system and the foreclosure of meritorious appellate

review offends our basic notions of justice and due process of law.” (People v. Rivera

(1981) 127 Cal.App.3d 136, 146.)

       Because the superior court’s factual finding that Smith is ineligible for

resentencing is not supported by substantial evidence, we reverse and remand for further

proceedings under section 1170.18. On remand, if the court decides the petition on the

merits without a hearing, it should describe the evidentiary basis of its factual findings so

as to enable appellate review. Alternatively, the court may hold a hearing and provide


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the parties an opportunity to present evidence and argument on the issue of Smith’s

eligibility.

        2.     The Prima Facie Burden

        The People urge us to affirm the trial court’s ruling on the alternative ground that

Smith’s petition was deficient for failing to establish his eligibility for relief. Had the

court not reached the merits of Smith’s petition, and had the People not agreed Smith was

entitled to relief, we could affirm on this basis. (See, e.g., People v. Sherow (2015) 239

Cal.App.4th 875 (Sherow) [affirming court’s denial on basis of deficient, contested

petition and allowing defendant to refile a properly supported petition]; Perkins, supra,

244 Cal.App.4th 129 [same].) However, by reviewing the record for evidence and

issuing a ruling based on factual findings regarding the nature of Smith’s offense, the

superior court proceeded past the initial screening stage and reached the merits of the

petition. (See Sherow, supra, at p. 880 [once a defendant has “made the initial showing,”

the court should “take such action as appropriate to grant the petition or permit further

factual determination”]; see also Couzens & Bigelow, supra, at p. 37 [“Proposition 47

contemplates a potential four-step process: (1) the filing of a petition requesting

resentencing, (2) an initial screening for eligibility, (3) a qualification hearing where the

merits of the petition are considered, and, if appropriate, (4) a resentencing of the

crime”].) This is because by not denying the petition on the pleadings and instead

proceeding to the merits, the court made a threshold determination that the pleadings

established an initial showing that there was a reasonable probability Smith was entitled


                                               7
to resentencing. In other words, the court has determined there is enough information in

the pleadings and the court’s file to join the issues and allow for a determination on the

merits. (See, e.g., People v. Duvall (1995) 9 Cal.4th 464, 475 [when a court issues an

order to show cause in a habeas proceeding, the court has made an implicit finding that

the petitioner has met his or her prima facie burden on the issues identified in the order to

show cause].)

       We emphasize this conclusion in no way alters the fundamental rule that—at each

stage—a Proposition 47 petitioner bears the burden of proof to demonstrate he or she is

entitled to relief. (See, e.g., Sherow, supra, 239 Cal.App.4th 875; Perkins, supra, 244

Cal.App.4th 129.) This burden will remain with Smith on remand, and if the court

permits additional pleadings or a hearing, it is Smith who must demonstrate his burglary

constitutes shoplifting under Proposition 47.3 Our conclusion is simply that the court

moves past the initial screening stage when it reviews the record, makes factual findings,

and determines the petition’s merits. Smith had no opportunity below to challenge the

evidence the superior court relied on in denying his petition. If we affirm the court’s

ruling based on Smith’s failure to meet his prima facie burden of demonstrating

entitlement to relief, we foreclose his ability to challenge that evidence even on appeal.

Therefore, when we are asked to review a superior court’s factual finding on a

       3  We note there is some confusion about a statement Smith made in his request
for a certificate of probable cause attached to his notice of appeal. The statement regards
the underlying facts of Smith’s burglary, but it is unclear whether Smith was referring to
the count 1 burglary or the dismissed count 2 burglary. On remand, the trial court may
consider Smith’s statement if it finds it is relevant to the facts of count 1.

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Proposition 47 petition but the appellate record is silent, we believe the proper remedy is

to remand the case to the superior court for further proceedings. The ruling the superior

court ultimately issues on remand should describe the basis of the court’s decision in a

manner sufficient to permit appellate review.

                                            III

                                     DISPOSITION

       The order appealed from is reversed and the matter is remanded to the superior

court for proceedings under section 1170.18 consistent with this opinion.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               SLOUGH
                                                                                            J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




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