Filed 9/26/16 P. v. Pierce CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052175

         v.                                                            (Super. Ct. No. 09SF0912)

MATTHEW WARD PIERCE,                                                   OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County, Gassia
Apkarian, Judge. Affirmed.
                   Jared G. Coleman, 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, Charles C. Ragland,
Allison Hawley and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and
Respondent.
                                          *                  *                  *
              Matthew Ward Pierce appeals from the order denying his petition to have
his conviction for grand theft reduced to a misdemeanor pursuant to Penal Code section
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1170.18. Pierce argues the trial court erred by placing the burden on him to demonstrate
his conviction was for theft of property that did not exceed $950 in value. We disagree.
              The general rule is that the party seeking relief from the court has the
burden of proving eligibility or entitlement to such relief, and in this case it is Pierce who
is seeking relief under section 1170.18. Nothing in either the language of the statute or
the case law relied upon by Pierce suggests it is exempt from that general rule.
              The order is affirmed.
                                              I
                                           FACTS


              In September 2009, Pierce was working for a moving company at a home
in San Clemente. The homeowner told the movers not to enter her master bedroom and
master bathroom. However, she later saw Pierce walking out of her master bedroom, and
soon discovered a ring was missing from the purse she had left in the master bathroom.
              In October 2009, the Orange County District Attorney filed a felony
complaint against Pierce, charging him with one count of grand theft of property valued
at over $400 (§ 487, subd. (a)) and one count of receiving stolen property (§ 496, subd.
(a)). The complaint also alleged he had previously suffered two or more serious and
violent felony convictions.
              A preliminary hearing was held in December 2009, and the sole witness
was an Orange County deputy sheriff. The deputy testified as to the circumstances of the
crime, based in part on the statements of the victim. According to the deputy, the victim
valued the ring stolen by Pierce at $8,000.

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

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              In January 2010, the district attorney filed an information charging Pierce
with the same two counts. The information also alleged he had three prior strike
convictions and four prior prison terms.
              Pierce pleaded guilty to both counts and admitted the priors. He was
convicted and sentenced to a total of seven years in prison.
              In November 2014, Pierce filed a petition to recall his sentences on both
counts. The district attorney opposed the petition, disputing Pierce’s claim that the value
of the ring stolen by Pierce did not exceed $950.
              At the hearing, Pierce argued there was no admissible evidence in his
record of conviction to demonstrate the value of the ring he stole exceeded $950 because
the victim’s estimate of the ring’s value was hearsay. The trial court nonetheless denied
the petition, noting that the burden of proving eligibility for relief under section 1170.18
is on the defense, not the prosecution, and the record contained no evidence
demonstrating the value of the ring he stole was $950 or less.
                                              II
                                       DISCUSSION


              Section 1170.18, enacted in 2014 as part of Proposition 47 (People v.
Rivera (2015) 233 Cal.App.4th 1085, 1092), states in pertinent part 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 [Proposition 47] (‘this act’)
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 . . . this act.” (§ 1170.18, subd. (a).)
              And because section 1170.18 offers this relief to only some felons, the
statute requires the court “[u]pon receiving a petition under subdivision (a),” to
“determine whether the petitioner satisfies the criteria in subdivision (a).” (§ 1170.18,

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subd. (b).) As Pierce acknowledges, the statute “d[oes] not specify which party bears the
burden of proving whether a petitioner ‘would have been guilty of a misdemeanor’ under
some provision of Proposition 47.”
              In this case, Pierce’s petition hinges on section 490.2, one of the statutes
that redefined what would previously have been a felony as a misdemeanor under
Proposition 47. Section 490.2, subdivision (a), states that “[n]otwithstanding . . . any
other provision of law defining grand theft, obtaining any property by theft where the
value of the money, labor, real or personal property taken does not exceed nine hundred
fifty dollars ($950) shall be considered petty theft and shall be punished as a
misdemeanor.”
              Thus, the salient fact to be determined in deciding whether Pierce was
eligible for relief was whether the ring he was previously convicted of stealing was worth
$950 or less. Pierce contends the court erred by placing the burden of proving that fact
on him. We cannot agree.
              The same argument was rejected in People v. Sherow (2015) 239
Cal.App.4th 875, 879 (Sherow), People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448-
450, and People v. Perkins (2016) 244 Cal.App.4th 129, 136-137. Each of these cases
relies on Evidence Code section 500, which states, “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 he is asserting.” (Sherow, at p. 879; see Rivas-
Colon, at p. 450; Perkins, at p. 136.) And of course, in the case of a petition for
resentencing under section 1170.18, it is the defendant, not the prosecutor, who is seeking
relief from the court.
              Pierce acknowledges this, but argues his only burden under section 1170.18
was to establish his conviction was for an offense that “might qualify for reclassification
as a misdemeanor” (italics added), and once he had done that, “the burden shifts to the
prosecution for whom it is an essential fact to show the conviction did not, in fact, so

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qualify.” But merely showing that his offense “might” qualify for reclassification does
not establish “each fact . . . essential to the claim for relief . . . he is asserting” (Evid.
Code, § 500), and thus it would not satisfy Pierce’s burden of proof as the party seeking
relief under section 1170.18. Instead, his argument amounts to a claim that it is
ultimately the prosecution’s burden to demonstrate his conviction did not qualify him for
relief. We reject that claim as inconsistent with Evidence Code section 500.
               Pierce also relies on Evidence Code section 501 – and by extension section
1096 – as support for a general rule that “in criminal cases, the burden of proof is on the
prosecution.” But Evidence Code section 501 provides no support for that claim because
it does not specify any burden of proof in criminal cases. Instead, it merely states that
“[i]nsofar as any statute . . . assigns the burden of proof in a criminal action, such statute
is subject to Penal Code Section 1096.” (Italics added.) And section 1096, in turn,
merely establishes the presumption of innocence that attaches in a criminal case “until the
contrary is proved,” and that the defendant’s guilt must be proved beyond a reasonable
doubt. (§ 1096.) But the guilt of a defendant petitioning for relief under section 1170.18
has already been proved. Thus, neither Evidence Code section 501 nor section 1096
establishes any presumptions or special burdens of proof that would apply to a
resentencing petition under section 1170.18.
               Evidence Code section 500 also answers Pierce’s assertion that section
1170.18 is ambiguous because it fails to set forth a burden of proof, and thus that the rule
of lenity would require the burden be placed on the prosecution. “[T]he rule of lenity is a
tie-breaking principle, of relevance when ‘“two reasonable interpretations of the same
provision stand in relative equipoise.”’” (Lexin v. Superior Court (2010) 47 Cal.4th
1050, 1102, fn. 30.) But that rule applies “‘only if the court can do no more than guess
what the legislative body intended; there must be an egregious ambiguity and uncertainty
to justify invoking the rule.’” (People v. Avery (2002) 27 Cal.4th 49, 58.) Here,



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Evidence Code section 500 supplies the burden of proof that is not specified in section
1170.18, and thus resolves whatever latent ambiguity might otherwise be inferred on that
point.
              Finally, Pierce also asserts that in cases analyzing petitions for resentencing
relief under section 1170.126 (enacted in 2012 as part of Proposition 36), courts have
placed the burden of proving whether a prior conviction is eligible for resentencing on the
prosecution, and he argues the same rule must be applied here. We disagree with his
reading of the cases he cites.
              In neither People v. Manning (2014) 226 Cal.App.4th 1133, nor People v.
Bradford (2014) 227 Cal.App.4th 1322, did the court address the burden of proof.
Instead, both courts merely concluded that the initial determination of whether a prior
conviction qualified for relief under section 1170.126 was to be made by the court, based
on the “record of conviction” – i.e., the same underlying evidentiary record which the
Supreme Court concluded in People v. Guerrero (1988) 44 Cal.3d 343 (Guerrero), could
be used to determine whether a defendant’s prior conviction would qualify as a “strike”
under the “Three Strikes” law. (§§ 667, 1170.12.)
              Moreover, Guerrero itself does not support Pierce’s claim. While he
acknowledges Guerrero does not specifically address the burden of proof issue, Pierce
relies on it for the proposition that in cases where the underlying record of conviction
does not establish the severity of a prior offense, the court must presume the conviction
“was for the least offense punishable.” (Guerrero, supra, 44 Cal.3d. at p. 352.)
However, Guerrero addresses that issue in the context of examining whether a
defendant’s prior conviction would qualify as a “strike,” which would justify imposing a
lengthier sentence for a current crime. In that context, it is the prosecution – the party
requesting imposition of the lengthier sentence – who has the burden of establishing the
necessary fact. And the presumption that a defendant’s prior conviction is for the least



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crime punishable is merely reflective of that prosecutorial burden of proof; in the absence
of affirmative evidence demonstrating the prior offense qualifies as a “strike,” the
prosecution will not have satisfied its burden of proof. But here, the burden of proof is
on Pierce, rather than on the district attorney, and thus he is the one who is required to
affirmatively prove his case. He cannot do so by relying on presumptions.
              By relying on Guerrero, Pierce makes the same error committed by the
defendant in Sherow, i.e., “The cases he cites, dealing with such matters as the burden of
proof to prove the crime of grand theft, address the question of whether in the initial
prosecution for certain alleged crimes, the People must prove the amount of the theft
meets the criteria for the offense” while “the resentencing provisions of Proposition 47
deal with persons who have already been proved guilty of their offenses beyond a
reasonable doubt.” (Sherow, supra, 239 Cal.App.4th at p. 880, italics added.)
              As we have already explained, it is Pierce, and not the district attorney, who
petitioned the court under section 1170.18 for relief from a sentence that had already
been validly imposed upon him. Thus, it was Pierce who had the burden of proving the
facts entitling him to that relief – in this case, that the property he obtained by theft was
valued at $950 or less. In the absence of such evidence, we find no error in the trial
court’s denial of his petition.




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                                         III
                                     DISPOSITION


            The order is affirmed.



                                               MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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