Filed 4/28/16 P. v. Larner 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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,                                      E063090

v.                                                                      (Super.Ct.No. SWF1303116)

AMBER NICOLE LARNER,                                                    OPINION

         Defendant and Appellant.




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

Affirmed.

         Susan K. Shaler, 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, Scott C. Taylor, and Daniel

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Amber Nicole Larner pled guilty to one count of felony

second degree burglary (Pen. Code, § 459, count 1), one count of felony identity theft

(§ 530.5, subd. (a), count 3),1 and admitted having a prior strike conviction (§§ 667,

subds. (c), (e)(1), 1170.12, subd. (c)(1)). On February 20, 2014, the superior court

imposed a 64-month prison sentence composed of consecutive terms of two years on the

burglary count and eight months on the identity theft count, each doubled because of the

strike prior.

       California voters later passed Proposition 47, which converted certain theft

offenses into misdemeanors where the value of the stolen property does not exceed $950.

(§ 459.5, subd. (a).) Larner used the resentencing procedure created by Proposition 47

(§ 1170.18, subd. (a)) to petition for resentencing on both counts. The superior court

denied Larner’s petition on the burglary count on the ground the conviction was based on

Larner cashing a forged check worth more than $950 and denied her petition on count 3

on the ground the offense of conviction was not a qualifying felony.

       On appeal, Larner contends the superior court erred in denying her petition on

count 1 because the prosecution did not prove with competent evidence the value of the

forged check exceeded $950. She contends the prosecution had the burden of showing

the value of the forged check exceeded $950 and could not meet that burden by relying




       1        Unlabeled statutory citations refer to the Penal Code.

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on a declaration from outside the record of conviction. Larner contends the prosecution’s

failure to carry its burden entitled her to resentencing.2

       We affirm.

                                               I

                               FACTUAL BACKGROUND

       On February 6, 2014, Larner pled guilty to second degree burglary (§ 459) and

identity theft (§ 530.5). On February 20, 2014, the superior court imposed a 64-month

prison sentence, which included a sentence of two years on the burglary count, doubled

because Larner admitted a strike prior.

       On November 4, 2014, after Larner had begun serving her sentence, the voters of

California passed Proposition 47, reducing some felony theft and drug possession

offenses to misdemeanors. Subject to certain exceptions, Larner’s burglary offense

would now be misdemeanor shoplifting if the value of the property stolen did not exceed

$950. (§ 459.5, subd. (a).) Proposition 47 also created a resentencing procedure

allowing offenders to petition for resentencing if they are “currently serving a sentence

for a conviction” for committing a felony and “would have been guilty of a misdemeanor

under” the provisions added by Proposition 47. (§ 1170.18, subd. (a).)

       On December 17, 2014, Larner filed a petition for resentencing on her burglary

conviction. On January 30, 2015, the superior court denied the petition on the burglary


       2      Larner does not appeal the denial of resentencing on her identity theft
conviction.

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conviction on the basis that Larner was convicted for cashing a forged check valued at

$1,000. Larner did not present evidence respecting the value of the forged check and

contends the record of conviction is silent on its value. The superior court reached its

conclusion by considering evidence outside the record of conviction. Specifically, the

court relied on a declaration in support of an arrest warrant executed by Deputy Sheriff

Samuel Tully. The declaration stated that while inside the Soboba Casino in Hemet,

California, Larner impersonated Jennifer L. and cashed a forged check worth $1,000.

                                              II

                                          DISCUSSION

       Larner contends she was eligible to be resentenced unless the prosecution

established, using evidence from the record of conviction, her burglary offense did not

relate to a forged check with a value exceeding $950. Since the record of conviction was

silent on that issue, and the prosecution relied on evidence from outside the record, she

argues she was entitled to be resentenced. We disagree.

       This case requires us to construe the language of an initiative measure, Proposition

47, and other statutory provisions. The same principles that govern construction of a

statute enacted by the Legislature apply to construing a voter initiative. (Taxpayers for

Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215

Cal.App.4th 1013, 1025-1026, 1056.) If the statutory language is not ambiguous, the

plain meaning governs. (Id. at p. 1025.) Our review involves a pure question of law and

is therefore de novo. (Id. at p. 1026.)


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       An offender who is currently serving a felony sentence for burglary (§ 459) may

qualify to have her sentence recalled and receive a misdemeanor sentence where the facts

show her offense has been reclassified as a misdemeanor. (§ 1170.18, subds. (a), (b)).

Proposition 47 added section 459.5, subdivision (a), which specifies: “Notwithstanding

Section 459, shoplifting is 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)” and provides that, with certain exceptions, “[s]hoplifting shall be

punished as a misdemeanor.” Thus, Larner could be eligible for resentencing if her

burglary conviction involved a theft that did not exceed $950.

       However, it is settled by statute that “[e]xcept 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 is asserting.” (Evid. Code, § 500.)

Proposition 47 itself is silent as to the burden of proof, so Evidence Code section 500

controls. As a result, a petitioner for resentencing under Proposition 47 must establish his

or her eligibility for resentencing. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-

137 (Perkins).) In this case, Larner was required to establish the value of the forged

check did not exceed $950.




                                              5
       Larner did not carry her burden. She simply checked the box on the petition form

indicating she “believes the value of the check or property does not exceed $950.” The

petition attached no evidence, included no declaration, and provided no record citations

to support the factual assertion that the forged check did not exceed $950 in value.

Having failed to present such evidence, Larner failed to meet her burden of showing her

felony conviction would have been shoplifting had Proposition 47 been in effect at the

time of her conviction. The superior court therefore properly denied Larner’s petition.

(§ 1170.18, subd. (b) [“the court shall determine whether the defendant satisfies the

criteria in subdivision (a)”].)

       Larner contends we should refer to Evidence Code section 501 to locate the

burden of proof on petitions brought under Penal Code section 1170.18. We disagree.

Evidence Code section 501 provides that “[i]nsofar as any statute, except [Evidence Code

s]ection 522, assigns the burden of proof in a criminal action, such statute is subject to

Penal Code [s]ection 1096.” Penal Code section 1096 in turn provides that “[a]

defendant in a criminal action is presumed to be innocent until the contrary is proved, and

in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is

entitled to an acquittal, but the effect of this presumption is only to place upon the state

the burden of proving him or her guilty beyond a reasonable doubt.” These principles

plainly applied to Larner before her conviction. But they have no relevance to a petition

brought by a defendant to reduce a sentence after her conviction. Under that




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circumstance, Larner is the party seeking relief, and Evidence Code section 500 provides

that she carries the burden of proof. (Perkins, supra, 244 Cal.App.4th at pp. 136-137.)

       Larner contends People v. Guerrero (1988) 44 Cal.3d 343 supports placing the

burden of proof on the prosecution. We disagree. In Guerrero, the California Supreme

Court recognized courts have applied a presumption in favor of the least offense

punishable where the prosecution sought to enhance a current sentence based on the facts

of a prior case. In such cases the prosecution has the burden of establishing

enhancements apply. (People v. Towers (2007) 149 Cal.App.4th 1066, opn. mod. 150

Cal.App.4th 1273, 1277 [“The prosecution bears the burden of proving beyond a

reasonable doubt that a defendant’s prior convictions were for either serious or violent

felonies”].) As a result, any failure of evidence defeats the ability of the prosecution to

meet its burden to show the prior offense was subject to greater punishment, triggering an

enhancement. Here, as we have discussed, Larner is seeking relief and therefore must

carry the burden of showing her eligibility. The failure of proof therefore cuts against

Larner.

       People v. Bradford (2014) 227 Cal.App.4th 1322 does not support Larner’s

position. In Bradford, the Third Appellate District held that under the Three Strikes

Reform Act of 2012 the prosecution was not permitted to go outside the record of

conviction to establish that the defendant was ineligible for resentencing on the basis of

the nature of his conviction. (People v. Bradford, supra, at p. 1339.) The Bradford court

did not relieve the defendant of his burden of presenting evidence to support his petition.


                                              7
On the contrary, the court indicated “the petitioner would be well advised to address

eligibility concerns in the initial petition for resentencing.” (Id. at p. 1341.) Here, Larner

did not raise such issues and did not offer testimony or other evidence concerning the

value of the forged check. (See Perkins, supra, 244 Cal.App.4th at p. 137.) Without

such a showing, the superior court did not err in deciding Larner had not established her

eligibility for resentencing.

       Finally, Larner contends the superior court erred by ruling on her petition without

holding a hearing. Proposition 47 “‘does not expressly require the trial court to hold a

hearing before considering the eligibility criteria, nor is there a reference to the taking of

“evidence” or other proceeding that would compel involvement by the parties.’

[Citation.]” (Perkins, supra, 244 Cal.App.4th at p. 137.) The statute simply states:

“Upon receiving a petition under subdivision (a), the court shall determine whether the

petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in

subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner

resentenced to a misdemeanor.” (§ 1170.18, subd. (b).) Thus, many petitions can be

resolved based on the filings and information readily available to the superior court.

(Perkins, supra, at p. 138 [noting in some cases “the superior court may be able to

determine whether a petitioner is eligible for resentencing simply by consulting the

record of conviction”].) Larner asserts without authority that resolving her petition

without a hearing violated her due process rights. We see no basis for this contention

where Larner has failed to present a factually supported petition.


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       We are aware Larner challenges the superior court’s order denying her petition on

the ground the court found the forged check exceeded $950 on the basis of evidence

outside the record of conviction. However, on appeal we are concerned with the

correctness of the superior court’s determination, not the correctness of its reasoning.

(People v. Dawkins (2014) 230 Cal.App.4th 991, 1004, as mod. (Oct. 21, 2014), review

den. (Jan. 21, 2015) [“If right upon any theory of the law applicable to the case, [a

decision] must be sustained regardless of the considerations which may have moved the

trial court to its conclusion. [¶] . . . [¶] In other words, it is judicial action, and not

judicial reasoning or argument, which is the subject of review; and, if the former be

correct, we are not concerned with the faults of the latter. [Citation.]”].) As we have

discussed, this record demonstrates Larner failed to carry her burden of establishing she

was entitled to be resentenced, and Larner concedes the record of conviction is silent as

to the amount of the check. Under such circumstances, the deficiency in the petition

warrants affirming the superior court’s order.

       However, as the People concede, if Larner can present credible evidence that the

forged check did not exceed $950, she can file another petition in the superior court. (See

Perkins, supra, 244 Cal.App.4th at p. 140 [“In any new petition, [Larner] should describe

the stolen property and attach some evidence, whether a declaration, court documents,

record citations, or other probative evidence showing [she] is eligible for relief”].)




                                                9
                                          III

                                   DISPOSITION

       We affirm the order denying Larner’s petition for resentencing without prejudice

to her filing a new petition.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                            SLOUGH
                                                                                     J.

We concur:


MILLER
                        P. J.


CODRINGTON
                           J.




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