Filed 10/16/15

                           CERTIFIED FOR PUBLICATION
             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              FIRST APPELLATE DISTRICT
                                      DIVISION FIVE




THE PEOPLE,
                                                          A144390
        Plaintiff and Respondent,
                                                          (San Francisco County
        v.                                                Super. Ct. No. SCN222197)

JOSEPH RIVAS-COLON,

      Defendant and Appellant.
______________________________________/

        Appellant Joseph Rivas-Colon pled guilty to felony second degree commercial
burglary (Pen. Code, § 459)1 and the trial court placed him on probation. Rivas-Colon
later petitioned for resentencing pursuant to section 1170.18 and section 459.5,
subdivision (a), which classifies shoplifting as a misdemeanor where the value of the
property taken or intended to be taken does not exceed $950. The court denied the
petition, concluding Rivas-Colon was not eligible for resentencing because the value of
the property exceeded $950.
        Rivas-Colon appeals. He contends the court erroneously denied his resentencing
petition because: (1) the prosecution, not the defendant, has the burden of proof on a
petition for resentencing brought pursuant to section 1170.18; (2) the court erred by
considering the police report and store receipt when determining his eligibility for
resentencing; and (3) he had a right to a jury trial on the value of the property.
        We affirm.


1
        Unless noted, all further statutory references are to the Penal Code.
                                              1
                   FACTUAL AND PROCEDURAL BACKGROUND
       According to the probation report, San Francisco police officers received a “theft
call” in June 2013 and went to the NFL Shop at Pier 39 (store). Witnesses reported
Rivas-Colon entered the store with his own bag and filled it with several items totaling
$1,437.74. The security alarm sensors activated when Rivas-Colon attempted to leave
the store, prompting Rivas-Colon to empty his bag and ask the staff not to call the police.
Police officers arrested Rivas-Colon.
       The People charged Rivas-Colon with second degree burglary (§ 459), grand theft
of personal property (§ 487, subd. (a)), and receiving stolen property (§ 496, subd. (a)).
In late 2013, Rivas-Colon pled guilty to second degree commercial burglary. At the plea
hearing, the defense stipulated to a factual basis for the plea contained in the police
report, which listed the value of the value of the property as $1,437.74. The court found
a factual basis for the plea and Rivas-Colon’s admission and placed Rivas-Colon on
probation. In December 2014, Rivas-Colon petitioned for resentencing pursuant to
sections 1170.18 and 459.5.
       In opposition, the People argued Rivas-Colon was ineligible for resentencing
because he stole $1,437.74 from the store. The opposition attached the police report and
a store receipt, both of which listed the value of the property. The police report noted
Rivas entered the store “with his own personal bag. [He] filled his bag with several
baseball hats. Once [he] was done with his bag, he grabbed two other bags that were for
sale and filled those up with more hats. By the time [he] was done, he had collected 38
baseball hats in the three bags, totaling $1,437.74 in . . . merchandise before tax.”
       At a hearing, the prosecutor urged the court to deny the resentencing petition
because the value of property Rivas-Colon stole exceeded $950. The prosecutor referred
to the police report and requested the court take judicial notice of the plea hearing
transcript. When the court asked, “[a]nything further on that issue,” defense counsel
responded, “[n]othing further.” The court denied the resentencing petition, concluding
the value of the property exceeded $950.


                                              2
                                       DISCUSSION
       In November 2014, California voters enacted Proposition 47, which “created a
new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently
serving’ a felony sentence for an offence that is now a misdemeanor under Proposition
47, may petition for a recall of that sentence and request resentencing in accordance with
the statutes that were added or amended by Proposition 47. [Citation.] 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).)” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092; People v.
Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
       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).) “[T]o qualify for resentencing
under the new shoplifting statute, the trial court must determine whether 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.
Contreras (2015) 237 Cal.App.4th 868, 892.)
                                              I.
            On His Petition for Resentencing, Rivas-Colon Had the Burden to
                 Prove the Value of the Property Did Not Exceed $950
       Rivas-Colon contends the prosecution had the burden to establish the value of the
property exceeded $950.2 According to Rivas-Colon, “without adequate proof that the


2
        The Attorney General does not argue Rivas-Colon forfeited this claim by failing to
raise it in the trial court. We have the authority to reach Rivas-Colon’s arguments
notwithstanding his failure to raise them below. “In light of the newness” of Proposition
47 when Rivas-Colon’s “petition was heard, as well as his contention defense counsel’s
failure to raise the issues constituted ineffective assistance of counsel, we review the
claims on the merits.” (People v. Losa (2014) 232 Cal.App.4th 789, 792, fn. 4 [declining
                                              3
value of the merchandise exceeded $950, [he] is presumptively entitled” to resentencing.
At least one court has rejected this argument. (People v. Sherow (2015) 239 Cal.App.4th
875 (Sherow).) In Sherow, the defendant petitioned for resentencing of his second degree
burglary convictions but did not offer any facts, evidence, or argument supporting the
petition. (Id. at p. 877.) In opposition, the prosecutor argued the defendant was ineligible
for resentencing because the loss exceeded $950; the trial court agreed and denied the
petition. (Ibid.) On appeal, the defendant claimed the record did “not show the loss as to
each count exceeded $950” and “the prosecution had the burden to prove [he] was not
eligible for resentencing.” (Id. at pp. 877-878.)
       The Fourth District Court of Appeal disagreed and held “a petitioner for
resentencing under Proposition 47 must establish his or her eligibility for such
resentencing,” (Sherow, supra, 239 Cal.App.4th at p. 878) and therefore must “show the
property loss . . . did not exceed $950 and thus fell within the new statutory definition of
shoplifting.” (Id. at p. 877.) The Sherow court noted the well-settled 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) and explained,
“‘[t]he petitioner will have the initial burden of establishing eligibility for resentencing
under section 1170.18(a): i.e., 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. If the crime under consideration is a theft
offense under sections 459.5, . . . or 496, the petitioner will have the burden of proving
the value of the property did not exceed $950.’” (Ibid., 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. 10, 2015] p. 40.)
       Under Sherow, Rivas-Colon had the burden to establish “the facts, upon which his
. . . eligibility [was] based[,]” i.e. that the value of the property he took from the store did


to apply forfeiture principles to the defendant’s burden of proof claim on a petition for
recall of sentence and resentencing under section 1170.126, also known as Proposition
36, the Three Strikes Reform Act of 2012].)
                                               4
not exceed $950. (Sherow, supra, 239 Cal.App.4th at p. 880.) And like the defendant in
Sherow, Rivas Colon did not satisfy that burden. His petition was completely “devoid of
any information about the offense[ ]” for which he sought resentencing and did not allege
the value of the property was under $950. (Id. at p. 878.) At the hearing on the petition,
Rivas-Colon offered no evidence — and no argument — demonstrating he was eligible
for resentencing. The court therefore properly denied Rivas-Colon’s resentencing
petition because he failed to satisfy his burden to prove the value of the property he took
from the store did not exceed $950. (§ 1170.18, subd. (b) [“the court shall determine
whether the petitioner satisfies the criteria in subdivision (a)”] and § 1170.18, subd. (g)
[court must designate the offense as a misdemeanor “[i]f the application satisfies the
criteria”]; Evid. Code, § 500 [“a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief . . . that he is
asserting”].)3
       We are not persuaded by Rivas-Colon’s claim that trial counsel was ineffective for
failing to “specify the amount of merchandise” in connection with his resentencing
petition. “To establish ineffective assistance of counsel, ‘“‘a defendant must first show
counsel’s performance was “deficient” because his “representation fell below an
objective standard of reasonableness . . . under prevailing professional norms.””’
[Citation.] ‘“[T]here is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’”’ [Citation.] ‘In the usual case, where
counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the
record, we will not find ineffective assistance of counsel on appeal unless there could be
no conceivable reason for counsel’s acts or omissions.’ [Citation.] For this reason,
claims of ineffective assistance of counsel ‘are ordinarily best raised and reviewed on
habeas corpus.’ [Citation.]’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1051.)


3
       Having reached this result, we need not consider Rivas-Colon’s argument that the
court erred by relying on the police report and store receipt when denying his
resentencing petition. We express no opinion on what evidence the trial court may
consider when ruling on a petition for resentencing brought pursuant to section 1170.18.
                                               5
       Rivas-Colon’s ineffective assistance of counsel claim fails because the record does
not reveal trial counsel’s reason for declining to specify the value of the property taken
from the store. (People v. Vines (2011) 51 Cal.4th 830, 876 [rejecting ineffective
assistance of counsel claim where record did not establish why defense counsel failed to
introduce impeachment evidence].) It is not — as Rivas-Colon contends — “impossible
to conceive of any legitimate reason” why trial counsel would not offer evidence of the
value of the items. Defense counsel had already stipulated to a factual basis for the plea
based on the police report; the police report and store receipt valued the items Rivas-
Colon stole at $1,437.34. Rivas-Colon’s claim that there is no explanation for counsel’s
failure to object “to proof offered by the prosecution and not demand the presence of
some live witnesses” to testify on the value of the stolen items is equally unpersuasive.
“An attorney may choose not to object for many reasons, and the failure to object rarely
establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495, 540;
People v. Frierson (1991) 53 Cal.3d 730, 747 [“mere failure to object to evidence . . .
seldom establishes counsel’s incompetence”].)
                                             II.
          On His Petition for Resentencing, Rivas-Colon Was Not Entitled to a
                        Jury Trial on the Value of the Property
       Rivas-Colon argues he was entitled to a jury trial on the value of the stolen
property because the “value of the property . . . goes to the very heart of the crime” of
shoplifting (§ 459.5) and is a “subject to a requirement of a jury trial” under Apprendi v.
New Jersey (2000) 530 U.S. 466, 490 (Apprendi) and Blakely v. Washington (2004) 542
U.S. 296, 303. We are not persuaded. Section 1170.18 is a “remedial statute[.]”
(Sherow, supra, 239 Cal.App.4th at p. 880.) “[T]he resentencing provisions of
Proposition 47 deal with persons who have already been proved guilty of their offenses
beyond a reasonable doubt.” (Ibid.) The question presented by Rivas-Colon’s
resentencing petition was not whether to increase the punishment for his offense, but
whether he was eligible for a potential reduction of his sentence. As a result, Rivas-
Colon had “no right to a jury determination of his eligibility for resentencing.” (Couzens

                                              6
& Bigelow, Sentencing California Crimes (The Rutter Group 2013) § 25:6, p. 25-59
(Couzens & Bigelow).)
       As Rivas-Colon concedes, numerous courts have rejected this argument in similar
contexts. For example, in Dillon v. United States (2010) 560 U.S. 817 (Dillon), the
United States Supreme Court held “a defendant’s Sixth Amendment right to have
essential facts found by a jury beyond a reasonable doubt do not apply to limits on
downward sentence modifications due to intervening laws.” (People v. Superior Court
(Kaulick) (2013) 215 Cal.App.4th 1279, 1304 (Kaulick), citing Dillon, supra, 560 U.S. at
pp. 828-829.) The Kaulick court reached a similar conclusion in the context of
resentencing petitions brought pursuant to Proposition 36. (Kaulick, supra, 215
Cal.App.4th at p. 1304-1305.) As the court explained, “[t]he retrospective part of the Act
is not constitutionally required, but an act of lenity on the part of the electorate. It does
not provide for wholesale resentencing of eligible petitioners. Instead, it provides for a
proceeding where the original sentence may be modified downward. Any facts found at
such a proceeding, such as dangerousness, do not implicate Sixth Amendment issues.
Thus, there is no constitutional requirement that the facts be established [to a jury]
beyond a reasonable doubt.”4 (Ibid.)
       People v. Bradford (2014) 227 Cal.App.4th 1322 (Bradford) is instructive. There,
the defendant petitioned to recall his sentence and for resentencing under Proposition 36.
The trial court denied the petition and the defendant appealed, claiming “that permitting

4
        “[T]he basic structure of Proposition 47 is strikingly similar to Proposition 36” and
“much of the appellate interpretation of Proposition 36 is likely relevant in the
interpretation of Proposition 47.” (Couzens & Bigelow, supra, § 25:1, p. 25-2.)
Numerous courts have adopted the reasoning from Kaulick, including: People v. Guilford
(2014) 228 Cal.App.4th 651, 663, fn. omitted [“denial of a recall petition” brought
pursuant to Proposition 36 “does not increase the mandatory minimum sentence for a
defendant’s crime”]; People v. Flores (2014) 227 Cal.App.4th 1070, 1075-1076 [agreeing
with Kaulick]; People v. Blakely (2014) 225 Cal.App.4th 1042, 1061 [“[a] finding an
inmate is not eligible for resentencing under [Proposition 36] does not increase or
aggravate that individual’s sentence”]; Couzens & Bigelow, supra, § 25:6, p. 25-59
[listing Proposition 36 cases concluding Apprendi “has no application due to the
retrospective nature of the petition for resentencing”].)
                                               7
the trial court to consider facts not previously adjudicated would violate his right to a jury
trial under the Apprendi cases.” (Id. at p. 1334.) The Bradford court disagreed and held:
“[r]educing the sentence of an individual like the current petitioner, who is serving a
valid sentence imposed more than a decade ago, is not constitutionally compelled; it
would be an act of lenity. . . . [S]ection 1170.126 merely provides a limited mechanism
within which the trial court may consider a reduction of the sentence below the original
term. Section 1170.126, like the statutory mechanism under federal law for a sentencing
reduction, is distinguishable from other sentencing proceedings, and the potential
reduction of the sentence is narrowly circumscribed by the statute. The result of a
proceeding under section 1170.126 may well be that the petitioner’s originally imposed,
lawful sentence remains undisturbed. Under the circumstances, the trial court’s
determination of facts that affect whether the defendant will be resentenced does not
implicate the right to a jury trial as described in the Apprendi cases.” (Id. at p. 1336.)
       Rivas-Colon’s attempt to distinguish Dillon and Kaulick is unavailing and his
reliance on Bradford is misplaced. We agree with the reasoning of these cases and
conclude Rivas-Colon does not have a Sixth Amendment right to a jury trial on the value
of the property on a petition for resentencing brought pursuant to section 1170.18.
                                       DISPOSITION
       The order denying Rivas-Colon’s petition for resentencing on his second degree
burglary conviction (§ 456) is affirmed.




                                              8
                                _________________________
                                Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.




A144390

                            9
Superior Court of the County of San Francisco, No. SCN222197, Kathleen Kelly, Judge.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Rene A.
Chacon, Supervising Deputy Attorney General, Juliet B. Haley, Deputy Attorney
General, for Plaintiff and Respondent.

Rodney Richard Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.




A144390

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