Filed 5/25/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A149575
v.
JEREMY SIMMS,                                        (Mendocino County
                                                     Super. Ct. No. CR14-75767)
        Defendant and Appellant.




        Jeremy Simms filed a partially successful Penal Code section 1170.181 petition to
have four prior felonies reduced to misdemeanors pursuant to Proposition 47, but failed
to obtain the requested reductions as to convictions for grand theft from the person and
for burglary. During eligibility proceedings at which Simms was not present, the trial
court found Simms was not eligible to have either of these convictions reduced to a
misdemeanor because he failed to show that the dollar amount of the stolen property in
either instance was $950 or less—the prerequisite for reduction under section 1170.18.
        Simms appealed this decision, contending (1) the trial court “misunderstood” the
evidence presented to it concerning the amounts of money taken, (2) he was denied his
constitutional and statutory rights to be present during the eligibility proceedings, and
(3) his counsel provided ineffective assistance. Although we reject Simms’s attack on the
trial court’s factual assessment of the record, we agree he was deprived of his right to be
present for the determination of eligibility. We shall therefore vacate the trial court’s


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


                                                1
ineligibility determination and remand for further proceedings. We do not reach his
claim of ineffective assistance.
                                   I.   BACKGROUND
        On January 22, 2014, Jeremy Simms entered Jesus Vega’s tire store and asked for
a used tire. Vega heard the cash drawer close as he walked to the back of the store and
returned to find Simms at the counter with his hand near the drawer. Simms then put
what Vega believed to be money into his pocket, though Vega did not actually see Simms
take any money. Vega accused Simms of stealing money from the cash drawer and
threatened to call the police if he did not return it. Simms denied taking any money and
walked to his car. As Simms got into his car, Vega tried to stop him from leaving by
reaching to take his keys, but Simms pulled out pepper spray, sprayed Vega, and drove
away.
        After Simms left, Vega inspected the store’s surveillance footage from the
previous day (January 21) and saw footage of Simms entering the store and taking money
out of the register that day as well. The video also showed Simms entering the store a
second time on January 21 without taking anything.
        A preliminary hearing was held on March 5, 2014, at which Vega, during a
convoluted line of questioning, initially stated roughly $1,500 was taken from the cash
drawer on both January 21 and 22. But he went on to say he told the investigating
officers approximately $985 was missing on the 22nd and that he did not notice money
was missing on the 21st because he did not have a chance to inventory the cash drawer
until the night of the 22nd. He further stated he did check the drawer on the 21st and
noticed that some money was missing, but did not inspect it closely enough to see exactly
how much was missing. Vega concluded by saying he was not sure how much money
was missing on the 21st or the 22nd because he did not tally up what was missing until
the 22nd.
        Based on these events at Vega’s tire store on January 21 and 22, the People filed
an information charging Simms with second degree robbery (§§ 211, 212.5, subd. (c))
(count one) (the January 22 incident) and two counts of second degree burglary (§§ 459,


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460, subd. (b)) (counts two & three) (both incidents on January 21). The information
alleged that Simms used a deadly or dangerous weapon—pepper spray—in the
commission of the robbery (§ 12022, subd. (b)(1)). The information further alleged that
Simms had a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12) and that he had
served six prior prison terms (§ 667.5, subd. (b)).
          As part of a plea bargain, the prosecutor moved to amend the robbery charge to
grand theft from the person (§ 487, subd. (c)). Simms pleaded no contest to the amended
charge as well as to the two burglary charges. He also admitted the prior strike and prior
prison term allegations. As part of the bargain, Simms also pleaded no contest to
receiving stolen property (§ 496) and admitted a prior strike conviction allegation in a
second case; in a third case, Simms pleaded no contest to transportation of
methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted the allegations
that he was released on his own recognizance at the time of the offense (§ 12022.1) and
that he had a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (c)) and a prior
strike conviction. On these agreed terms, the trial court granted the prosecutor’s motion
to dismiss the remaining counts and allegations in all three cases, and accepted the pleas.
As part of this negotiated disposition, the court sentenced Simms to a term of 23 years in
prison.
          Following his conviction and sentence, Simms filed a petition under section
1170.18, subdivision (a), without specifying the offenses for which he sought relief. The
petition, which was purportedly filed “In Propria Persona” but signed “Linda Thompson
for Jeremy Simms” stated that “Petitioner waives his/her right to be personally present
for hearing on this petition in the event (1) the DA is not objecting, and (2) the Court is
willing to grant the relief being requested.” On the People’s request for an evidentiary
hearing, the court eventually held two hearings, on August 19 and September 9, 2016.
Simms attended neither proceeding. At the first hearing, Simms’s counsel argued the
burglary convictions from January 21 should be reduced since there was no evidence
showing the amount taken exceeded $950.



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       On September 9, 2016, the trial court granted the petition as to one of the burglary
convictions arising from the January 21 incident—the one where the video showed
Simms took nothing from the cash register—and the receiving stolen property conviction
arising from a different case. The court denied the petition as to the other burglary
conviction from the 21st and the grand theft conviction from the 22nd. The court
imposed six-month concurrent terms on the counts that were resentenced to
misdemeanors, reducing Simms’s total sentence to 20 years, 4 months.
       Simms filed a timely notice of appeal from the partial denial of his section
1170.18 petition.
                                    II.   DISCUSSION
       A. Procedural Setting and Applicable Standards of Review
       In November 2014, California voters enacted Proposition 47, the Safe
Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.)
Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the
offenses were committed by otherwise ineligible defendants. (Id. at p. 1091.) At issue in
this case is one of the principal implementing provisions in Proposition 47, section
1170.18, which permits “a person ‘currently serving’ a felony sentence for an offense that
is now a misdemeanor under Proposition 47 [to] petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
Proposition 47.” (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.)
       For a defendant who is still serving his sentence, a section 1170.18 proceeding
begins, as it did here, with the filing of a petition for recall and resentencing under
subdivision (a). (See People v. Sherow (2015) 239 Cal.App.4th 875, 879.) In the two-
step procedure that follows (see People v. Bush (2016) 245 Cal.App.4th 992, 1001
(Bush)), the court initially undertakes a screening determination focused on whether the
petitioner has made out a prima facie case for relief. (People v. Sledge (2017) 7
Cal.App.5th 1089, 1094 (Sledge).) At the screening stage, the petitioner bears the burden
of proving the eligibility criteria set forth in subdivision (a). (People v. Page (2017) 3
Cal.5th 1175, 1188 (Page).) If the court determines that he has done so, the proceeding


                                              4
moves to the second step at which the court must recall the challenged sentence and
resentence the petitioner to a misdemeanor, unless, in its discretion, it “determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(§ 1170.18, subd. (b); see People v. Jefferson (2016) 1 Cal.App.5th 235, 239–240
(Jefferson).)
       In many cases, the threshold issue of eligibility for relief under section 1170.18,
subdivision (a) may be determined as a matter of law from the uncontested allegations of
the petition or from the record of conviction. (Page, supra, 3 Cal.5th at p. 1189; People
v. Romanowski (2017) 2 Cal.5th 903, 916 (Romanowski).) While the court has no
obligation to hold an evidentiary hearing where the petitioner’s eligibility or ineligibility
for relief is evident as a matter of law, “ ‘[a]n evidentiary hearing is required if . . . there
is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s
entitlement to relief depends on the resolution of an issue of fact.’ ” (Sledge, supra, 7
Cal.App.5th at p. 1095.) The test is whether “ ‘after considering the verified petition, the
return, any denial, any affidavits or declarations under penalty of perjury, and matters of
which judicial notice may be taken, the court finds there is a reasonable likelihood that
the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on
the resolution of an issue of fact.’ ” (Romanowski, supra, 2 Cal.5th at p. 916.)
       A contested Proposition 47 eligibility hearing is a “type of sentencing proceeding”
(Sledge, supra, 7 Cal.App.5th at p. 1095) conducted by the court, sitting without a jury.
The burden of proof is preponderance of the evidence (Evid. Code, § 115; Bush, supra,
245 Cal.App.4th at p. 1001), and, while the record of conviction may be centrally
relevant, the source of the evidence is not necessarily limited to the record of conviction.
(Sledge, supra, 7 Cal.App.5th at p. 1095.) Even though, by its nature, an evidentiary
hearing to determine Proposition 47 eligibility resolves disputed issues of fact, there is no
right to jury trial. Because Proposition 47 does nothing more than give inmates serving
otherwise final sentences the benefit of ameliorative changes to applicable sentencing
laws, there is no Sixth Amendment entitlement to a jury in these proceedings. (Dillon v.
United States (2010) 560 U.S. 817, 828–829; People v. Rivas-Colon (2015) 241


                                                5
Cal.App.4th 444, 451–452 [no right to jury trial on value of property on § 1170.18
resentencing petition]; cf. Jefferson, supra, 1 Cal.App.5th at p. 240 [no right to jury trial
at second step of Proposition 47 proceeding where court makes discretionary
determination of dangerousness].)
       The applicable standard of review varies by issue. The order denying Simms’s
eligibility for Proposition 47 relief “ ‘ “is presumed correct; all intendments are indulged
in to support it on matters as to which the record is silent, and error must be affirmatively
shown.” ’ [Citation.] In addition, we must ‘ “view the record in the light most favorable
to the trial court’s ruling.” ’ ” (People v. Johnson (2016) 1 Cal.App.5th 953, 960.)
Where we are called upon to address “ ‘the interpretation of a statute enacted as part of a
voter initiative, the issue . . . is a legal one, which we review de novo.’ ” (Sledge, supra,
7 Cal. App.5th at p. 1095.) But “[w]here the trial court applies disputed facts to such a
statute, we review the factual findings for substantial evidence and the application of
those facts to the statute de novo.” (Ibid.) This case illustrates another facet of these
rules. With regard to Simms’s claim of deprivation of his right to be present for the
eligibility proceedings, our review is de novo, since the trial court’s decision simply
“entails a measurement of the facts against the law.” (People v. Waidla (2000) 22 Cal.4th
690, 741.)
       B. Simms’s Claim That the Trial Court “Misunderstood” the Evidence

       Because the uncontested information disclosed by the petition was insufficient to
determine eligibility for resentencing, the People requested an evidentiary hearing. The
trial court then held two hearings—in Simms’s absence both times—to consider that
issue. The focus of the evidence at both proceedings was the preliminary hearing
transcript, and specifically, Vega’s testimony as revealed in the transcript. The linchpin
issue was whether Simms stole more than $950 from the tire store on both January 21st
and 22nd.
       According to Simms, Vega’s preliminary hearing testimony cannot fairly be read
to support a finding that more than $950 was taken on both dates. Simms points out that
(1) Vega testified to being unaware any money was missing on the 21st because he did

                                              6
not have a chance to inventory the money and was not sure if there was anything missing
until he tallied the money in his cash drawer on the 22nd; (2) Vega admitted to the
investigating officers that approximately $985 was missing from both the 21st and 22nd
collectively; and (3) the only testimony Vega gave regarding how much money was taken
on the 21st was in response to an ambiguous question asking how much money was taken
“the day before January 22nd.” In response to that question, Vega replied “about 1,500,
roughly,” which Simms claims, when read in context, must have meant the money taken
on the 22nd. The Attorney General counters that Vega testified in direct response to a
question about the amount taken on the 21st that $1,500 was taken, and at another point,
in direct response to a different question about the 22nd, that $1,500 was taken. If there
was ambiguity in any of these questions and thus the meaning of the answers, the
Attorney General argues, Simms should have offered evidence to clarify the record.
       With the parties’ competing positions framed in this way, Simms insists the trial
court “misunderstood” Vega’s testimony about $1,500 having been taken “the day before
the 22nd” and overlooked the fact it was mathematically “impossible” for him to have
taken more than $950 on both days. Underlying this attack on the trial court’s purported
failure to appreciate the import of the evidence is the premise that a total of $1,500,
collectively, was taken on both days. We agree that may be one interpretation of the
record, but it is not the only interpretation. Although Vega’s testimony that $1,500 was
taken on each day does seem questionable when read in the context of his other answers
about what was taken, a trier of fact is required to reject evidence only “ ‘when it is
inherently improbable or incredible, i.e., “ ‘unbelievable per se,’ ” physically impossible
or “ ‘wholly unacceptable to reasonable minds.’ ” ’ ” (People v. Ennis (2010) 190
Cal.App.4th 721, 729.)
       Whether Vega’s testimony may be construed as the Attorney General construes it
is perhaps debatable, but the testimony, when read to support the view that $1,500 was
taken on both days, is not so inherently impossible or incredible as to be unworthy of
credence. At worst for the People it is inconclusive. In the end, it is not for us on appeal
to assess the meaning and weight to be given the testimony; what to make of an equivocal


                                              7
record in these circumstances was within the province of the trial court. Applying the
substantial evidence test and giving the trial court’s ineligibility ruling a presumption of
correctness, as we must, it appears to us the court decided the critical factual issue
governing eligibility—how much, exactly, was taken on each day—based on the burden
of proof. Because that issue was not a focus of attention at the preliminary hearing and
certainly was not a required element of proof to bind Simms over for trial, we cannot
second-guess the court’s decision to resolve doubts against Simms as the party with the
burden of proof. Substantial evidence supports its ruling.
       C. Simms’s Claim That He Was Denied His Right to Be Present At the
          Hearings At Which His Eligibility to Be Resentenced Was Determined

       “Broadly stated, a criminal defendant has a right to be personally present at certain
pretrial proceedings and at trial under various provisions of law, including the
confrontation clause of the Sixth Amendment to the United States Constitution, the due
process clause of the Fourteenth Amendment to the United States Constitution, section 15
of article I of the California Constitution, and sections 977 and 1043.” (People v. Cole
(2004) 33 Cal.4th 1158, 1230.) That right extends to sentencing and resentencing
proceedings, including resentencing under section 1170.18. (People v. Fedalizo (2016)
246 Cal.App.4th 98, 110 (Fedalizo).) A criminal defendant’s right to attend critical
proceedings against him is subject to recognized limitations. “[I]t is well established[,]”
for example, that there is no such “constitutional or statutory right to be present to
address purely legal questions or where [the defendant’s] ‘presence would not contribute
to the fairness of the proceeding.’ ” (Id. at p. 109.) And “[a]s a matter of both federal
and state constitutional law, . . . a defendant may validly waive his or her right to be
present during a critical stage of the trial, provided the waiver is knowing, intelligent, and
voluntary.” (People v. Cunningham (2015) 61 Cal.4th 609, 633.)
       It cannot be said that the issues decided at the eligibility hearings on Simms’s
Proposition 47 petition were purely legal. “ ‘The trial court’s decision on a section
1170.18 petition is inherently factual, requiring the trial court to determine whether the
defendant meets the statutory criteria for relief.” (People v. Hall (2016) 247 Cal.App.4th


                                              8
1255, 1263 (Hall).) Nor did Simms waive his right to attend. Through his appointed
counsel, Thompson, Simms did consent to a limited waiver of his right to be present, but
the waiver was applicable only if the proceeding was uncontested and only if the court
was willing to grant all requested relief. Neither of those conditions applies here.
Because determination of whether “ ‘the value of the property [Simms] stole disqualifies
him from resentencing under [section 1170.18] . . . is a factual finding’ ” (id. at p. 1263)
that was made here in contested proceedings, and because he did not waive his right to
attend those proceedings, we must conclude his constitutional and statutory right to be
present was violated.
       In response to Simms’s argument on this point, the People rely heavily on
Fedalizo, supra, 246 Cal.App.4th at page 110, where a divided Second District, Division
Seven, panel held that the Proposition 47 eligibility hearing at issue there was merely a
“prelude to resentencing.” Fedalizo, in our view, is distinguishable. First, in that case it
was undisputed the petitioner’s appointed counsel had “waived defendant’s appearance,”
without qualification or limitation. (Id. at pp. 103, 105.) Second, because the petitioner
there raised a right-to-be-present argument on appeal for the first time in his reply, the
court held the issue had been forfeited. (Id. at p. 109.)
       The Fedalizo court did, to be sure, address the merits of petitioner Fedalizo’s
right-to-be-present argument—and reject it—despite having held the right waived and the
issue forfeited, but this alternative holding must be read in light of the specific procedural
posture presented there. As the court explained, “[w]hen a defendant files a petition to
recall a sentence under Proposition 47, the trial court must first decide the defendant’s
eligibility for the requested relief (i.e., whether the crime qualifies for reduction to a
misdemeanor and whether the defendant previously has suffered any disqualifying
convictions). (§ 1170.18, subds. (a), (b), (i).) This decision typically can be made
without a hearing because eligibility is often obvious on the incontrovertible written
record.” (Fedalizo, supra, 246 Cal.App.4th at p. 109.) Thus, consistent with well-
recognized limits to the right of a criminal defendant to be present at critical proceedings



                                               9
against him, the court saw no right to attend an uncontested eligibility proceeding
involving purely legal issues.
       It is unquestionably true that in some cases the issue of eligibility for Proposition
47 relief can be and will be determined as a matter of law, without any factual contest.
(Hall, supra, 247 Cal.App.4th at p. 1263.) That point is firmly established in the case law
expounding on section 1170.18, subdivision (a), procedure. (See Page, supra, 3 Cal.5th
at p. 1189; Romanowski, supra, 2 Cal.5th at p. 916.) Where the issue of eligibility is
decided on an unopposed basis, we have no quarrel with the idea that “a represented
defendant has no constitutional or statutory right to be present to address purely legal
questions or where his or her ‘presence would not contribute to the fairness of the
proceeding.’ ” (Fedalizo, supra, 246 Cal.App.4th at p. 109, citing People v. Perry (2006)
38 Cal.4th 302, 312 [“a defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the outcome of the case”].) But
where, as in this case, a factual contest bearing on eligibility for Proposition 47 relief
requires that an evidentiary hearing be held, we conclude the petitioning defendant has a
right to be present, absent a valid waiver.
       Because the right to be present at a contested section 1170.18, subdivision (a),
eligibility proceeding is of federal constitutional dimension, its violation may be deemed
harmless only if we can conclude beyond a reasonable doubt that the deprivation did not
affect the outcome of the proceeding. (Chapman v. California (1967) 386 U.S. 18, 24.)
Here, to the extent Vega’s preliminary hearing testimony was unclear, the Attorney
General argues it was incumbent on Simms to provide clarification. The point is well
taken so far as it goes, but it also underscores the fairness problem we see on this record.
Simms was not there to speak up. Unlike Fedalizo, where the issue of eligibility for
Proposition 47 relief was decided as a matter of law on an uncontested basis, in this case
the eligibility issue turned on disputed issues of fact about which Simms—as a
participant in the events in question—may well have had something to say. The trial
court may, or may not, have chosen to believe what Simms might have said, if he said



                                              10
anything, but we cannot conclude beyond a reasonable doubt that his presence at the
hearing would not have affected the outcome.
                                      III.   DISPOSITION
       We vacate the trial court’s determination that Simms is ineligible for Proposition
47 relief on his burglary and grand theft from a person convictions and remand for a
further eligibility hearing on his petition for recall and resentencing. Simms must be
given the opportunity to be present at that hearing.2




       2
         In addition to this appeal, Simms filed a habeas corpus petition (No. A152411)
claiming ineffective assistance of counsel. In light of our disposition of the appeal, we
shall dismiss the habeas petition as moot.


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                                               _________________________
                                               Streeter, Acting P.J.


We concur:


_________________________
Reardon, J.


_________________________
Smith, J.*




*
 Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

A149575/People v. Simms

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A149575/People v. Simms


Trial court:        Mendocino County Superior Court

Trial judge:        Hon. John Behnke

Counsel:

             First District Appellate Project, Jonathan Soglin, Executive Director, and
Richard Such, Staff Attorney, under appointment by the Court of Appeal for Defendant
and Appellant.

              Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Seth K. Schalit, Supervising Deputy Attorney General, Victoria Ratnikova, Deputy
Attorney General, for Plaintiff and Respondent.




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