Filed 9/26/16 P. v. Owens 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063902

v.                                                                      (Super.Ct.No. RIF1301686)

PHILIP COLE OWENS,                                                      OPINION

         Defendant and Appellant.



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

Reversed and remanded with directions.

         John L. Dodd, 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 V.

Hawley, Samantha L. Begovich, and Elizabeth M. Kuchar, Deputy Attorneys General,

for Plaintiff and Respondent.



                                                             1
       In 2013, defendant and appellant Philip Cole Owens pled guilty to two felony

second degree burglaries of Kohl’s and one felony second degree burglary of Sears.

(Pen. Code,1 § 459.) Subsequently, California voters enacted Proposition 47, the Safe

Neighborhoods and Schools Act, which, among other things, established a procedure for

specified classes of offenders to have their felony convictions reduced to misdemeanors

and be resentenced accordingly. (§ 1170.18.) Defendant filed a petition for resentencing,

pursuant to section 1170.18. The trial court found him ineligible for relief and denied the

petition. The minute order states, “Amount of loss was $3159.95 - exceeds $950.”

Defendant appeals, arguing there was insufficient evidence to demonstrate that any one

conviction involved the theft of property worth more than $950. We agree and reverse

the court’s order with directions to determine whether defendant satisfies the criteria for

resentencing. (§ 1170.18, subd. (b).)

                    I. PROCEDURAL BACKGROUND AND FACTS

       On March 4, 2013, the Riverside County District Attorney charged defendant with

five counts of felony second degree burglary. (§ 459.) In four of those counts, the victim

was Kohl’s (counts 1, 2, 4, 5); in the other, it was Sears (count 3). Defendant pled guilty

to three of the five counts (the Sears burglary and two of the Kohl’s burglaries) and

admitted to five prison priors. The court dismissed the remaining two burglaries against

Kohl’s (counts 1, 4). Defendant entered Harvey2 waivers on the dismissed counts,


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

       2   People v. Harvey (1979) 25 Cal.3d 754, 758.


                                              2
allowing the court to impose restitution “attributable to [any] count dismissed pursuant to

a plea bargain.” (§ 1192.3, subd. (b).)

       On March 20, 2013, the court sentenced defendant to six years in state prison. At

the sentencing hearing, a Kohl’s representative requested restitution in the amount of

$3,159.95. There was no discussion of how much of that total represented the value of

the stolen property for any one of the four separate burglary counts where Kohl’s was the

victim. The People’s sentencing memorandum also requested defendant pay $3,159.95 to

Kohl’s. Likewise, the memorandum did not discuss how this total related to the value of

the stolen property in the four separate counts. The court ordered defendant pay

$3,159.95 in restitution to Kohl’s.

       On February 20, 2015, Owens filed a petition for resentencing on his burglary

convictions under section 1170.18, subdivision (a). His petition states he “believes the

value of the check or property does not exceed $950.” The People responded by filling

out a form and checking the box stating that defendant was “entitled to resentencing,” as

well as the box waiving their presence at the resentencing hearing and “agree[ing] the

court may re-sentence.”

       On May 5, 2015, the court issued an order denying the petition. The handwriting

on the order denying the petition noted, “Amt. of loss was $3,159.95 - Exceeds $950.00.

Not eligible.” Owens appealed.3


       3  Defendant’s notice of appeal contained a request for a certificate of probable
cause, in which he declared: “Although I accepted a plea bargain on this case, the fact of
the matter is that this was actually several petty thefts combined. I admit to stealing a
                                                                [footnote continued on next page]


                                             3
                                          II. DISCUSSION

        “Proposition 47 makes certain drug- and theft-related offenses misdemeanors,

unless the offenses were committed by certain ineligible defendants. These offenses had

previously been designated as either felonies or wobblers (crimes that can be punished as

either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085,

1091.) “Proposition 47 also created a new resentencing provision: section 1170.18.

Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense 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.” (Id. at p. 1092)

        Proposition 47 added section 459.5 (creating shoplifting as a crime). Section

459.5, subdivision (a), defines shoplifting, 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) . . . .” The newly enacted statute also provides that the act of

shoplifting “shall be charged as shoplifting” unless the defendant has a disqualifying

prior conviction (i.e., a conviction for an offense listed in § 667, subd. (e)(2)(C)) or a sex

offense requiring registration pursuant to section 290, subdivision (c), and a defendant

may not be charged with burglary or theft of the same property. (§ 459.5, subds. (a), (b).)


[footnote continued from previous page]
[footnote continued from previous page]
few vacu[u]ms from Khols [sic]. However, none of the vacu[u]ms were valued at over
$700.00.”


                                                4
       It is a 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.’” [Citation.]” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow);

see People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449; see also 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”].) Consistent with this principle,

“a petitioner for resentencing under Proposition 47 must establish his or her eligibility for

such resentencing.” (Sherow, supra, at p. 878.) Where, as in this case, the critical factual

issue is the value of stolen property, defendant must “show the property loss . . . did not

exceed $950.” (Id. at p. 877.) Likewise, he must show that the commercial

establishment was open at the time of the burglary.

       Defendant’s petition states his belief that the “value of the . . . property does not

exceed $950.” The People waived their presence at the resentencing hearing and agreed

that defendant was entitled to resentencing. The trial court reviewed the record and

found that the amount of loss, $3,159.95, exceeded the statutory limit of $950.

Defendant contends there is insufficient evidence to support this finding. He argues the

court relied on the restitution order and improperly aggregated the convictions to reach its

ruling on value. We agree.

       We review the trial court’s ruling on a Proposition 47 petition for abuse of

discretion. However, we apply the substantial evidence standard of review to the facts or

evidence supporting the court’s finding. (People v. Semaan (2007) 42 Cal.4th 79, 87.)

This standard requires us to determine whether the record contains evidence that is


                                                5
“reasonable, credible, and of solid value” to support the trial court’s finding. (People v.

Hovarter (2008) 44 Cal.4th 983, 996-997; see People v. Pearson (1969) 70 Cal.2d 218,

221, fn. 1 [appellate review is confined to the record].) “[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.)

       Defendant sought resentencing on multiple convictions. Under section 459.5,

subdivision (a), defendant would be entitled to resentencing for misdemeanor shoplifting

on his three felony burglary convictions if the merchandise he stole from Kohl’s and

Sears in each offense did not exceed $950 in value and if he committed each offense

while the stores were open for business. In this case, the trial court found defendant to be

ineligible for resentencing on his three convictions because the loss was $3,159.95.

However, there were no witnesses and the only evidence the court considered was an

order requiring defendant to pay $3,159.95 in restitution to Kohl’s. The fact that the

court ordered defendant to pay a lump sum of $3,159.95 in restitution for five

commercial burglaries does not supply substantial evidence that any one of the three

burglary convictions involved theft of property exceeding $950.

       First, only two of the three convictions involved burglaries of Kohl’s. Defendant’s

third conviction was for burglary of Sears, and therefore the Kohl’s restitution order was

irrelevant to that conviction. Because there is no evidence in the record relating to the

value of the merchandise defendant stole from Sears, we cannot uphold the court’s ruling

that the Sears conviction involved a loss exceeding $950.


                                              6
       Second, when a petitioner seeks resentencing on multiple convictions, the court

must consider the amount of loss in each conviction separately and cannot deny

resentencing based on an aggregated amount. (See People v. Hoffman (2015) 241

Cal.App.4th 1304, 1309-1310 [court may not aggregate the amounts of the forged checks

from separate forgery convictions to hold defendant ineligible for resentencing].)

Applying that rule here, while the $3,159.95 amount is relevant to the two Kohl’s

burglary convictions, there is no evidence in the record indicating how that amount

relates to the individual counts. Because defendant was also charged with two other

burglaries of Kohl’s and because he entered a Harvey waiver allowing the court to

consider those counts for sentencing purposes, the $3,159.95 amount may represent the

total loss from all four burglaries and, consequently, may relate to those four counts in

various ways. For example, defendant may have stolen exactly $790 in merchandise on

each occasion; or, he may have stolen $50 worth of merchandise on three occasions and

$3,009.95 on the fourth. The possible scenarios are numerous.

       While it is certainly possible defendant stole more than $950 worth of

merchandise in one or both of Kohl’s burglaries conviction, there is no evidence

suggesting any sort of monetary breakdown among the four charged Kohl’s burglaries.

Without any evidence of how much of the total sum of $3,159.95 relates to defendant’s

two Kohl’s convictions, we cannot conclude there is substantial evidence to support a

finding that either conviction involved an amount exceeding $950. We therefore

conclude there is insufficient evidence to support a finding that defendant’s three

burglary convictions involved losses exceeding $950.


                                             7
       In ruling on Proposition 47 petitions, the trial court has discretion to allow a

petitioner to amend a petition or submit additional evidence, to resolve a petition by

looking to court records, and to order a hearing. (§ 1170.18.) Here, the court concluded

the restitution order was sufficient to determine defendant’s eligibility. Because this

conclusion was incorrect, we leave it to the trial court to determine whether other

evidence in the record supports an eligibility determination, whether to allow the parties

to submit additional evidence, and whether to hold a hearing to assist the court in making

the factual findings necessary to determine whether defendant is eligible.4 Accordingly,

we return the matter to the trial court for further development of the factual record. (See

People v. Contreras (2015) 237 Cal.App.4th 868, 892 [“Under the resentencing

procedure in section 1170.18, [the value of stolen property] is a factual finding that must

be made by the trial court in the first instance.”].)5


       4  An alternative to this approach would be for us to review the record, and make a
ruling. While defendant’s petition alleges that he “believes the value of the check or
property does not exceed $950,” defendant did not submit supporting evidence to prove
that assertion, or to show he committed the burglary while the establishment was open
during regular business hours. In the absence of supporting evidence, defendant’s
petition could be properly denied; defendant failed to show his felony convictions would
have been misdemeanors had Proposition 47 been in effect at the time of his conviction.
(Sherow, supra, 239 Cal.App.4th at p. 880; People v. Perkins (2016) 244 Cal.App.4th
129, 135-137.)

       5  The concurrence believes that “this opinion satisfies several of our publication
criteria and should be certified for publication.”(Conc. opn., p. 13.) We disagree. (Cal.
Rules of Court, rule 8.1105(c).) We also part ways with some aspects of the
concurrence’s analysis though we agree on the disposition. We decline, however, to
engage in any further discussion of these issues. The majority’s opinion addresses all the
issues necessary for the disposition of this appeal. Any further comment would be
dictum. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 474-475, pp. 532-533
                                                                  [footnote continued on next page]


                                               8
                                               III. DISPOSITION

        We reverse the order denying defendant’s petition for resentencing and remand the

matter for proceedings consistent with this opinion.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                  HOLLENHORST
                                                                           Acting P. J.
I concur:

        MILLER
                                          J.




[footnote continued from previous page]
[footnote continued from previous page]
[dictum is a statement that expresses a court’s view on an issue; however, it is not
necessary to the decision].) Additional discussion would, in our view, provide no useful
guidance for future litigants, but only further muddy the already murky waters of
Proposition 47 jurisprudence.


                                                   9
       Slough, J., Concurring.

       I agree with the majority’s decision to reverse the denial of Owens’s Penal Code

section 1170.18 petition on the grounds insufficient evidence supported the value finding

and the trial court improperly aggregated the amounts of loss from multiple thefts. I

write separately because the majority leaves wholly unaddressed two major issues the

parties raise in this appeal—the sufficiency of Owens’s petition and the import of the

People’s concession that he is entitled to resentencing. These are recurring issues and

merit our analysis.

       In late 2012 and early 2013, Owens committed a string of department store thefts.

The appellate record reflects that he stole vacuum cleaners, each worth less than $700,

from Sears and Kohl’s. Owens pled guilty to three felony second degree burglaries, but

after the voters passed Proposition 47 he petitioned the court to reduce those burglaries to

shoplifting offenses under section 459.5.1 In their response to his petition, the People

affirmatively represented to the trial court Owens was entitled to resentencing and waived

their presence at the resentencing hearing.

       Unsurprisingly, the focus of the briefs, our tentative opinion, and oral argument

was the effect of the People’s representations to the trial court in their response form. In

their brief, the People urged us to affirm the trial court’s erroneous determination of

eligibility on the sole ground that Owens’s petition was insufficient. They argued Owens

       1   Unlabeled statutory citations refer to the Penal Code.


                                              1
failed to satisfy the prima facie burden articulated in People v. Perkins (2016) 244

Cal.App.4th 129 (Perkins) because his petition contained no evidence regarding the value

of the stolen merchandise. Owens responded that the People had forfeited any challenge

to the sufficiency of his petition by failing to raise the issue below and instead

representing to the trial court that he was entitled to relief.

       At oral argument, the People agreed their concession had discharged Owens’s

prima facie burden and they withdrew their argument that we must affirm the court’s

order based on the lack of evidence in the petition. Asked by this court at oral argument

if they viewed the representations in their response form as a concession of Owens’s

eligibility, counsel for the People responded, “Yes, Your Honor, I do in this case.”

Counsel added, “I do see pretty clearly that the district attorney’s representation by

checking both of those boxes makes it pretty clear that they were conceding that appellant

met the elements that are required to establish Proposition 47 relief.”

       Despite this procedural history and the parties’ agreement with the tentative, my

colleagues have opted to file a new majority opinion and abstain from addressing the

effect of the People’s response form. This is unfortunate because we have seen a number

of cases where the People concede eligibility in the trial court only to contest the

sufficiency of the petition for the first time on appeal. Because eligibility concessions are

a recurring issue and California’s courts will face an enormous number of Proposition 47

cases over the next few years, I believe it is imperative to provide guidance to the parties

and the trial court.



                                                2
       For reasons I explain post, I would conclude the pleadings, taken together,

discharged Owens’s prima facie burden and thereby required the court to consider the

petition’s merits. Even without the concession, I would conclude Owens’s failure to

attach evidence to his petition is not fatal because the record demonstrates a reasonable

possibility he could amend his petition to cure any deficiency.

       A.     The People’s Concession Discharged Owens’s Prima Facie Burden

       A trial court need not consider the merits of a Proposition 47 petition unless the

petitioner has made a prima facie showing of eligibility. (People v. Sherow (2015) 239

Cal.App.4th 875 (Sherow); Perkins, supra, 244 Cal.App.4th 129.) In Perkins, this court

held that to satisfy this initial burden, the petitioner must attach to his petition “some

evidence” of eligibility. (Perkins, supra, at p. 137.) Owens filed a petition alleging the

amount of loss in his burglaries did not exceed $950. The petition took the form of a

declaration under penalty of perjury that appears to be signed by Owens’s attorney. The

People responded in a filing signed by a deputy district attorney that Owens is entitled to

resentencing. They waived their right to be present at the resentencing hearing and

affirmatively agreed the court may resentence Owens. This case raises the question of

how the People’s concession that a petitioner is entitled to relief affects the petitioner’s

initial burden. Although both parties briefed this issue on appeal, the majority opinion

does not address it.

       It is a basic, well-settled principle that a party’s duty to set out a prima facie case

may be discharged by the opposing party’s concession. As our high court long ago



                                               3
explained, “when the [party who carries the burden] has proved or the [opposing party]

has conceded” an element of a claim “a prima facie case . . . is thereby made, which

discharges the burden of proof.” (Graham v. Larimer (1890) 83 Cal. 173, 177-178,

italics added; accord, Wellpoint Health Networks, Inc. v. Superior Court (1997) 59

Cal.App.4th 110, 123 [the opposing party’s “concession established the facts necessary to

support a prima facie claim of privilege . . . and passed the burden to [the party opposing

privilege]”].) The function of pleadings is to aid the court in determining which factual

issues are in dispute. (People v. Duvall (1995) 9 Cal.4th 464, 480 (Duvall) [habeas

pleadings “fulfill [the] function of narrowing the facts and issues to those that are truly in

dispute”].) “The initial screening of the petition for resentencing is similar to the initial

screening of a petition for writ of habeas corpus. California Rules of Court, [r]ule

4.551(f) provides that ‘[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.’” (Couzens & Bigelow, Proposition

47: “The Safe Neighborhoods and Schools Act” (May 2016) p. 39, at

<http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 31, 2016].)

       The pleadings in this case, taken together, conveyed to the trial court there were no

disputed material facts regarding Owens’s eligibility. The petition declared the burglaries

did not involve losses exceeding $950 and the People agreed those burglaries should be

reduced to shoplifting offenses. I would apply the above pleading principles to section




                                               4
1170.18 petitions and hold that the People’s concession to Owens’s petition discharged

the prima facie burden thereby requiring consideration of his petition on the merits.

       The majority’s refusal to address the effect of the People’s concession on the

prima facie burden is perplexing because my colleagues and I recently held in a different

case that the People’s concession satisfied the petitioner’s ultimate burden on a section

1170.18 petition. In People v. Mutter (2016) 1 Cal.App.5th 429, we concluded the

People’s agreement that the amount of loss was less than $950 satisfied the petitioner’s

ultimate burden to prove his forgery conviction qualified for resentencing under

Proposition 47. (Id. at p. 436.) In reversing the denial of Mutter’s petition, we explained:

“There was no evidence provided at the trial court that the amount of counterfeit currency

was less than $950. [Citation.] However, the prosecutor argued the value was, at most,

$700. Because the prosecutor affirmatively agreed the value of the counterfeit bills was

less than $950, thus reflecting there was no issue as to value in the trial court, we will

find the value element has been satisfied.” (Ibid.) As support for the principle that a

finding of fact may be based on a party’s concession, we cited People v. Peters (1950) 96

Cal.App.2d 671. In Peters, the First Appellate District explained in the context of a

homicide trial, “[i]t is elementary that in a homicide case the fact that the deceased met

his death through the act or agency of the defendant must be proved. . . . [H]ere, the

cause of death was not proved by evidence. However, the cause of death is a fact, which,

like every other fact, need not be proved, even in a criminal case, if admitted or conceded

by defendant.” (Id. at p. 675, italics added.)



                                                 5
       I am therefore at a loss as to how my colleagues can hold the People’s concession

mattered in Mutter, but refuse to do so here, and even entertain the possibility of

affirming the court’s erroneous order on the ground Owens did not attach evidence to his

petition. (See maj. opn. ante, at p. 8, fn. 4.) If the People’s agreement to a fact can

satisfy a petitioner’s ultimate burden of proving entitlement to relief, a fortiori such an

agreement can satisfy the lesser burden of demonstrating a reasonable probability of

entitlement to relief. As our rules of evidence recognize, there is no reason to demand

evidence to support points an opposing party concedes or admits. (See Evid. Code, § 210

[“‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action”],

italics added.)

       Applying the unremarkable proposition that concessions mean what they say is

important for enabling the courts to process Proposition 47 petitions efficiently. To

conclude otherwise would render the People’s response form irrelevant and would

increase the need for hearings. The trial courts designed their Proposition 47 forms to

supply the information they deemed necessary to deal efficiently with the expected

deluge of petitions. Giving meaning to the representations in the pleadings ensures courts

will be able to use those forms to expedite consideration of petitions and determine which

cases require further fact finding. (See Duvall, supra, 9 Cal.4th at p. 482 [pleadings

“provide a framework in which a court can discover the truth and do justice in timely

fashion”].) The instructions attached to Riverside County Superior Court’s petitioning



                                              6
form envision a similar outcome. These instructions inform petitioners: “If the District

Attorney does not oppose resentencing, you will be resentenced to a misdemeanor in

accordance with Penal Code § 1170.18 and given credit for time served.” (See Petition

for Resentencing—Application for Reduction to Misdemeanor, form RI-CR039,

Instructions Sheet, <http://www.riverside.courts.ca.gov/localfrms/ri-cr039.pdf> [as of

Aug. 31, 2016].)

       I recognize Proposition 47 is burdening prosecutors and defense counsel

throughout the state, but the new law is also burdening the courts. A court is never

required to grant a petitioner’s request based on the People’s representation he is entitled

to relief, but it is critical a court be able to rely on such a representation. For this reason,

district attorneys must take care in submitting representations in response to section

1170.18 petitions. This is no different than the obligation they have in any other context.

A prosecutor is “an officer of the court whose representations . . . properly could sustain

the court’s ruling.” (People v. Medina (1995) 11 Cal.4th 694, 731.) “[A]n attorney

‘ “. . . owes the duty of good faith and honorable dealing to the judicial tribunals before

whom he practices his profession . . . His high vocation is to correctly inform the court

upon the law and the facts of the case, and to aid it in doing justice and arriving at

correct conclusions . . . Courts expect even higher ethical standards from prosecutors . . .

because of the unique function he or she performs in representing the interests, and in

exercising the sovereign power, of the State. [Citation.]” ’ ” (People v. Uribe (2011) 199

Cal.App.4th 836, 884-885, italics added.) As a result, a district attorney’s waiver of



                                               7
presence at a resentencing hearing and representation to the court that a petitioner is

entitled to resentencing is “virtually made under oath.” (Holloway v. Arkansas (1978)

435 U.S. 475, 486.) The attorney general’s acknowledgement of the district attorney’s

concession at oral argument in this case is a good example of adherence to those

obligations.

       Accordingly, I would hold the pleadings in this case discharged Owens’s prima

facie burden and triggered the court’s duty to make a factual determination on the merits

of the petition. Once the trial court is faced with determining eligibility under section

1170.18, subdivision (b), it can proceed in one of two ways. It can review the

submissions and its own files and make a factual determination based on substantial

evidence, or it can hold a hearing to give the parties an opportunity to present evidence

and argument concerning eligibility. (See Sherow, supra, 239 Cal.App.4th at p. 880

[once “the initial showing [has been made] the court can take such action as appropriate

to grant the petition or permit further factual determination”].) Because the pleadings

demonstrated the court should consider the merits of the petition and the record

apparently contained only the restitution order, which is not substantial evidence of

Owens’s eligibility, in this case the trial court should have held a hearing.

       B.      Owens Can Amend His Petition to Cure Any Defects

       The second issue the majority leaves unanswered is whether, assuming the

concession did not discharge the initial burden, we are required to affirm the trial court’s

order based on the lack of evidence in Owens’s petition. The question warrants an



                                              8
answer for multiple reasons. First, the parties briefed this issue on appeal. Second, as an

appellate court, we are constrained to affirm a trial court’s ruling so long as there is any

correct basis to support it. (E.g., ASP Properties Group, L.P. v. Fard, Inc., (2005) 133

Cal.App.4th 1257, 1268.) Third, this court frequently affirms otherwise erroneous

denials of Proposition 47 petitions based solely on a petitioner’s failure to attach evidence

to his petition. If the majority is parting ways with that type of affirmance—and I think

we would be wise to do so in many cases, for the reason explained post—that decision

calls for discussion.

       For all of these reasons, I address whether we are required to affirm based on

Owens’s failure to attach evidence to his petition, and my answer is no. Even if I ignore

the People’s concession, I nevertheless cannot conclude the petition is fatally defective

because Owens can cure his failure to provide eligibility evidence through amendment.

       In general, courts are required to liberally allow pleading amendments, permitting

them whenever it is reasonably possible a party can cure an insufficiency. (Careau &

Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386 (Careau)

[failure to grant leave to amend complaint where there is a reasonable possibility the

plaintiff can cure the defect “is an abuse of discretion”]; Kong v. City of Hawaiian

Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028; see also 4 Witkin &

Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 242, p. 501 [accusatory

pleadings]; Duvall, supra, 9 Cal.4th at p. 482 [habeas petitions].) As our high court

explained in Duvall, “[a]ny judge, at any time before or after commencement of trial, in



                                              9
the furtherance of justice, and upon such terms as may be proper, may allow the

amendment of any pleading. . . . Retention of this power [in the habeas context] is

necessary to ensure that technical and inadvertent pleading errors do not lead to

premature dismissals that would frustrate the ends of justice or require holding

unnecessary evidentiary hearings that would squander scarce judicial resources.”

(Duvall, at p. 482.)

       Where “the trial court never reached the sufficiency of . . . particular allegations”

such that the party never had the opportunity to make “a showing below as to how he

could amend,” the reviewing court can determine on appeal whether allowance of

amendment is required. (Kong, supra, 108 Cal.App.4th at pp. 1042-1043, 1048

[reversing order sustaining demurrer and directing trial court to allow amendment

because plaintiff’s representations at oral argument indicated he could amend to state a

cause of action].) I see no reason to employ a different standard in handling Proposition

47 petitions.

       “[T]he general rule requiring the pleading of facts should not be enforced in such a

draconian fashion so as to defeat the ends of justice.” (Duvall, supra, 9 Cal.4th at

p. 485.) Here, although the trial court never reached the legal sufficiency of Owens’s

petition, the appellate record demonstrates Owens could easily amend his petition to

satisfy the standard set forth in Perkins. Owens’s notice of appeal contained a request for

a certificate of probable cause in which he declared under penalty of perjury that he

committed “several petty thefts” by “stealing a few vacuums,” none of them worth more



                                             10
than $700. By including this information in his petition in the form of a declaration,

Owens would satisfy the requirement that he provide “some evidence” on the nature of

his convictions that, if true, would entitle him to relief. (Perkins, supra, 244 Cal.App.4th

at p. 137; see also Careau, supra, 222 Cal.App.3d at p. 1391 [“On appeal, it is not our

task to be concerned with the possible difficulty or inability of proving such

allegations”].)

       It is particularly important to recognize the right to amend when the alternative is a

petitioner loses his potentially meritorious right to resentencing. “An amendment should

be allowed where the defect, though one of substance, may possibly be cured by

supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so.”

(5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 995, p. 407, citing MacLeod v.

Tribune Publishing Co. (1959) 52 Cal.2d 536, 542.)

       The petition Owens used in this case, the Riverside County Superior Court’s

mandatory form, contains no indication the law requires petitioners to include any

support whatsoever for the boxes they check. (See Petition for Resentencing—

Application for Reduction to Misdemeanor, form RI-CR039

<http://www.riverside.courts.ca.gov/localfrms/ri-cr039.pdf> [as of Aug. 31, 2016].)

Indeed, even the text of the statute does not inform the petitioner evidence is required at

the pleading stage. Section 1170.18, subdivision (a) states only that an offender may

“petition for a recall of sentence.” The requirement to attach evidence to a petition arose

after the passage of section 1170.18, when appellate courts put a gloss on the statutory



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text. (Sherow, supra, 239 Cal.App.4th 875; Perkins, supra, 244 Cal.App.4th 129.) In

Sherow and Perkins, the appellate courts recognized the unfairness of enforcing this rule

against petitioners with no notice of its effect by opting to affirm orders denying petitions

without prejudice to refiling a subsequent, properly supported petition. (Sherow, at

pp. 880-881; Perkins, at p. 140.)

       It is my view that appellate courts should not affirm otherwise erroneous denials

of Proposition 47 petitions on the sole ground the petition lacked evidence, if there is a

reasonable possibility the petitioner could amend his petition to meet his prima facie

burden.2 In most cases, the remedy is simple and at the petitioner’s fingertips. All the

petitioner would have to do is file a petition containing his declaration of the nature of his

offense and the amount of loss involved. (See Sherow, supra, 239 Cal.App.4th at p. 880

[recognizing that while there is typically “no record of value in the trial record,” a

petitioner “knows what kind of items he took”].)

       I would therefore reverse the trial court’s order denying Owens’s petition and

remand for further proceedings. On remand, I would allow the trial court to exercise its

discretion whether determining eligibility requires augmentation of the factual record

and, if so, whether to accomplish that end by ordering Owens to amend his petition or

       2  Because I hold this view, I disagree with the dicta in footnote 4 of the majority
opinion that we could have affirmed the trial court’s erroneous order on the ground
Owens failed to attach evidence to his petition. (Maj. opn. ante, at p. 8, fn. 4.) The
People’s eligibility concession and the requirement to allow amendment preclude
affirmance on that ground. My opinion is a concurrence and not a dissent, however,
because I agree with the majority’s ultimate disposition to reverse and remand the matter
for further proceedings.


                                             12
ordering the parties to supplement the record at an evidentiary hearing. (People v.

Fedalizo (2016) 246 Cal.App.4th 98, 108 [“[T]rial courts have substantial flexibility to

devise practical procedures to implement Proposition 47, so long as those procedures are

consistent with the proposition and any applicable statutory or constitutional

requirements”].)

       As a final point, I believe this opinion satisfies several of our publication criteria

and should be certified for publication. To date, I am aware of no published case

(1) holding aggregation is improper in the context of shoplifting under section 459.5;

(2) containing the in-depth substantial evidence analysis found in the majority opinion; or

(3) providing guidance on the treatment and interpretation of pleadings under section

1170.18. (Cal. Rules of Court, rule 8.1105(c)(2), (3), (6) & (9).)


                                                                  SLOUGH
                                                                                                J.




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