Filed 5/2/16 P. v. Dickson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051884

         v.                                                            (Super. Ct. No. 04HF1585)

THOMAS DICKSON, JR.,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a postjudgment order of the Superior Court of Orange County,
Kazuharu Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed without prejudice.
                   Jared G. Coleman, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Brendon W. Marshall and Warren J. Williams Deputy Attorneys General, for Plaintiff
and Respondent.
              Defendant Thomas Dickson, Jr., appeals from an order denying in part his
petition to have his felony burglary convictions redesignated as misdemeanor petty thefts
under Proposition 47. Defendant contends the court erroneously placed the burden of
proving eligibility on him, and mistakenly concluded his felony burglary convictions do
not qualify for reclassification as misdemeanors. We disagree and affirm the order.
                        FACTS AND PROCEDURAL HISTORY
              In 2005, a jury convicted defendant of six felony counts of second degree
burglary (Pen. Code §§ 459, 460, subd. (b), all subsequent statutory references are to this
code), and the court sentenced him to 150 years to life in prison. In 2013, the court
granted defendant relief under section 1170.126 and resentenced him to 10 years eight
months in prison.
              In 2015, defendant filed a single page form petition for relief under section
1170.18, subdivisions (f) and (g). The petition was not supported by any documentation,
and revealed nothing about the circumstances surrounding the offenses.
              At the hearing, the prosecutor did not oppose the petition as to count 3, but
never explained why. As to counts 1, 2, 4, 5 and 6, the prosecutor said: “we’re opposed
as to the areas in which the burglaries that were committed were places not open to the
general public. They were office buildings in areas where the employer or the employee
was at their personal desk.” The court asked, “Are [those] all the same location same
time?” The prosecutor replied, “Your honor, they’re all different businesses within a
business complex.” Counsel agreed the loss on each was less than $950.
              Near the end of the hearing, the court stated: “Well, based on what I have
so far, I do not think these qualify. Now I wouldn’t necessarily say that they wouldn’t
[qualify] depending on the specific facts. It’s possible that they would. But based on
what I have heard so far I would say they don’t qualify.” Minutes later the court denied
the petition as to counts 1, 2, 4, 5 and 6, but granted it as to count 3, all without further
explanation and without making any factual findings.

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                                        DISCUSSION
              Defendant’s primary complaint on appeal is that the court erroneously
placed the burden of proving eligibility for Proposition 47 relief on him. Not so. In
People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow), also a case involving denial
of a Proposition 47 petition seeking to reduce felony second degree burglary convictions
to misdemeanor petty thefts, Division One of this court placed the burden of proving
eligibility for resentencing squarely on the defendant. (Accord, People v. Rivas-Colon
(2015) 241 Cal.App.4th 444.)
              We agree with the reasoning of Sherow. A defendant who seeks relief
under section 1170.18 has already been convicted of a felony. As the moving party, the
defendant has the burden of proving he is eligible for relief. Resentencing on second
degree burglary is not automatic. Depending on the circumstances surrounding the
offense, the defendant may or may not be eligible for relief. If he can prove he entered a
commercial establishment during regular business hours and took property worth $950 or
less, the offense is shoplifting (§ 459.5) and he is eligible for relief; otherwise not.
              We reject defendant’s argument Sherow should not be followed. He notes
Sherow cited secondary authority, and claims its conclusion that the defendant has the
burden of proving eligibility is contrary to controlling California law. But Sherow also
cited 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.”’” (Sherow, supra, 239 Cal.App.4th at p. 879.)
              Finally, defendant contends there is insufficient evidence in the record to
determine his eligibility, so again the court erred. Here we agree with his premise but not
his conclusion. In this case, as in Sherow, “the petition . . . gave virtually no information
regarding [his] eligibility for resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 880.)
Further, the only other facts in the record which we have concerning defendant’s burglary
convictions are set out above in the representations of counsel to the court at the hearing.

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              Under these circumstances we cannot conclude the court erred in denying
defendant’s petition to have his felony commercial burglary convictions redesignated as
misdemeanor petty thefts under section 1170.18, subdivisions (f) and (g). The record is
essentially devoid of information from which the court could determine his eligibility for
relief. Thus, defendant, like the defendant in Sherow, did not satisfy his burden of proof.
                                     DISPOSITION
              The order denying defendant’s petition for resentencing is affirmed without
prejudice to consideration of a subsequently filed petition.




                                                 THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.




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