People v. Sherow, Under Prop 47, Defendant Has Burden Of Proof To Establish Amount Taken

In People v. Sherow (2015) 239 Cal.App.4th 875,  the Court of Appeal answered the question of who has the burden of proof when a defendant brings a Petition under Proposition 47 and asserts that he is entitled to re-sentencing for a theft crime.

On July 31, 2007, Officer Cisneros with the Riverside County Police Department's burglary and auto theft unit conducted undercover surveillance on Sherow because he was suspected of large scale DVD thefts.  Officer Cisneros observed Sherow enter a Ross department store, go the men's apparel section, select several pieces of clothing off the rack, "roll it up in a really tight roll," place it in his waistband, and leave the store without paying.  Officer Cisneros then watched appellant go to his vehicle, place the stolen goods in the back seat, and drive off. Thereafter, Officer Cisneros followed appellant to an AJ Wright store.  Officer Cisneros witnessed appellant steal more men's clothing in the same manner as he did at Ross.  After appellant left AJ Wright without paying for the merchandise he tucked into his waistband, Officer Cisneros followed him to Walmart. While appellant was inside Walmart, Officer Cisneros looked inside appellant's car and saw the items appellant had taken from Ross and AJ Wright in plain view on the back seat.

On Appeal, Sherow contended that his blanket request to reduce his convictions to misdemeanors, without any discussion or elaboration placed the burden on the prosecution to first, discern he was only potentially eligible for Proposition 47 relief on counts 1 and 2.  He further contends the prosecution had the burden to prove Sherow was not eligible for resentencing.  But the state argued that the initial burden was on Sherow to prove his eligibility for resentencing in this case by showing the value of the stolen property in each of counts 1 and 2 was under $950.

Proposition 47, which is codified in section 1170.18, reduced the penalties for a number of offenses.  Among those crimes reduced are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal.  Such offense is now characterized as shoplifting as defined in new section 459.5.  Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950.  (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, 889-891.)

Section 1170.18 creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing.  Section 1170.18, subdivision (b) provides in part:  "Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria for subdivision (a)."  Under subdivision (b) a person who satisfies the criteria in subdivision (a) of section 1170.18, shall have his or her sentence recalled and be sentenced to a misdemeanor (subject to certain exclusions not relevant here).

In this case, Sherow brought a Petition under Proposition 47 and claimed that the thefts in counts 1 and 2, respectively, were of a value of less than $950, and he was entitled to re-sentencing, absent any statutory exclusions. But the court determined that defendant had the burden of proof.
The appellate court explains that a proper petition could certainly contain at least Sherow's testimony about the nature of the items taken.  If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.  (People v. Bradford (2014) 227 Cal.App.4th 1332, 1341.)  Because Sherow did not support his claim with any evidence, the court finds that he has not brought forth sufficient facts to establish that he was eligible for relief.

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