California Court of Appeal Dec 10, 2024 No. E082405Unpublished
Filed 12/10/24 P. v. Mason CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082405
v. (Super. Ct. No. CR44036)
NATHAN JEROME MASON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Heather B. Arambarri, and
Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Nathan Jerome Mason appeals from the trial court’s
postjudgment order denying his petition to reclassify his 1992 felony conviction for 1 second degree burglary (Pen. Code, § 459) to a misdemeanor pursuant to section
1170.18. On appeal, defendant contends that the trial court erred in denying his petition
In November 2014, the voters passed Proposition 47, the Safe Neighborhoods and
Schools Act. Proposition 47 reduced certain nonviolent drug and theft offenses to
misdemeanors. It also added section 459.5, which provides: “(a) Notwithstanding
[s]ection 459, shoplifting is defined 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). Any other entry into a commercial establishment with intent to
commit larceny is burglary . . . . [¶] (b) Any act of shoplifting as defined in subdivision
(a) shall be charged as shoplifting. No person who is charged with shoplifting may also
be charged with burglary or theft of the same property.”
Proposition 47 also enacted section 1170.18. A defendant seeking resentencing or
redesignation of a felony conviction as a misdemeanor may petition or file an application
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pursuant section 1170.18. Specifically, section 1170.18 states that a defendant “may
petition for a recall of sentence” if the defendant was “serving a sentence for a conviction
. . . of a felony or felonies” and “would have been guilty of a misdemeanor under
[Proposition 47] had [Proposition 47] been in effect at the time of the offense.”
(§ 1170.18, subd. (a).) “Upon receiving a petition,” the trial court must determine
whether the defendant is entitled to relief. (§ 1170.18, subd. (b).) If the defendant is
entitled to relief, the defendant’s “felony sentence shall be recalled and the [defendant]
resentenced to a misdemeanor.” (§ 1170.18, subd. (b).) If the defendant has already
completed the sentence for the felony conviction for which the defendant seeks relief, the
defendant instead “may file an application . . . to have the felony conviction or
convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) “If the application
satisfies [the requisite criteria], the court shall designate the felony offense or offenses as
a misdemeanor.” (§ 1170.18, subd. (g).)
Originally, a petitioner had to file a petition or application within three-years of
the effective date of Proposition 47. (Compare § 1170.18, subd. (j) [petition or
application generally must be filed on or before Nov. 4, 2022] with former § 1170.18,
subd. (j) [petition or application generally must be filed within three years after the
effective date of Prop. 47].) Effective October 8, 2023, Senate Bill No. 749 (2023-2024
Reg. Sess.) amended section 1170.18 and removed the language in subdivision (j)
establishing the deadline for filing a petition pursuant to section 1170.18. The November
4, 2022, deadline was eliminated entirely. Extending the deadlines for filing a petition
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reflects an intent to enlarge, rather than restrict, the opportunity for a defendant to seek
relief under section 1170.18. Likewise, construing section 1170.18 to allow a successive
petition enlarges, rather than restricts, the opportunity for a defendant to obtain relief.
In this case, as the People acknowledge, defendant’s second petition filed on
October 6, 2022, and the purported third petition inadvertently filed on September 18,
2023, were timely.
C. Eligibility for Relief
“A defendant seeking resentencing under section 1170.18 bears the burden of
establishing his or her eligibility, including by providing in the petition a statement of
personally known facts necessary to eligibility. [Citations.]” (People v. Page (2017) 3
Cal.5th 1175, 1188.) If the defendant fails to meet this burden, the trial court’s order
denying the petition must be affirmed, even if the trial court expressed a different reason
for denying the petition. (Perkins, supra, 244 Cal.App.4th at p. 139.) “[O]n appeal we
are concerned with the correctness of the superior court’s determination, not the
correctness of its reasoning. [Citation.] ‘“[W]e may affirm a trial court judgment on any
[correct] basis presented by the record whether or not relied upon by the trial court.
[Citation.]” [Citation.]’ [Citation.]” (Ibid.)
A defendant submitting a section 1170.18 petition and arguing that a theft crime
should be resentenced as a misdemeanor, because the value of the property stolen was
$950 or less, has the initial burden of presenting evidence of the value of the property.
(Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Johnson (2016) 1 Cal.App.5th
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953, 964-965 (Johnson); People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).)
Some or all of the information or evidence necessary to enable the court to determine a
defendant’s eligibility must accompany the petition. (Sherow, supra, at p. 880; Perkins,
supra, at pp. 136-137, 140; Johnson, supra, at p. 970.) “In some cases, the uncontested
information in the petition and record of conviction may be enough for the petitioner to
establish . . . eligibility” for recall of his felony sentence. (People v. Romanowski (2017)
2 Cal.5th 903, 916 (Romanowski).) More often, however, excluding evidence outside the
record of conviction will impede a defendant from meeting his or her burden to prove
eligibility under Proposition 47, which often turns on establishing key facts not
previously adjudicated, e.g., when newly relevant evidence was not an element at the
time defendant was convicted, or when a defendant pled guilty. (Ibid.)
Where eligibility for resentencing turns on facts not established by the record of
conviction, the court may require an evidentiary hearing if it “‘finds there is a reasonable
likelihood that the petitioner may be entitled to relief and [his] entitlement to relief
depends on the resolution of an issue of fact.’ [Citations.]” (Romanowski, supra, 2
Cal.5th at p. 916.) That evidence can come from any competent source. (See Johnson,
supra, 1 Cal.App.5th at pp. 968, 971 [petitioner seeking recall of sentence under Prop. 47
may present probative evidence from any source]; Perkins, supra, 244 Cal.App.4th at p.
140, fn. 5 [petitioner may use declarations or any probative evidence]; Sherow, supra,
239 Cal.App.4th at p. 880 [petitioner’s testimony about the nature of items taken].) In a
case such as this, new evidence offered to demonstrate the value of stolen property was
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less than $950 may be presented in various forms, as well as whether defendant entered
the store with the intent to commit larceny. (Perkins, supra, at p. 137.) A declaration
from the defendant or a witness containing “testimony about the nature of the items
taken” may also be informative, even sufficient. (See Sherow, supra, at p. 880.) If and
once the defendant makes this showing, the People have an opportunity to attempt to
demonstrate defendant’s ineligibility for resentencing. (Johnson, supra, at p. 965.)
If the trial court determines defendant has submitted evidence sufficient to create a
dispute as to the value, but has not established his or her eligibility, the court may “permit
further factual determination.” (Sherow, supra, 239 Cal.App.4th at p. 880.) Proof of
eligibility for resentencing or redesignation of a conviction must be made by a
preponderance of the evidence. (People v. Bush (2016) 245 Cal.App.4th 992, 1001.)
Here, defendant passed the initial screening stage and met his prima facie burden
by declaring the stolen property did not exceed $950 and that he entered the building
during business hours “according to Police Reports.” Nonetheless, the trial court denied
the second petition based on its mistaken belief “the petition was early and that it was
denied on September the 2nd, 2021” and then took the matter off calendar. That was
error. Excluding evidence outside the record of conviction may impede a defendant from
meeting his or her burden to prove eligibility under Proposition 47, if that evidence was
not an element at the time defendant was convicted. (Romanowski, supra, 2 Cal.5th at p.
916; Johnson, supra, 1 Cal.App.5th at p. 968; Perkins, supra, 244 Cal.App.4th at p. 140.)
In the present matter, new evidence was necessary in order for defendant to attempt to
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demonstrate his eligibility for reduction of his commercial burglary conviction within the
misdemeanor statute’s $950 threshold, a monetary limit that is not an element of his
felony conviction.
The court also erred in denying the petition filed on September 18, 2023, as
untimely or past the November 4, 2022, deadline. As previously noted, effective October
8, 2023, Senate Bill No. 749 (2023-2024 Reg. Sess.) amended section 1170.18 and
eliminated the deadline for filing a petition pursuant to section 1170.18. Furthermore, we
agree with defendant that this court’s prior opinion in Mason I is not dispositive on the
issue of valuation or whether defendant entered the store during regular business hours
with the intent to steal because we had dismissed that appeal as abandoned. Moreover,
defendant may file successive petitions to include more evidence to support his petition
or application, and it is unknown whether defendant had included the same information in
his first petition that was denied and appealed to this court.
Here, an evidentiary hearing is necessary as there are factual issues in dispute.
The trial court did not consider defendant’s declaration or defendant’s record of
conviction, which presumably includes the police report, as evidence that the value of the
stolen property did not exceed $950 or that defendant entered the store with the intent to
steal during regular business hours. Defendant had also attached a minute order showing
a restitution fine in the amount of $500. Although a restitution fine under section 1202.4
is different from victim restitution and the minute order of the sentencing hearing
indicated defendant had to pay direct victim restitution in an amount determined by the
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probation officer, there is no indication in the record that victim restitution was ever
imposed in this case. There is also the factual issue, as the People point out, as to
whether defendant was still serving a sentence in November 2014. In any event, if the
defendant has already completed the sentence for the felony conviction for which the
defendant seeks relief, defendant instead “may file an application . . . to have the felony
conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)
Under Proposition 47, eligibility often turns on the simple factual question of the
value of the stolen property or whether a defendant entered during regular business hours.
In most such cases, the value of the property was not important at the time of conviction.
Therefore, the record may not contain sufficient evidence to determine its value. For that
reason, an evidentiary hearing is necessary, and a defendant is not precluded from filing a
new petition supported by competent or other probative evidence as sufficient proof of
the value of the stolen goods to establish eligibility for relief under Proposition 47. (See
People v. Pak (2016) 3 Cal.App.5th 1111, 1121 [affirming the denial of Proposition 47
petition without prejudice, explaining that “[i]n any new petition, defendant should
describe the stolen property and attach some evidence, whether a declaration, court
documents, record citations, or other probative evidence showing she is eligible for
relief”]; Perkins, supra, 244 Cal.App.4th at pp. 140.)
On remand, the trial court has 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. (Perkins, supra,
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244 Cal.App.4th at p. 138.) The court may exercise its discretion to develop a factual
record to address defendant’s eligibility by requesting the submission of additional
evidence or by conducting a hearing to determine the fair market value of the stolen
goods. Both parties will have an opportunity to litigate the valuation and other issues,
i.e., whether defendant entered the store during normal business hours with the intent to
steal as opposed to some other felony, under the applicable standards on remand. We
express no opinion on the merits of that issue.
As a guidance to the court and the parties, under section 484, subdivision (a),
which defines theft, “‘[i]n determining the value of the property obtained, for the
purposes of this section, the reasonable and fair market value shall be the test.’”
“[C]ourts have long required section 484’s ‘reasonable and fair market value’ test to be
used for theft crimes that contained a value threshold . . . .” (Romanowski, supra, 2
Cal.5th at p. 914 [Proposition 47 did not change this valuation approach].) California
courts have established this general principle for determining the value of property in a
theft crime. If defendant subsequently finds evidence, i.e., describing the stolen property
and attaching some evidence, whether a declaration, court documents, police report,
record citations, or other probative evidence showing he is eligible for relief, he may file
a successive petition with the trial court. (See Perkins, supra, 244 Cal.App.4th at p.142.)
Based on the foregoing, we reverse the order denying defendant’s section 1170.18
petition to reduce his 1992 burglary conviction to a misdemeanor and remand the matter
for an evidentiary hearing.
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IV.
DISPOSITION
The trial court’s order denying defendant’s second section 1170.18 petition is
reversed and the matter is remanded for an evidentiary hearing consistent with this
opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court erred in summarily denying the defendant's petition for resentencing under Penal Code section 1170.18; the matter is remanded for an evidentiary hearing to determine the defendant's eligibility for relief.
Issues
Whether the trial court erred in denying the defendant's section 1170.18 petition as untimely or precluded by a prior appeal.
Whether the defendant met his prima facie burden to warrant an evidentiary hearing regarding his eligibility for misdemeanor redesignation.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“we reverse the order denying defendant’s section 1170.18 petition and remand the matter for an evidentiary hearing.”
“the trial court’s order denying defendant’s second section 1170.18 petition is reversed and the matter is remanded for an evidentiary hearing consistent with this opinion.”