Sherow contends it would violate due process to place the initial burden of proof
on him to show eligibility for resentencing. His arguments, however, are directed to
principles regarding proof of guilt of an alleged crime. The cases he cites dealing with
such matters as the burden of proof to prove the crime of grand theft, address the question
of whether in the initial prosecution for certain alleged crimes, the People must prove the
amount of the theft meets the criteria for the offense. (People v. Love (2008) 166
Cal.App.4th 1292, 1301.)
The difficulty with a due process argument based on the prosecutor's burden of
proof in the initial prosecution for an offense is that the resentencing provisions of
Proposition 47 deal with persons who have already been proved guilty of their offenses
beyond a reasonable doubt. Under this remedial statute, a petitioner is claiming the crime
6
for which the person has been convicted, would be a misdemeanor if tried after the
enactment of the proposition.
B. Analysis
As we have discussed, the petition here gave virtually no information regarding
Sherow's eligibility for resentencing. Indeed, it lumped all five counts together without
discussion or analysis. We think it is entirely appropriate to allocate the initial burden of
proof to the petitioner to establish the facts, upon which his or her eligibility is based.
Applying the burden to Sherow would not be unfair or unreasonable. He knows
what kind of items he took from the stores in counts 1 and 2. At the time of trial it was
not necessary for the prosecution to prove the value of the loss to prove second degree
burglary. Thus there is apparently no record of value in the trial record.
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.)
The petition at issue in this case gave the trial court no information about
eligibility or even the actual counts about which there may have been a question of
eligibility for resentencing. On a proper petition Sherow may be able to show eligibility
on counts 1 or 2 or both, but he has not done so on this record.
7
DISPOSITION
The order denying Sherow's petition for resentencing is affirmed without prejudice
to subsequent consideration of a properly filed petition.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
8
Filed 8/20/15 COURT OF APPEAL - STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY WAYNE SHEROW, Defendant and Appellant. D067605 Riverside County No. RIF138991
THE COURT:
The opinion in this case filed August 11, 2015 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), respondent's request pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
Huffman, Acting Presiding Justice
cc: All Parties
AI Brief
AI-generated · verify before citing
Holding. A petitioner seeking resentencing under Proposition 47 bears the initial burden of establishing eligibility by proving that the value of the stolen property in the underlying offense did not exceed $950.
Issues
Does a petitioner for resentencing under Proposition 47 bear the burden of proving eligibility, including the value of stolen property?
Did the trial court properly deny a petition for resentencing that failed to provide facts or evidence regarding the value of the stolen property?
Disposition. affirmed
Quotations verified verbatim against the opinion
“a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.”
“we believe a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.”
“we are satisfied that Sherow's blanket request for resentencing on all counts without any effort to deal with those which might have involved less than $950 or to discuss any facts surrounding the offenses, was fatally defective.”