offender), and 1170.18 (resentencing). It also amended sections 473, 476a, and 496, and
Health and Safety Code sections 11350, 11357, and 11377 to change the crimes’ status to
misdemeanors. (Rivera, supra, 233 Cal.App.4th at p. 1091.) Section 1170.18,
subdivision (a), provides: “(a) A person currently serving a sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section (‘this act’) had this act been in effect at
the time of the offense may petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.”
Subdivision (b) of section 1170.18 provides that, “[u]pon receiving a petition
under subdivision (a), the court shall determine whether the petitioner satisfies the criteria
in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor
3Proposition 47 also provides that eligible defendants who have already completed a felony sentence can file petitions for redesignation of convictions as misdemeanors. (§ 1170.18, subds. (f), (g), (i); Rivera, supra, 233 Cal.App.4th at p. 1093.)
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pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been
amended or added by this act, unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
Section 1170.18 thus provides a two-step mechanism, in which a person currently
serving a felony sentence for an offense that is now a misdemeanor under Proposition
47’s statutory amendments, may petition for a recall of that sentence and request
resentencing in accordance with the offense statutes added or amended by Proposition 47.
(§ 1170.18, subd. (a).) A defendant who satisfies the criteria in subdivision (a) of section
1170.18, shall have his or her sentence recalled and be “resentenced to a misdemeanor
. . . unless the court, in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b); T. W. v.
Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.) First, the trial court must
determine if the petitioner is eligible for resentencing under section 1170.18 based on a
preponderance of the evidence. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1040
(Osuna); but see People v. Arevalo (2016) 244 Cal.App.4th 836, 853 [reasonable doubt
standard applies for determination of Proposition 36 resentencing eligibility].) If the
court finds the petitioner eligible, the trial court must determine the factual issue of
whether the petitioner presents an unreasonable risk of danger to public safety if
resentenced.
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IV
THEFT FROM AN ELDER
In addition to adding section 1170.18 to the Penal Code, Proposition 47 also added
sections 459.5 and 490.2 and 1170.18, amended sections 473, 476a, 496 and 666, and
amended Health and Safety Code sections 11350, 11357 and 11377. (People v. Shabazz
We also note Proposition 47 rewrote section 666, adding language to subdivision
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(b) of section 666, excluding section 368 from limited punishment under section 666 of
one year in jail or prison.4 This reflects Proposition 47 was not intended to provide
resentencing for a section 368 crime, because section 368 is considered a more serious
offense than the listed theft crimes in section 1170.18. Section 368 punishes offenders
who prey on vulnerable elders and dependent adults, with section 368 providing the trial
court with discretion to sentence an offender more severely than required under section
1170.18 for one of the specified potentially less egregious crimes.
We conclude Proposition 47’s listed crimes, including a section 490.2 crime, do
not encompass a section 368 crime for sentencing eligibility purposes. Had the intent of
Proposition 47 been to include section 368 as a crime eligible for resentencing, section
368 would have been listed in section 1170.18 or amended. Omission of the crime as one
of the listed crimes eligible for resentencing and the amendment to section 666 regarding
section 368, reflect that section 368 was not intended to be one of the crimes eligible for
4 Section 666, as amended states: “(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368, auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony violation of Section 496, and having served a term of imprisonment therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, and who is subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.
“(b) Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to subdivision (d) or (e) of Section 368.
“(c) This section shall not be construed to preclude prosecution or punishment pursuant to subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.” (Italics show language added to section 666, as amended by Proposition 47.)
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resentencing. Because Proposition 47 has specified which crimes are subject to
resentencing, we reject defendant’s contention Proposition 47 encompasses section 368,
which is not listed as eligible for resentencing. (Gikas v. Zolin (1993) 6 Cal.4th 841, 852
[“The expression of some things in a statute necessarily means the exclusion of other
things not expressed. [Citation.] The expression of preclusion by an acquittal excludes
preclusion in other regards not expressed.”]
Furthermore, section 490.2 does not provide indirect resentencing eligibility for a
section 368 crime under section 1170.18. Even assuming Proposition 47 encompasses
statutes not amended by or listed in Proposition 47, a section 368 offense is not subject to
Proposition 47 because section 368 provides the trial court with discretion to decide
whether a section 368 violation is a misdemeanor or a felony. Proposition 47 did not
amend section 368 to eliminate this discretion and require misdemeanor status.
Therefore defendant cannot establish that his section 368 violation would have been a
misdemeanor had Proposition 47 been in effect at the time of sentencing. Under such
circumstances, defendant cannot meet his burden of establishing resentencing eligibility,
even if he proves the value of the stolen property did not exceed $950. Defendant is not a
person who would have necessarily been guilty of a misdemeanor under Proposition 47
and thus is ineligible for resentencing under section 1170.18, subdivision (a).
V
RECEIVING STOLEN PROPERTY
Defendant contends the trial court erred in denying his petition for resentencing as
to counts 12, 14, and 15. Those counts are for receiving stolen property in violation of
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section 496, subdivision (a). Section 496 crime is listed in section 1170.18 as one of the
crimes which qualifies a defendant for resentencing under Proposition 47. Nevertheless,
the trial court denied defendant’s petition for resentencing on the ground defendant was
ineligible for resentencing on counts 12, 14, and 15 “due to the nature of the
convictions.”
Section 496, subdivision (a), as amended by Proposition 47, provides that anyone
who receives stolen property, knowing the property to be stolen, “shall be punished by
imprisonment in a county jail for not more than one year, or imprisonment pursuant to
subdivision (h) of Section 1170. However, if the value of the property does not exceed
nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by
imprisonment in a county jail not exceeding one year, if such person has no prior
convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.”
When defendant entered his guilty plea and was convicted in 2003 on counts 12,
14, and 15, the threshold value of the stolen property required for a felony conviction was
in excess of $400, rather than $950. Therefore the fact defendant pled guilty to felony
violations of section 496, subdivision (a), does not establish that the stolen property in
counts 12, 14, and 15 exceeded $950, for purposes of resentencing eligibility.
Counts 12, 14, and 15 of the information, to which defendant pled guilty, do not
allege the value of the stolen property received. Counts 12, 14, and 15 allege defendant
received stolen identification cards from three separate victims, knowing each card had
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been stolen. Defendant’s guilty plea signed by defendant states defendant pled guilty to
felony receipt of stolen property in violation of section 496, subdivision (a), as to counts
12, 14, and 15. No facts of the crimes, such as the actual value of the stolen property, are
stated in the plea.
The People argue that facts in the 2003 probation report, prepared in connection
with sentencing defendant, establish that his crimes do not qualify for resentencing under
Proposition 47. Even assuming the court considered the facts in the probation report for
purposes of determining the value of the stolen property, there are no facts in the
probation report indicating the value of each of the stolen identification cards.
The People argue that the trial court’s restitution order establishes that defendant
stole over $950 and therefore he does not qualify for resentencing. The trial court
ordered $2,083.44 in restitution paid to First USA Bank for losses it incurred, as alleged
in counts 8, 17, 18, 19, 20, and 22. These counts allege identity theft from Haughey in
violation of section 530.5, subdivision (a) (counts 8, 19, and 20), and theft of First USA
bank credit cards in violation of section 484E, subdivision (c) (counts 17, 18, and 22).
These are different crimes against different victims than those alleged in counts 12, 14,
and 15, and there are no facts or evidence in the record that the stolen identification cards
are related to the losses incurred by First USA Bank. There was no restitution awarded to
the owners of the identification cards, possibly because the cards could be returned to the
owners or because the prosecution had not established the identification cards had any
quantifiable monetary value.
There is no evidence in the record on appeal upon which the trial court could have
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found the stolen property received alleged in counts 12, 14, and 15 exceeded $950. The
value of other stolen property, forming the basis of the other charges against defendant, is
irrelevant to the determination of eligibility for resentencing as to counts 12, 14, and 15.
Whether defendant was charged or convicted of other crimes involving property
exceeding $950 has no bearing on whether counts 12, 14, and 15 qualify for resentencing
under section 1170.18. Based on our review of the record on appeal, we can find no basis
for the trial court ruling counts 12, 14, and 15 do not qualify for resentencing. The record
on appeal does not support a finding that each of the stolen identification cards alleged in
counts 12, 14, and 15 exceed $950 in value.
Furthermore, this court’s review of the trial court’s determination is impeded
through no fault of defendant by the trial court’s lack of specificity in stating why it
denied defendant’s resentencing petition and by the trial court’s loss of defendant’s
resentencing petition. We realize such circumstances may be attributable to the burden
placed on the trial court to resolve a tsunami of resentencing petitions following the
passage of Proposition 47. Nevertheless, for purposes of reviewing the instant case, this
court has no way of knowing why the trial court concluded counts 12, 14, and 15 are not
crimes eligible for resentencing, when the record before this court supports a finding the
counts are eligible.
We recognize that the burden is on the petitioner to establish eligibility for
resentencing under section 1170.18, subdivision (a). In the instant case it appears that
defendant met his initial burden because the stolen property consisted of identification
cards, in which generally the monetary loss to the victim is difficult to quantify as