California Court of Appeal Apr 28, 2016 No. E063090Unpublished
Filed 4/28/16 P. v. Larner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063090
v. (Super.Ct.No. SWF1303116)
AMBER NICOLE LARNER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Susan K. Shaler, 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, Scott C. Taylor, and Daniel
Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Amber Nicole Larner pled guilty to one count of felony
second degree burglary (Pen. Code, § 459, count 1), one count of felony identity theft
(§ 530.5, subd. (a), count 3),1 and admitted having a prior strike conviction (§§ 667,
subds. (c), (e)(1), 1170.12, subd. (c)(1)). On February 20, 2014, the superior court
Cal.App.4th 1273, 1277 [“The prosecution bears the burden of proving beyond a
reasonable doubt that a defendant’s prior convictions were for either serious or violent
felonies”].) As a result, any failure of evidence defeats the ability of the prosecution to
meet its burden to show the prior offense was subject to greater punishment, triggering an
enhancement. Here, as we have discussed, Larner is seeking relief and therefore must
carry the burden of showing her eligibility. The failure of proof therefore cuts against
Larner.
People v. Bradford (2014) 227 Cal.App.4th 1322 does not support Larner’s
position. In Bradford, the Third Appellate District held that under the Three Strikes
Reform Act of 2012 the prosecution was not permitted to go outside the record of
conviction to establish that the defendant was ineligible for resentencing on the basis of
the nature of his conviction. (People v. Bradford, supra, at p. 1339.) The Bradford court
did not relieve the defendant of his burden of presenting evidence to support his petition.
7
On the contrary, the court indicated “the petitioner would be well advised to address
eligibility concerns in the initial petition for resentencing.” (Id. at p. 1341.) Here, Larner
did not raise such issues and did not offer testimony or other evidence concerning the
value of the forged check. (See Perkins, supra, 244 Cal.App.4th at p. 137.) Without
such a showing, the superior court did not err in deciding Larner had not established her
eligibility for resentencing.
Finally, Larner contends the superior court erred by ruling on her petition without
holding a hearing. Proposition 47 “‘does not expressly require the trial court to hold a
hearing before considering the eligibility criteria, nor is there a reference to the taking of
“evidence” or other proceeding that would compel involvement by the parties.’
[Citation.]” (Perkins, supra, 244 Cal.App.4th at p. 137.) The statute simply states:
“Upon 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.” (§ 1170.18, subd. (b).) Thus, many petitions can be
resolved based on the filings and information readily available to the superior court.
(Perkins, supra, at p. 138 [noting in some cases “the superior court may be able to
determine whether a petitioner is eligible for resentencing simply by consulting the
record of conviction”].) Larner asserts without authority that resolving her petition
without a hearing violated her due process rights. We see no basis for this contention
where Larner has failed to present a factually supported petition.
8
We are aware Larner challenges the superior court’s order denying her petition on
the ground the court found the forged check exceeded $950 on the basis of evidence
outside the record of conviction. However, on appeal we are concerned with the
correctness of the superior court’s determination, not the correctness of its reasoning.
(People v. Dawkins (2014) 230 Cal.App.4th 991, 1004, as mod. (Oct. 21, 2014), review
den. (Jan. 21, 2015) [“If right upon any theory of the law applicable to the case, [a
decision] must be sustained regardless of the considerations which may have moved the
trial court to its conclusion. [¶] . . . [¶] In other words, it is judicial action, and not
judicial reasoning or argument, which is the subject of review; and, if the former be
correct, we are not concerned with the faults of the latter. [Citation.]”].) As we have
discussed, this record demonstrates Larner failed to carry her burden of establishing she
was entitled to be resentenced, and Larner concedes the record of conviction is silent as
to the amount of the check. Under such circumstances, the deficiency in the petition
warrants affirming the superior court’s order.
However, as the People concede, if Larner can present credible evidence that the
forged check did not exceed $950, she can file another petition in the superior court. (See
Perkins, supra, 244 Cal.App.4th at p. 140 [“In any new petition, [Larner] 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”].)
9
III
DISPOSITION
We affirm the order denying Larner’s petition for resentencing without prejudice
to her filing a new petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
MILLER P. J.
CODRINGTON J.
10
AI Brief
AI-generated · verify before citing
Holding. A petitioner seeking resentencing under Proposition 47 bears the burden of proving their eligibility, including that the value of the property involved in their conviction did not exceed $950.
Issues
Does a petitioner for resentencing under Proposition 47 bear the burden of proving their eligibility?
May a trial court deny a petition for resentencing if the petitioner fails to present evidence establishing the value of the property involved in the offense?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a petitioner for resentencing under Proposition 47 must establish his or her eligibility for resentencing.”
“In this case, Larner was required to establish the value of the forged check did not exceed $950.”
“Having failed to present such evidence, Larner failed to meet her burden of showing her felony conviction would have been shoplifting had Proposition 47 been in effect at the time of her conviction.”