California Court of Appeal May 3, 2016 No. E063812Unpublished
Filed 5/3/16 P. v. Dancy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063812
v. (Super.Ct.No. RIF1204694)
SPERLIN TYRONE DANCY II, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge.
Affirmed.
Athena Shudde, 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, A. Natasha Cortina and Kristen
Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant Sperlin Tyrone Dancy II filed a petition for resentencing pursuant to
Penal Code section 1170.18, following the enactment of Proposition 47. At the hearing,
the prosecution proffered a police report suggesting the value of the property stolen
exceeded $950, although that information was not part of the record of conviction. The
1523 [relating to proof of drunk driving conviction for purposes of license suspension
proceedings].)
These decisions inform our resolution. In the present case, there is nothing in the
record of conviction to support a finding as to the value of the property stolen. There is
no restitution order from which a value may be inferred. Count two of both the original
information and the amended information alleged a violation of section 666, petty theft
with a prior. Count three alleged theft of property having a value exceeding $950. Both
counts two and three were dismissed as part of the plea bargain, and we cannot tell from
6
the record of conviction if the two counts pertain to the same or different items taken in
the burglary.
The police report was not a part of the record of conviction in this case, so there is
nothing to support a finding as to the value of the property stolen in the commercial
burglary. Absent an agreement or stipulation that the court could consider information
outside the record of conviction, it was improper to consider the police report.
B. Defendant Failed to Sustain His Burden of Proof as to the Value of the
Property Stolen
Our conclusion that the trial court erroneously relied upon hearsay that was not
part of the record of conviction in determining the value of the property stolen does not
end our inquiry. Proposition 47 was intended to reduce penalties for certain nonserious
and nonviolent property and drug offenses from wobblers or felonies to misdemeanors.
(T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 652.) A person who satisfies the
criteria in 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).)
But a defendant who files a petition under Proposition 47 bears the burden of
establishing he or she is eligible for misdemeanor resentencing. (People v. Sherow
(2015) 239 Cal.App.4th 875, 878–880 (Sherow).) This is premised on a well-settled
7
principle that a party has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense he is asserting. (Id. at p. 879.)
Thus, in seeking to have his crime of conviction reduced to a misdemeanor, the
petitioner has the initial burden of establishing eligibility for resentencing under section
1170.18, subdivision (a), such as whether the petitioner is currently serving a felony
sentence for a crime that would have been a misdemeanor had Proposition 47 been in
effect at the time the crime was committed. (Sherow, supra, 239 Cal.App.4th at p. 879.)
If the crime under consideration is a theft offense under sections 459.5 or 496, the
petitioner has the additional burden of proving the value of the property did not exceed
$950. (Sherow, at p. 879, italics omitted, quoting Couzens & Bigelow, Proposition 47:
“The Safe Neighborhoods and Schools Act” (Feb. 2015),
<www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 11, 2015] p. 40;
see also, People v. Rivas-Colon, supra, 241 Cal.App.4th at p. 449.)
In Sherow, the reviewing court concluded that a “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 offense was fatally defective.” (Sherow,
supra, 239 Cal.App.4th at p. 877.) Similarly, a defendant does not satisfy the burden
where the record of conviction does not establish he was entitled to resentencing.
(People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450.)
Here, the defendant’s petition alleged his belief that the value of the property taken
was less than $950, but at the hearing he pointed to no evidence in the record of
8
conviction to support that information or belief. Because the record of conviction
contains no information whatsoever about the value of the property stolen, the trial court
could not infer that defendant was eligible for resentencing. Thus, even if the court had
not relied upon the police report in denying the petition, its ruling would have been
proper.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
HOLLENHORST J.
McKINSTER J.
9
AI Brief
AI-generated · verify before citing
Holding. While the trial court erred by considering a police report outside the record of conviction to determine the value of stolen property, the denial of the resentencing petition was affirmed because the defendant failed to meet his burden of proving the stolen property's value was $950 or less.
Issues
Whether a trial court may consider information outside the record of conviction when determining eligibility for resentencing under Proposition 47.
Whether a defendant bears the burden of proving the value of stolen property did not exceed $950 to qualify for resentencing under Proposition 47.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court erred in considering information outside the record of conviction, Absent a Stipulation.”
“a defendant who files a petition under Proposition 47 bears the burden of establishing he or she is eligible for misdemeanor resentencing.”
“Because the record of conviction contains no information whatsoever about the value of the property stolen, the trial court could not infer that defendant was eligible for resentencing.”