into check cashing establishment with intent to commit theft by false pretenses by
cashing a forged check was an intent to commit "larceny"].) Until our high court resolves
this issue, we follow the view that entering a bank with intent to commit theft by false
pretenses by cashing a forged check meets the definition of shoplifting under section
459.5.
C. Remaining Elements
As we discussed, a bank is a commercial establishment and Hudson's actions
qualified as larceny. (Pt. II.A & B, ante.) To be eligible for resentencing, however, the
entry into the establishment must have been during regular business hours and the value
of the property taken or intended to be taken must not have exceeded $950. (§ 459.5,
subd. (a).) The parties do not address whether Hudson entered the bank during its normal
business hours. Regarding the value of the property he intended to take, Hudson asserts
the trial court erred when it found that he intended to take more than $950 because the
trial court came to this conclusion by looking at information in the postconviction probation
report and thus outside the record of conviction. He contends the record of conviction did
9
not disclose sufficient facts establishing the nature of the offense or the value of the
property; thus, the trial court was required to presume that the conviction was for the
"least offense punishable" which, here, would be misdemeanor shoplifting.
Section 1170.18 is silent as to which party has the burden of establishing
eligibility for resentencing. It is well established, however, that a party seeking relief
typically carries the burden of proof as to each fact necessary to the party's claim for
relief, unless a different burden is specifically assigned by law. (Evid. Code, § 500.)
Accordingly, the defendant bears the burden of demonstrating eligibility for relief under
the Act. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow); People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 448-449.)
Here, the record shows that Hudson pled guilty to second degree commercial
burglary. His guilty plea "constitutes an admission of every element of the offense
charged and constitutes a conclusive admission of guilt" and "obviate[d] the need for the
prosecution to come forward with any evidence." (People v. Turner (1985) 171
Cal.App.3d 116, 125.) Thus, the record of conviction establishes Hudson was guilty of
second degree burglary.
In Sherow, we held that the petitioner has the burden of presenting evidence
showing eligibility for resentencing under the Act. (Sherow, supra, 239 Cal.App.4th at
p. 880.) Hudson presented no evidence below that he entered the bank during its regular
business hours; thus, he failed to meet his initial burden of showing eligibility for
resentencing. (§ 459.5, subd. (a).) Hudson similarly failed to carry his burden of
showing the value of the property he intended to take did not exceed $950. (Ibid.) On
10
both elements, Hudson could have presented new evidence to establish eligibility for
resentencing. (Sherow, supra, at pp. 879-880.)
Hudson asserts Sherow, supra, 239 Cal.App.4th 875 was wrongly decided as it
suggests that the trial court is empowered to look beyond the record of conviction in
determining whether a petitioner's offense qualifies for relief under the Act. To the
extent Hudson contends a petitioner under the Act is limited to the record of conviction
to prove sentencing eligibility this argument works against him in situations where, as
here, the record is silent. (People v. Perkins (2016) 244 Cal.App.4th 129, 140, fn. 5 [in
many cases, "the value of the property was not important at the time of conviction, so the
record may not contain sufficient evidence to determine its value"; petitioners may seek
to meet their burden on this issue by "submit[ting] extra-record evidence probative of the
value when they file their petitions for resentencing"].) Sherow does not address a
situation where the People went outside the record of conviction to prove resentencing
eligibility. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 ["[I]t is axiomatic that cases
are not authority for propositions not considered."].)
Finally, contrary to Hudson's assertion, on this silent record we cannot presume
that his conviction was for the "least offense punishable" which, here, would be a
misdemeanor shoplifting. For this proposition, Hudson relies on People v. Williams
(1990) 222 Cal.App.3d 911 (Williams). Williams held that "[i]n determining the nature
of a prior conviction allegation, the 'court may look to the entire record of the
conviction . . . but when the record does not disclose any of the facts of the offense
11
actually committed, the court will presume that the prior conviction was for the least
offense punishable . . . .' [Citation.]" (Id. at p. 915.)
Williams is inapposite because it concerned the use of multiple hearsay statements
in a probation report in the context of determining beyond a reasonable doubt whether a
prior conviction allegation was true for sentence enhancement purposes under the Three
Strikes law. (Williams, supra, 222 Cal.App.3d at pp. 917-918.) In this situation, the
prosecution has the burden of establishing enhancements apply. (People v. Towers
(2007) 150 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."].) On a silent record, the prosecution cannot meet its burden to show
the nature of the prior offense triggered a sentence enhancement. Here, the issue before
the trial court was not a sentence enhancement that required the People to present proof
beyond a reasonable doubt.
Based on these conclusions, we need not, and therefore do not, address Hudson's
argument that the trial court erred by relying on evidence outside the record of conviction
presented by the People.
III
FORGERY CONVICTION
"Every person who possesses any completed check, money order, traveler's check,
warrant, or county order, whether real or fictitious, with the intent to utter or pass or
facilitate the utterance or passage of the same, in order to defraud any person, is guilty of
forgery." (§ 475, subd. (c).) Under the Act, "any person who is guilty of forgery relating
12
to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where
the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money
order does not exceed nine hundred fifty dollars ($950)," is guilty of a misdemeanor,
subject to exceptions not relevant here. (§ 473, subd. (b).)
Hudson asserts nothing in the record of conviction supported a finding that the
value of the check underlying his forgery conviction exceeded $950. In any event, he
contends the legislative intent behind the Act as well as settled law establishes that a
forged instrument has only intrinsic value, such that the term "value" as used in section
473 must be interpreted to mean the value of the forgery and not the amount written on
the face of the forged instrument.
Again, Hudson failed to carry his burden of showing that the value of the check
did not exceed $950. (Sherow, supra, 239 Cal.App.4th at p. 879.) Thus, we do not
address his remaining argument that the term "value" as used in section 473 must be
construed to mean the value of the forgery and not the amount written on the face of the
check.
13
DISPOSITION
The order denying Hudson's petition for recall of his felony prison sentences and
for resentencing is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant seeking resentencing under Proposition 47 bears the burden of proving eligibility, and because the defendant failed to present evidence that his offenses met the statutory criteria, the trial court properly denied his petition.
Issues
Whether a bank qualifies as a 'commercial establishment' under Penal Code section 459.5.
Whether a defendant seeking resentencing under Proposition 47 bears the burden of proving eligibility.
Whether a court must presume a conviction was for the 'least offense punishable' when the record of conviction is silent regarding the value of the property involved.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the defendant bears the burden of demonstrating eligibility for relief under the Act.”
“Hudson presented no evidence below that he entered the bank during its regular business hours; thus, he failed to meet his initial burden of showing eligibility for resentencing.”
“Hudson similarly failed to carry his burden of showing the value of the property he intended to take did not exceed $950.”