Filed 6/22/16 P. v. Lenahan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Appellant ,

v.
JULIE E. LENAHAN,

Defendant and Respondent

. D068587

(Super. Ct. No. SCE321517 )

APPEAL from an order of the Superior Court of San Diego County, John M.
Thompson, Judge. Reversed.

Bonnie M. Dumanis, District Attorney, J ames E. Atkins, Craig E. Fisher,
Samantha Begovich and Craig E. Fisher , Deputy District Attorneys, for Plaintiff and
Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and
Respondent.2

The People appeal from an order of the superior court granting defendant Julie E.

Lenahan ' s petition (Pen. Code, § 1170.18, subd

. (b) ) to recall her sentence on her felony
conviction for receipt of stolen property ( id. , § 496, subd

. (a)) and to resentence her

pursuant to Penal Code section 117 0 .18 , subdivision ( a) , enacted as part of
Proposition 47

. 1 On appeal, t he People argue that the trial court erred , because Lenahan

did not meet her burden of establishing eligibility for Proposition 47 relief

— which in
this case required Lenahan to establish that the value of the stolen property did not

exceed $950

. We agree and reverse the order granting Lenahan ' s petition. The reversal
is without prejudice to Lenahan filing a new petition with evidentiary support for the
facts she must prove to be entitled to relief under Proposition 47

.

1 " 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 Section []

. . . 496

. . . of the Penal Code, as th [at] section [] ha [s] been amended or added by this act. " ( Pen. Code, § 1170.18 , subd. (a). Further undesignated statutory references are to the Penal Code.)

" 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 pursuant to Section []

. . . 496

. . . , [as] th [at] section [] ha [s] 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. In exercising its discretion, the court may consider all of the following:

. . . . " (§ 1170.18 , subd. (b).)3 I.

FACTUAL AND PROCEDURAL BACKGROUND 2

In an August 2012 information filed after the preliminary hearing , the district
attorney charged Lenahan and a co defendant with seven counts based on incidents that
occurred between late May and mid

- June 2012, as follows : burglary of five co mmercial
businesses (§ 459; counts 1

- 5); receiving stolen property (§ 496, subd. (a); count 6); and
possession of paraphernalia used for narcotics (Health & Saf. Code, former § 11364.1,

subd. (a); count 7).
In November 2012, Lenahan pleaded guilty to fe lony receipt of stolen property
(§ 496, subd. (a); count 6) and misdemeanor burglary (§ § 459 , 17, subd. (b)(4) ; count 1 ) , and the court granted the People ' s motion to dismiss the remaining counts. In her written
plea, signed under penalty of perjury, Lena han set forth the following factual basis for the
felony plea: " I was knowingly and unlawfully in possession of stolen property from the
burglaries of Wateridge Insurance Service s , Mane Event Salon, Countryside Property
Management, Sterling Electric and High Speed Design [as] outlined in the preliminary
hearing transcript. " D uring the court ' s inquiry regarding the factual basis for Lenahan ' s negotiated felony plea

— including, in particular, the identification of the stolen property

2 For the facts underlying the charges against Lenahan and crimes of which she was convicted, the People cite to the reporter ' s transcript from the preliminary hearing

. However, because that transcript was not before the trial court at the time it ruled on Lenahan ' s petition , we will not rely on it. ( People v. Croft (1955) 134 Cal.App.2d 800, 804 [appellate court considers only what was before trial court].) In her brief, Lenahan does not tell us anything about the facts underlying her convictions.4

in Lenahan ' s possessi on

— defense counsel and the prosecutor stipulated that the
transcript from the preliminary hearing would be included as additional evidence of the
factual basis for the plea.
At a December 2012 sentencing hearing o n the felony conviction , the court

susp ended imposition of sentence, placed Lenahan on three years ' formal probation , ordered her to serve 365 days in local custody and issued various fees, fines and

assessments

. On November 4, 2014, California voters approved Proposition 47, the Safe
Neighbo rhoods and Schools Act; and under the California Constitution (art. II, § 10,

subd. (a)), it became effect ive the following day. ( People v. Rivera (2015) 233
Cal.App.4th 1085, 1089 ( Rivera ).) " Proposition 47 makes certain drug

- and theft

- r elated
offenses misdemeanors, unless the offenses were committed by certain ineligible

defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors). " ( Rivera , at p

. 1091 .)
In May 201 5 , Lenahan petitioned to recall her sentence and to be resentenced

under Proposition 47

. 3 (§ 1170.18, subd. (a); see fn. 1, ante .) She submitted points and

authorities in support of her petition , and the court set the matter for a h earing in June

2015 . As relevant to the issue on appeal, Lenahan did not include any evidence with her

3 Lenahan ' s petition references Lenahan ' s " convict[ion] of a felony offense(s) ( PC459 ). " However, Lenahan ' s conviction of section 459 was a misdemeanor , and her points and authorities are directed only to her felony conviction of section 496, subdivision (a) . The trial court proceedings dealt only with Lenahan ' s conviction of section 496, subdivision (a). (But see fn. 7, post .)5

petition and points and authorities. The People submitt ed points and authorities in
opposition, arguing that Lenahan did not meet her initial burden of establishing eligibility

for relief under Proposition 47 . More specifically, the People contend ed that Lenahan
was not entitled to the requested relief because she did not establish that the value of the

stolen property in her possession that formed the basis of her conviction did not exceed
$950. As evidence i n support of their opposition, the People submitted copies of the text

of Proposition 47 and Lenahan ' s presentence probation report

. 4

At the June 2015 hearing, the court granted Lenahan ' s petition, specifically relying

on the following two fact ual findings: (1) Lenahan had not perpetrated the burglaries
from which the stolen property was obtained ; and (2) Lenahan was not ordered to pay
any victim restitution. 5 In making these findings, t h e court indicated that it had relied on
portions of the probation report and the written order sentencing Lenahan to formal

4 In their points and authorities, the People cite d only to two pages of the probation report in the context of demonstrating Lenahan ' s prior criminal record.

5 At the very beginning of the hearing, the court stated its inclination to grant Lenahan ' s petition, explaining : " The record, as I saw it from both of yo ur pleadings, suggested th e [co defendant] boyfriend was the burglar. The [stolen] property was found in an ap artment where [Lenahan] resided. There was nothing in the probation report as to her participation that indicate there was any restitution owed. " Upon granting Lenahan ' s petition, the court confirmed its earlier reasoning: " The facts of this particular case, in this Court ' s opinion, warrant the relief sought. As I indicated, there is little doubt from my re ading of the facts that [the co defendant] was the perpetrator of the burglaries; [Lenahan] was residing at the property; and [pursuant] to a Fourth [Amendment] waiver search the [stolen] property is discovered. And [it] would appear to me that at the sentencing, determinations were made that [Lenahan] should not be re sponsible for the monetary loss. "6

probation. 6 By order filed June 10, 2015, the court granted the petition, resentenced
Lenahan to probation and designated Lenahan ' s prior felony conviction a misdemeanor. 7
In July 2015, t he People filed a motion for reconsideration of the order granting

Lenahan ' s petition. In support of this motion, the People submitted as evidence the
transcript from Lenahan ' s August 2012 prelimi nary hearing, Lenahan ' s November 2012
change of plea form and a transcript from the June 2015 hearing at which the court
granted Lenahan ' s petition. Lenahan filed written opposition, and the court denied the
motion in July 2015. The parties raise no arguments on appeal with regard to the
People ' s motion for reconsideration.

T he People timely appealed from the order granting Lenahan ' s petition.

6 The probation report states that Lenahan denied committing the burglaries, although she admitted knowing that the stolen property was in her residence. T he probation report contain s a description of the property stolen from the five businesses, some of which was recovered in a search of Lenahan ' s residence , including three computers, computer equipment and a safe . T he report states that none of the victims had formally responded to letters and telephone calls fro m probation regarding restitution. The sentencing order indicates that the court retained jurisdiction to award restitution if any of the victims reported a loss.

7 The minutes designate " count 6 PC 646(a) " a misdemeanor. However, Lenahan was not ch arged with violating section 646; section 646 makes solicitation of personal injury claims with the intent to sue out of state a misdemeanor, not a felony; section 646 does not have a subdivision (a); and, as discussed ante , count 6 of the information char ged Lenahan with violating section 496, subdivision (a), receiving stolen property. Without mentioning section 646, the parties have briefed this appeal with the understanding that the trial court designated as a misdemeanor Lenahan ' s felony conviction of section 496, subdivision (a) , which is count 6 of the information. We shall do the same.7 II.

DISCUSSION
In determining whether the trial court properly applied section 1170.18,

subdivision (a), we must decide , first, who had the burden of establishing the value of the
stolen property that formed the basis of Lenahan ' s felony conviction and , second, whether
that party met the required burden. As we explain, the initial b urden was on Lenahan,

who did not meet it.

A. Proposition 47
As relevant to this appeal, Proposition 47 amended section 496. ( Rivera , supra , 233 Cal.App.4th at p. 1091.) In part, recently amended section 496, subdivision (a)
provides:

" Every person wh o buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholdin g any property from the owner, knowing the property to be so stolen or obtained, 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 prope rty 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

. " 8 ( Ibid

. , i talics added.) ( See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 9, p. 72 .)

8 Prior to Proposition 47 , the last quoted sentence provided: " However, if the district attorney or the grand jury determines that this action would be in the in terests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed nine hundred fifty dollars ($950), specify in the accusatory pleading that the offense shall be a misdemeanor, punishable onl y by imprisonment in a county jail not exceeding one year. " (§ 496, former subd. (a); Stats. 2011, c h

. 15, § 372.)8

In addition to other relief, Proposition 47 also created a procedure whereby a

person who is serving a felony sentence for an offense that became a misdemeanor under
Proposition 47 may petition for a recall of that sentence and re quest resentencing under
the applicable statute that w as added or amended by Proposition 47. (§ 1170.18,

subd. (a); Rivera , supra , 233 Cal.App.4th at p. 1092.) P ursuant to th is procedure , Lenahan applied to the trial court to recall her felony sentence f or receiving stolen

property and to be resentenced under section 496, subdivision (a), as amended by
Proposition 47

.
B. Standards on Appeal
In interpreting a ballot initiative measure, we apply the same principles as we do
in construing a statute enacted by the Legislature. ( People v. Arroyo (201 6 ) 62 Cal.4th
589, 593 (

Arroyo ) [ Proposition 21, which " expanded prosecutorial authority to file
charges against minors in adult court " ].) We begin by considering the actual language of

the initiative , giving its words their usual and ordinary meaning. ( Arroyo , at p. 593.) We

construe the words of a n initiative as a whole and within the overall statutory scheme to

effectuate the voters ' intent. ( Ibid. ) If the language is ambiguous, we look to other

indicia of the intent of the electorate, including the analyses and arguments in the official
ballot pamphlet. ( Ibid. ) We will not interpret ambiguities in initiative language in a

defendant ' s favor if that interpretation would create an absurd result o r be inconsistent

with the voters ' intent

. ( See People v. Cruz (1996) 13 Cal.4th 764, 782

- 783.)

Where an appeal involves only the interpretation of a statute enacted as part of a
voter initiative, the issue on appeal is a legal one , which we review de no vo. ( Arroyo ,9

supra , 62 Cal.4th at p. 593.) Where the trial court applies disputed facts to such a statute,
we review the factual findings for substantial evidence and the application of those facts
to the statute de novo. ( Hermosa Beach Stop Oil Coaliti on v. City of Hermosa Beach
(2001) 86 Cal.App.4th 534, 549.) A su bstantial evidence inquiry examines the record in
a light most favorable to the ruling and upholds it " ' if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of fact could have relied in
reaching the conclusion in question

. ' " ( People v. Fuiava (2012) 53 Cal.4th 622, 711 , italics omitted.)

C. Analysis

The first se ntence of section 496, subdivision (a) defines the crime of receiving
stolen property: " Every person who buys or receives any property that has been stolen or
that has been obtained in any manner constituting theft or extortion, knowing the property

to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing,
selling, or withholding any property from the owner, knowing the property to be so stolen
or obtained, shall be punished by imprisonment in a county jail for not more than on e year, or imprisonment pursuant to subdivision (h) of Section 1170. " ( Ibid

. ) The second

sentence of section 496, subdivision (a)

— i.e., the language enacted as part of
Proposition 47 and at issue in this appeal

— deals with the value of the stolen prop erty received and provides in part: " However, if the value of the property does not exceed nine hundred fifty dollars ($950) , the offense shall be a misdemeanor

. . . . " ( Ibid

. , i talics
added.)10

Lenahan presented no evidence in support of her petition, a rguing only that her

" record of conviction does not state that the value of the property exceeded $950. "
Lenahan did not suggest what evidence she contended comprise d her " record of

conviction. "
At the time she filed her petition in May 2015 , section 1170.18 had been e ffective

for only six months , and subdivision (a) is silent as to who has the initial burden of
establishing a petitioning defendant ' s eligibility for resentencing. (See fn. 1, ante .) Even
by June 2015, when the trial court ruled on Len ahan ' s petition, there were no appellate
opinions to provide guidance on this issue.
On appeal, the People argue persuasively that Lenahan, as the petitioning

def endant, had the initial burden of proving eligibility for resentencing, including
specificall y the requirement that Lenahan establish that the value of the stolen property in
her possession up on which her conviction was based did not exceed $950. Within the
last year, at least four final appellate opinions have held that this initial burden is bo rne by the petitioning defendant. ( People v. Sherow (20 15) 239 Cal.App.4th 875, 878
( Sherow ) [ " a petitioner for resentencing under Proposition 47 must establish his or her
eligibility for such resentencing " ]; People v. Rivas

- Colon (2015) 241 Cal.App.4th 444,

449

- 450 [same]; People v. Perkins (2016) 244 Cal.App.4th 129, 136

- 137 ( Perkins )
[same] ; People v. Bush (2016) 245 Cal.App.4th 992, 1007

- 1008 [same] .) As we
explained in Sherow , where (as here) " ' the crime under consideration is a theft offense

under section []

. . . 496, the petitioner will have the additional burden of proving the value of the property did not exceed $950. ' " ( Sherow , at p

. 879.)11

We reject Lenahan ' s suggestions that Sherow and Rivas

- Colon (and by implicati on
Perkins and Bush , which were decided after briefing in the present appeal ) were wrongly

decided or that the prosecution must disprove the defendant ' s entitlement to
Proposition 47 relief once a petitioning defendant shows that she was convicted of a
felony that is eligible for reduction to a misdemeanor

. As we explain, Lenahan had the
initial burden of establishing eligibility for resentencing under Proposition 47 , and she

did not meet her burden here.

1. Lenahan Had the Initial Burden of Establishin g Eligibility for Resentencing Under Proposition 47
Lenahan posits that (1) because Proposition 36 (§ 1170.126, subd. (b)) and
Proposition 47 (§ 1170.18, subd. (a)) both decrease existing sentences and use similar
language to define eligibility for resen tencing without stating who has the initial burden
of establishing eligibility for resentencing and (2) because Proposition 36 requires the
prosecution to establish that a petitioning defendant is ineligible for resentencing, the
same procedure should be e mployed under Proposition 47

. " 'W hen legislation has been
judicially construed and a subsequent statute on a similar subject uses identical or
substantially similar language, the usual presumption is that the Legislature [or the
voters] intended the same construction, unless a contrary intent clearly appears. ' "
( Rivera , supra , 233 Cal.App.4th at p. 1100 .)

We agree with Lenahan that the procedures employed under the two propositions

— which include who has the burden at different stages

— are similar. We disagree,
however, with her suggestion that the prosecution has the burden of establishing that a12

petitioning defendant is ineligible for resentencing. Rather, u nder both Proposition 36

and Proposition 47 , the petitioning defendant has the initial bu rden of establishing
eligibility, and if that burden is met, the prosecution then has the opportunity to establish
ineligibility on other grounds.
Under Proposition 36, a defendant who has two or more prior serious and/or
violent felonies, known as " strikes, " is no longer necessarily subject to an enhanced
sentence on a conviction for a third strike offense, if the third conviction is not for a
serious or violent felony. ( People v. Bradford (2014) 227 Cal. App.4th 1322, 1327

- 1328
( Bradford ).) In ena cting section 1170.126 as part of Proposition 36, the voters did not

intend to benefit all third strike offenders whose third strike was not for a serious or
violent felony, but only those who were perceived as nondangerous or posing little or no

risk to t he public. ( People v. Arevalo (2016) 244 Cal.App.4th 836, 846 ( Arevalo ).)

Under Proposition 36, a person serving an indeterminate term of life imprisonment
imposed under section 667, subdivision(e)( 2) , or section 1170.12, subdivision (c) , for a
conviction of a felony that is not defined as serious and/or violent by section 667.5,

su bdivision (c) , or section 1192.7, subdivision (c) , may petition for resentencing.
(§ 1170.126, subds. (b), (e)(1).) Thus, the Proposition 36 petitioning defen dant has the

initial burden of establishing eligibility

— namely, the requisite conviction and sentence
set forth in section 1170.126, subdivision (e) . (§ 1170.126, subd. (b).) The prosecution13

then has the opportunity to oppose the petition by establishi ng that the petitioning

defendant is ineligible on various grounds. 9 (§ 1170.126, subd. (e)(2)

- (3).)

Under Proposition 47 , a person serving a sentence for a conviction of a felony

" who would have been guilty of a misdemeanor under [ Proposition 47 ] had
[ Proposition 47 ] been in effect at the time of the offense " may petition for resentencing.
(§ 1170.18, subd. (a).) By this language, the voters did not intend to benefit all offenders
serving a sentence for a felony theft (or drug) conviction, but only t hose " who would
have been guilty of a misdemeanor " under the various statutes that were added or
amended by Proposition 47 . As in Proposition 36, the Proposition 47 petitioning

defendant has the initial burden of establishing eligibility

— which, under Pr oposition 47 , is " guilt[] of a misdemeanor. " (§ 1170.18, subd. (a).) Also as in Proposition 36, the
prosecution then has the opportunity to establish that the petitioning defendant is
ineligible for resentencing. This may be accomplished either (1) by r ebutting the
petitioning defendant ' s evidence, thereby demonstrating that the petitioning defendant

would not have been guilty of a misdemeanor had Proposition 47 been in effect at the

9 In addition, the court may still deny relief to an otherwise eligible petitioning defendant if the court determines, based on evidence f rom any source, that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126, subds. (f) & (g) (1)

- (3) ; Arevalo , supra , 244 Cal.App.4th at p. 852.)14

time of the offense, or (2) by demonstrating that the petitioning defendant suffered a

conviction of one or more of the offenses specified in section 1170.18, subdivision (i). 10
In comparing Proposition 36 and Proposition 47 , Lenah an further suggests that the

p arty with the initial burden of establishing eligibility for resentencing under
Proposition 47 is limited to evidence from the record of conviction

. 11 W e disagree.

Under Proposition 36, a petitioning defendant is limited to e vidence contained in the
record of conviction ( Bradford , supra , 227 Cal.App.4th at pp. 1327, 1332), because " ' the
relevant inquiry in deciding whether a particular prior conviction qualifies as a serious
felony for California sentencing purposes is limite d to an examination of the record of the
prior criminal proceeding to determine the nature or basis of the crime of which the
defendant was convicted ' " ( People v. McGee (2006) 38 Cal.4th 682, 691 [consideration
whether a conviction from another jurisdiction is a " serious felony " under Three Strikes
law, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2)]).

10 Finally , the court may still deny relief to an otherwise eligible petitioning defendant if the court determines, based on evidence from any source , that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b)(1)

- (3).) This appeal (like Sherow , Rivas

- Colon , Perkins and Bush ) involves only the initial burden to establish eligibility for resentencing. Accordingly, we express no view as to who has either the ultimate burden or the standard of proof for entitlement to resentenc ing.

11 The parties have not cited, and our own research has not disclosed, any authority that explicitly lists or describes the documents that comprise the record of conviction. That said, we are guided by our high court ' s explanation that a " ' record of conviction ' " consists of documents in the record that reliably " ' reflect[] the facts of the offense for which the defendant was convicted ' " and appear s to be limited to proceedings at and before the adjudication of guilt, whether by plea or verdict. ( People v. Trujillo (2006) 40 Cal.4th 165, 177, 179 [Three Str ikes law, § 667, subds. (b)

- (i) ].)15

In contrast, under Proposition 47 the relevant inquiry on demonstrati ng eligibility

is " guilt[] of a misdemeanor " (§ 1170.18, subd. (a)), which often cannot be established
merely from the record of conviction of the felony. The reason for this is that, prior to
Proposition 47 , where a defendant was convicted of a felony, t he facts necessary to
establish that the petitioning defendant was guilty of a misdemeanor enacted or amended
by Proposition 47 likely would have been irrelevant in charging the defendant with a pre

Proposition 47 felony. 12 Thus, for this initial burden a petitioning defendant is entitled
to present evidence of sufficient facts from any source to establish the requisite guilt of a
misdemeanor. ( Perkins , supra , 244 Cal.App.4th at p. 140 [any probative evidence];

Sherow , supra , 239 Cal.App.4th at p. 880.)

I n summary, Lenahan had the initial burden of demonstrating eligibility for
resentencing under Proposition 47 from any source of admissible evidence.

2. Lenahan Did Not Meet Her Initial Burden of Establishing Eligibility for Resentencing Under Proposition 47 Based on the probation report , the trial court found that Lenahan had not
perpetrated the burglaries from which the stolen property was obtained ; and based on the
order sentencing Lenahan on her felony conviction for receiving stolen prope rty, t he trial

court found that Lenahan was not ordered to pay any victim restitution. Given these two

12 In the case of receiving stolen property, for example, the only fact necessary

— indeed, the only fact available

— to establish that a petitioning defenda nt " would have been guilty of a misdemeanor " under Proposition 47 is that the value of the stolen property did not exceed $950. (§ 496, subd. (a).) Prior to Proposition 47 , however, the value of the property was not at issue where the defendant was charged with a felony. (§ 496, former subd. (a).)16

findings, the court ruled that Lenahan was entitled to relief under Proposition 47

. However, the court erred in basing its ruling on either of these fi ndings.

The f irst finding (that Lenahan had not committed the burglaries) is not supported
by substantial evidence, since the trial court based the finding on statements in the
probation report

— which is not evidence ( People v. Overton (1961) 190 Cal.App .2d
369, 372 [ " a probation report

. . . is not evidence " ] )

. In any event, as a matter of law,

Lenahan ' s participation in the burglaries that resulted in the stolen property that were in

Lenahan ' s possession is not relevant to her eligibility for Proposition 47 relief under the

standards contained in section 1170 .18 , subdivision (a)

. 13 The sole issue i s whether the
value of the stolen property in Lenahan ' s possession exceeded $950, not whether Lenahan
participated in stealing the property.

The tri al court never made a n actual finding that the value of the stolen property
did not exceed $950. Rather, in its second finding, the court found merely that Lenahan
was not required to pay victim restitution as part of her felony sentence, implying that

su ch evidence substantiates a finding that the value of the stolen property was less than

$950. 14 However, even consi dering inferences from evidence in support of the trial

court ' s finding as we must ( People v. Elizalde (2015) 61 Cal.4th 523, 530 ), we cannot

13 In addition, g iven that s ection 496, subdivision (a) provides that " no person may be convicted both pursuant to this section [receiving stolen property] and of the theft of the same property, " there is no reason a sentencing court should consider the theft of the property at issue in a conviction for rec eipt of the stolen property.

14 Defense counsel argued: " It seems to me [a] very fair and logical inference to say, well, if there is no restitution, t hen the value of the property at issue is de minimis. "17

infer from the lack of a victim restitution award in the sentencing order that the value of
the stolen property in Lenahan ' s possession was less than $950

. Because the order
reserved jurisdiction

— " R estitution to be determined if [ any ] victim report s a loss "
(italics added)

— the lack of a victim restitution award implie s only that proof of the
amount of the victims ' losses had not been established , not that the amount of the victims '

losses did not exceed $950

. Accordingly, the court ' s implied findi ng that the value of the
stolen property in Lenahan ' s possession was less than $950 is not supported by

substantial evidence.
For these reasons, Lenahan did not meet her burden of establishing eligibility for
resentencing under Proposition 47

.
D. Reversal Without Prejudice

In Sherow , supra , 239 Cal.App.4th 875, we affirmed the order denying the

defendant ' s section 1170.18, subdivision (a) petition on the basis that the defendant did

not meet his initial burden of providing evidence of his eligibility for Proposition 47

relief

— in particular, evidence that the value of the property at issue did not exceed $950

— on his felony conviction of certain counts of secon d degree burglary under

section 459. ( Sherow , at p p. 877, 879, 881.) The affirmance was " with out prejudice to
subsequent consideration of a properly filed petition. " ( Id. at p

. 881.)

In Perkins , supra , 244 Cal.App.4th 129, on facts almost identical to those in the
present appeal, our colleagues in Division Two affirmed the trial court ' s order de nying

the defendant ' s section 1170.18, subdivision (a) petition on the basis that t he petitioning

defendant did not meet his initial burden of providing evidence of his eligibility for18

Proposition 47 relief

— in particular, evidence that the value of the p roperty at issue did
not exceed $950

— on his felony conviction for receiving stolen property under

section 496, subdivision (a) . ( Perkins , at p p

. 134

- 135, 137.) However, s ince
Proposition 47 is silent as to burdens associated with petitioning for relief and since at the
time the defendant filed his petition no appellate court had provided guidance to the trial
courts or the litigants as to the burden of establishing eligibility, following Sherow the

affirmance was without prejudice to the defendant filin g a new petition that offered

evidence of his eligibility. ( Perkins , at p

. 142.)

W e agree with the reasoning in Perkins and the result s reached in Sherow and

Perkins . Accordingly, our reversal of the order granting Lenahan ' s section 1170.18,

subdivision (a) petition is without prejudice to the superior court ' s consideration of a
subsequent petition that contains evidence of Lenahan ' s eligibility for relief.
The Attorney General asks that we establish an " ' All Available Evidence ' "

standard for all of the superior court ' s determination s " during the eligibility process. " We

decline to consider a rule that applies to all stages of all Proposition 47 petitions

.
Because we have no record or trial court decision on which to base such a ruling , an opinion c ontaining such a ruling would be advisory and, accordingly, beyond the fun ction

and jurisdiction of this court. ( People v. Roberts ( 1992) 2 Cal.4th 271, 336, fn. 18.)
Instead, we agree with Perkins ' s admonition to the defendant in that case and
apply i t here: In any subsequent attempt to establish her initial eligibility to be

resentenc ed under Proposition 47

— namely, in attempting to show that she would have
been guilty of a misdemeanor under section 469, subdivision (a) (as amended by19

Proposition 47 )

— Lenahan " should describe the stolen property and attach some
evidence, whether a declaration, court documents , record citations, or other probative
evidence showing [s]he is eligible for relief. " 15 ( Perkins , supra , 244 C al. A pp. 4th at

p. 140.)

DISPOSI TION

We reverse the June 10, 2015 order granting Lenahan ' s petition to recall the
sentence on her felony conviction for receiving stolen property, to resentence Lenahan

and to designate the felony conviction as a misdemeanor

. This reversal is without

pre judice to the superior court ' s consideration of a subsequent petition by Lenahan that
offers evidence of her eligibility for the requested relief.

IRION, J.

WE CONCUR:

M C DONALD, Acting P. J.

AARON, J.

15 We express no opinion as to whether such evidence is available, how the People might respond or whether such a petition might be successful.