Filed 6/22/16 P. v. Lenahan CA4/1

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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, James 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 1170.18, subdivision (a), enacted as part of 

Proposition 47.1 On appeal, the 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 BACKGROUND2

In an August 2012 information filed after the preliminary hearing, the district 

attorney charged Lenahan and a codefendant with seven counts based on incidents that 

occurred between late May and mid-June 2012, as follows: burglary of five commercial 

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 felony 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, Lenahan 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 Services, Mane Event Salon, Countryside Property 

Management, Sterling Electric and High Speed Design [as] outlined in the preliminary 

hearing transcript." During 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 possession — 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 on the felony conviction, the court 

suspended 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 

Neighborhoods and Schools Act; and under the California Constitution (art. II, § 10, 

subd. (a)), it became effective the following day. (People v. Rivera (2015) 233 

Cal.App.4th 1085, 1089 (Rivera).) "Proposition 47 makes certain drug- and theft-related 

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 2015, 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 hearing 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 submitted 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 contended 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 in 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 factual 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, the 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 cited 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 your pleadings, 

suggested the [codefendant] boyfriend was the burglar. The [stolen] property was found 

in an apartment 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 reading of the facts that [the codefendant] 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 responsible 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, the 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 preliminary 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.

The 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. 

The probation report contains 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. The report states that none of the 

victims had formally responded to letters and telephone calls from 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 charged 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 

charged 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 burden 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 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 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."8 (Ibid., italics 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 interests 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 only by imprisonment in a 

county jail not exceeding one year." (§ 496, former subd. (a); Stats. 2011, ch. 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 request resentencing under 

the applicable statute that was added or amended by Proposition 47. (§ 1170.18, 

subd. (a); Rivera, supra, 233 Cal.App.4th at p. 1092.) Pursuant to this procedure, 

Lenahan applied to the trial court to recall her felony sentence for 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 (2016) 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 an 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 or 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 novo. (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 Coalition v. City of Hermosa Beach

(2001) 86 Cal.App.4th 534, 549.) A substantial 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 sentence 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 one 

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 property 

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., italics 

added.)
10

Lenahan presented no evidence in support of her petition, arguing 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 comprised her "record of 

conviction."

At the time she filed her petition in May 2015, section 1170.18 had been effective 

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 Lenahan's petition, there were no appellate 

opinions to provide guidance on this issue.

On appeal, the People argue persuasively that Lenahan, as the petitioning 

defendant, had the initial burden of proving eligibility for resentencing, including 

specifically the requirement that Lenahan establish that the value of the stolen property in 

her possession upon 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 borne 

by the petitioning defendant. (People v. Sherow (2015) 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 implication

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 Establishing 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 resentencing 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 employed under Proposition 47. " 'When 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 a 
12

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

and Proposition 47, the petitioning defendant has the initial burden 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 enacting 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 the 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, 

subdivision (c), or section 1192.7, subdivision (c), may petition for resentencing. 

(§ 1170.126, subds. (b), (e)(1).) Thus, the Proposition 36 petitioning defendant 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 prosecution 
13

then has the opportunity to oppose the petition by establishing 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 those "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 Proposition 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 rebutting 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 from 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, Lenahan further suggests that the 

party with the initial burden of establishing eligibility for resentencing under 

Proposition 47 is limited to evidence from the record of conviction.11 We disagree. 

Under Proposition 36, a petitioning defendant is limited to evidence 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 limited 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 

resentencing.

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 appears 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 Strikes law, § 667, subds. (b)-(i)].)
15

In contrast, under Proposition 47 the relevant inquiry on demonstrating 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, the 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 preProposition 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.)

In 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 property, the 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 defendant "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 findings.

The first 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 is whether the 

value of the stolen property in Lenahan's possession exceeded $950, not whether Lenahan 

participated in stealing the property.

The trial court never made an 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 

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

$950.14 However, even considering 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, given that section 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 receipt 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, then 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 — "Restitution to be determined if [any] victim reports a loss"

(italics added) — the lack of a victim restitution award implies 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 finding 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 second degree burglary under 

section 459. (Sherow, at pp. 877, 879, 881.) The affirmance was "without 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 denying 

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

defendant did not meet his initial burden of providing evidence of his eligibility for 
18

Proposition 47 relief — in particular, evidence that the value of the property at issue did 

not exceed $950 — on his felony conviction for receiving stolen property under 

section 496, subdivision (a). (Perkins, at pp. 134-135, 137.) However, since 

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 filing a new petition that offered 

evidence of his eligibility. (Perkins, at p. 142.)

We agree with the reasoning in Perkins and the results 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 determinations "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 containing such a ruling would be advisory and, accordingly, beyond the function

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 it here: In any subsequent attempt to establish her initial eligibility to be 

resentenced under Proposition 47 — namely, in attempting to show that she would have 

been guilty of a misdemeanor under section 469, subdivision (a) (as amended by 
19

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 Cal.App.4th at 

p. 140.) 

DISPOSITION

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 

prejudice 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:

MCDONALD, 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.