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Filed 3/7/16 P. v. Willis 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

DONALD RAY WILLIS JR.,

Defendant and Appellant.

E063652

(Super.Ct.No. RIF1202867)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. 

Affirmed.

Arielle N. Bases 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, Arlene A. Sevidal, Collette C. 

Cavalier, and Joy N. Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
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I

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, defendant and appellant Donald Ray Willis, Jr., entered a plea of guilty to 

a charge that he had violated Penal Code section 4591in a commercial burglary.2 

Defendant also admitted a “strike” prior and an allegation that the crime was gang-related 

within the meaning of section 186.22, subdivision (b)(1)(A). He was sentenced to the 

negotiated term of five years in state prison. 

Following the passage of Proposition 47, entitled “the Safe Neighborhoods and 

Schools Act of 2014” (hereafter Proposition 47), which added section 1170.18 to the 

Penal Code, defendant, acting in propria persona, presented a handwritten “Petition for 

Modification of Sentence.” In this petition, defendant simply asserted that “I fall Under 

the New Law of Prop 47” and asserted that “The Property was Under 900 dollars.” 

(Capitalization and punctuation in original.)

The People opposed the motion using the standard court form, alleging that the 

property taken exceeded the statutory limit of $950 (“Loss 979.95”).

Defendant was not present at the hearing on April 17, 2015. His counsel indicated 

that “The only information I have from my client is he filed this petition pro per [sic]

indicating that the amount of loss was less than $900.” The prosecutor responded that “It 

was a Nintendo 3-D handheld game system video game that was valued at $590.97, a 

 

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 All subsequent statutory references are to the Penal Code.

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 The listed victim was Target stores.
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pink Nintendo 3-D handheld game system of $169.99 and a PS Vista 3-D handheld video 

game system of $299.99.” Questioned by the court, the prosecutor further affirmed that 

the listed figures were the retail prices for the items. Defendant’s counsel had no 

comment or objection.

The trial court denied the motion, stating “based on the information we have in 

RIF1202867 [the underlying case] the he [sic] petition is denied. Mr. Willis is ineligible 

based on both the amount of the loss, and on a couple of these burglaries, he’s ineligible 

because with the gang enhancement, they’re strike offenses anyway.”3

This appeal followed.

II

DISCUSSION

Section 1170.18 allows defendants convicted of felony offenses that were reduced 

to misdemeanors under other provisions of Proposition 47 to ask the court to resentence 

them as misdemeanants. One of the offenses previously listed as a felony was burglary 

under section 459. Proposition 47 added section 459.5, informally described as 

“shoplifting,” which makes it only a misdemeanor to enter a commercial building during 

business hours and either steal or intend to steal property with a value less than $950.4

 

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 The People concede that the trial court erred in believing that this circumstance 

made defendant ineligible for resentencing. Accordingly, we need not consider the point 

further.

4 “[S]hoplifting is defined as entering a commercial establishment with intent to 

commit larceny while that establishment is open during regular business hours, where the 

[footnote continued on next page]
4

Dispositive of this case is the decision in People v. Sherow (2015) 239 

Cal.App.4th 875, 879 (Sherow) holding that the defendant bears the burden of proof with 

respect to his or her eligibility for resentencing under section 1170.18. We agree with the 

analysis in that case and its result. 

Defendant argues that when the record of conviction is silent, a conviction must be 

presumed to be for the least serious offense possible, citing inter alia People v. Guerrero 

(1988) 44 Cal.3d 343, 352 (Guerrero). But Guerrero was decided in the context of the 

People’s burden to show that a prior conviction qualified as a serious felony for the 

purpose of imposing a five-year enhancement under section 667. We agree with Sherow

that under section 1170.18, where the defendant has already been convicted of a crime 

beyond a reasonable doubt, it is the defendant’s burden to show that he or she is eligible 

for more lenient treatment and that to apply any presumption against the People would be 

inappropriate in this context.

It is true, as defendant argues, that in Sherow the defendant’s petition apparently 

made no assertions or allegations about the value of the property taken, but instead 

lumped together five convictions for second degree burglary without differentiation or 

supporting information. (Sherow, supra, 239 Cal.App.4th at pp. 877, 880.) In contrast, 

the petition filed by defendant did contain the claim that the property taken had a value of 

less than $900. However, this was not evidence that the court could consider; the petition 

 

[footnote continued from previous page]

value of the property that is taken or intended to be taken does not exceed nine hundred 

fifty dollars ($950).” (§ 459.5, sub. (a).)
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was not even verified. As the court in Sherow commented, “[a] proper petition could 

certainly contain at least [the defendant’s] testimony about the nature of the items taken.” 

(Id. at p. 880.) 

Thus, defendant’s petition was wholly inadequate to establish even a prima facie 

case that he was eligible for resentencing.

Defendant argues that the trial court erred in accepting what he characterizes as 

the incompetent evidence that the property taken was worth $979.95. The People 

respond that the record from the trial of defendant’s codefendants in the same matter 

included testimony from Target representatives as to the price of the items taken. 

However, although the trial court’s comments did refer to the underlying criminal matter 

by case number, the record does not reflect that the court had before it anything other 

than the prosecutor’s hearsay and/or incompetent statements on value. The prosecutor’s 

response to the petition for resentencing did not include copies of the relevant transcript 

pages or a request for judicial notice. Hence, we cannot find that there was sufficient 

evidence to establish the value of the property in the People’s favor.5

 

5

 Respondent requests that we take judicial notice of the portions of the reporter’s 

transcript mentioned above. We deny the request because, for the reasons stated, they are 

not relevant to our decision. We express no opinion as to the extent to which the trial 

court could rely on evidence given at the codefendants’ trial; we note that defendant was 

not at that time a party to the case. We also note that at the time of the codefendants’ 

trial, the value of the property was irrelevant to the burglary conviction; all the People 

needed to do was establish that the defendants entered the store with intent to steal. The 

$950 was, however, relevant to any potential grand theft conviction, as at the time of trial 

the statute established that figure as the cutoff between grand and petty theft.
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Nevertheless, the point is not helpful to defendant because it was not the People’s

burden to show the value of the property. It was his, and he failed to carry his burden and 

establish eligibility.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.