Filed 5/ 2/16 P. v. Dickson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. THOMAS DICKSON, JR. , Defendant and Appellant. G05 1884 (Super. Ct. No. 04HF1585 )

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County,
Kazuharu Makino , Judge. (Retired j udge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with out prejudice

.

Jared G. Coleman , 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, Charles C. Ragland , Brend o n W. Marshall and Warren J. Williams Deputy Attorney s General, for Plaintiff and Respondent.2 Defendant Thomas Dickson, Jr. , a ppeals from a n order denying in part his peti tion to have his felony burglary conviction s redesignated as misdemeanor petty thefts
under Proposition 47. Defendant contends the court erroneously placed the burden of
prov ing eligibility on him , and mistakenly concluded his felony burglary convictions do

not qualify fo r reclassification as misdemeanor s. We dis agree and affirm the order

.

FACTS AND PROCEDURAL HISTORY
In 20 05, a jury convicted defendant of six felony counts of second degree burglary ( Pen. Code §§ 459, 460, subd. (b) , all subsequent statutory references are to this
code ) , and t he court sentenced him to 150 years to life in prison

. In 2013, t he court granted defendant relief under section 1 170.126 and resentenced him to 10 years eight
months in prison.

In 201 5 , defendant filed a single p age form pe tition for relief under section
1170.18 , subdivisions (f) and (g). The petition was not supported by any documentation, and revealed nothing about the circumstances surrounding the offense s.

At the hearing , the prosecutor did not oppose the petition as to count 3 , but never explained why. As to counts 1, 2, 4, 5 and 6 , the prosecutor said : “ w e’re opposed
as to the areas in which the burglaries that were committed were places not open to the general public. They were office buildings in areas where the employer or the employee was at their personal desk. ” The court asked, “Are [those ] all the same location same time?” The prosecutor replied , “Your honor, they’re all different businesses within a business complex.” C ounsel agreed the loss on each was less than $950.

Near the end of the hearing , the court stated: “Well, based on what I have so far, I do not think these qualify. Now I wouldn’t nec essarily say that they wouldn’t [qualify] depending on the specific facts. It’s possible that they would. But based on what I have heard so far I would say they don’t qualify.” Minutes later t he court denied the petition as t o counts 1, 2, 4, 5 and 6 , but granted it as to count 3, all without further explanation and without making any factual findings

.3 DISCUSSION Defendant’s primary complaint on appeal is that the court erroneously placed the burden of proving eligibility for Proposition 47 relief on him

. Not so. In People v. Sherow (2015) 239 Cal.App.4th 875, 880 ( Sherow ), also a case involving denial
of a Proposition 47 petition seeking to reduce felony second degree burglary convictions

to misdemeanor petty thefts , Division One of this court placed the burden of proving eligibility for resentencing squarely on the defendant. (Accord, People v. Rivas

- Colon (2015) 24 1 Cal.App.4th 444.)

We agree with the reasoning of Sherow

. A defendant who seeks re lief
under sec tion 1170.18 has already been convicted of a felony. As the moving party, the defendant has the burden of proving he is eligible for relief. R esentencing on second degree burglary is not automatic. Depending on the circumstances surrounding the offense, the defendant may or may not be eligible for re lief

. If he can prove he entered a
commercial establishment during regular business hours and took property worth $950 or less , the offense is s hoplifting (§ 459.5) and he is eligible for re lief ; otherwise n ot.

We reject d efendant ’s argument Sherow should not be followed. He notes
Sherow cited secondary authority , and claims its conclusion that the defendant has the
burden of proving eligibility is contrary to controlling California law. But Sherow also
cited the well

- settled 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.”’” ( Sherow , supra , 239 Cal.App.4th at p. 8 79 .)

Finally, defendant contends there is insufficient evidence in the record to determine his eligibility, so again the court erred. Here w e agree with his p remise but not
his conclusion. In th is case, as in Sherow , “ the petition

. . . gave virtually no info rmation regarding [his] eligibility for resentencing.” ( Sherow , supra , 239 Cal.App.4th at p. 880.) Further, the only other facts in the record which we have concerning defendant’s burglary convictions are set out above in the representations of counsel t o the court at the hearing.4 Under these circumstances we cannot conclude the court erred in denying defendant’s petition to have his felony commercial burglary convictions redesignated as
misdemeanor petty theft s under section 1170.18, subdivisions (f) and (g). The record is essentially devoid of information from which the court could determine his eligibility for relief. Thus, defendant , l ike the defendant in Sherow , did not satisfy his burden of proof.
DISPOSITION
T he order denying defendant’ s petition for resentencing is affirmed without prejudice to consideration of a subsequent ly filed petition

.

THOMPSON, J.

WE CONCUR:

BEDSWORTH , ACTING P. J.

IKOLA, J.