Filed 7/23/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHEYANNE BEAR,

Defendant and Appellant.

 H044609

 (Santa Clara County

 Super. Ct. No. 70664)

Defendant Cheyanne Bear appeals from orders summarily denying a Penal Code 

section 1170.18 petition to redesignate a 1980 felony grand theft conviction as a

misdemeanor and a subsequent filing that the trial court construed as a second petition 

regarding the same conviction.

1 The trial court denied the first petition for failure to 

establish that the value of the property taken did not exceed $950. The trial court denied 

what it construed as a second petition on several grounds, including the absence of “any 

authority cited for the filing of a second petition after disposition of the first petition in 

open court.”

We shall affirm the order denying defendant’s first petition. We construe 

section 1170.18 as conferring discretion on the trial court to permit the filing of an 

amended petition. Because the trial court was unaware of, and did not exercise, this 

discretion, we reverse the second order and remand the matter to give the trial court the 

opportunity to exercise that discretion.

1 All further statutory references are to the Penal Code unless otherwise indicated.

 
I. FACTUAL AND PROCEDURAL BACKGROUND2

In 1978, defendant approached a high schooler on a transit bus and told him to 

take off his Ted Nugent concert T-shirt because defendant didn’t like it. When the boy 

did not comply, defendant kicked him in the face and took out a knife. The boy took off 

the shirt and handed it to defendant who threw it out the bus window. In connection with 

the incident, defendant pleaded guilty to grand theft person (§§ 484-487), a felony, on 

January 7, 1980.3

The Santa Clara County Public Defender Office filed a section 1170.18, 

subdivision (f), petition to reduce the felony conviction to a misdemeanor on defendant’s 

behalf on June 2, 2016. The petition did not identify the stolen item as a T-shirt, allege 

the value of the stolen item, attach any evidence probative of the stolen item’s value, or 

provide the trial court with citations to the record of conviction indicating where 

probative evidence is located. The district attorney requested that the petition be denied 

for failure to “establish eligibility.” The trial court denied the petition in an order filed on 

November 28, 2016, reasoning that defendant failed to demonstrate his eligibility for 

relief because “[t]he record of conviction does not establish the value of the property that 

was the basis for the charge . . . and Defendant has not provided any information from 

which that value might be determined.”

Defendant, again with the assistance of the Public Defender Office, then filed a 

Waiver and Stipulation for Resentencing or Redesignation of Offenses on March 2, 2017, 

in which he and the district attorney stipulated and agreed that defendant is eligible to 

have his felony grand theft conviction designated as a misdemeanor under 

section 1170.18, subdivision (f). The superior court construed the filing as a second 

2 The facts are taken from the preliminary hearing transcript.

3 At the time, section 487, subdivision (2), defined grand theft to include theft 

“[w]hen the property is taken from the person of another,” without reference to the 

property’s value. (Stats. 1965, ch. 161, § 1.)

2

 
petition and, on April 5, 2017, denied it on several grounds: the absence of an “allegation 

of any changed circumstance,” the absence of “any authority cited for the filing of a 

second petition after disposition of the first petition in open court,” “the order on the 

original petition was not made without prejudice,” and failure to make a prima facie 

showing of eligibility.

Defendant timely appealed from that order. Defendant also moved this court for 

relief from default for failure to timely appeal from the November 28, 2016 order. This 

court granted that motion on the condition that defendant file a notice of appeal in 

superior court within 10 days, which he did. 

II. DISCUSSION

A. Proposition 47

In November 2014, voters approved Proposition 47, the Safe Neighborhoods and 

Schools Act. (People v. Page (2017) 3 Cal.5th 1175, 1179, 1181 (Page).) Proposition 47 

“reduced the punishment for certain theft- and drug-related offenses, making them 

punishable as misdemeanors rather than felonies.” (Page, supra, at p. 1179.) Under 

Proposition 47, grand theft of property valued at $950 or less is a misdemeanor if the 

defendant does not have a specified prior conviction. (§ 490.2, subd. (a).) Proposition 47 

also added section 1170.18, which permits a defendant to petition to have his or her 

felony conviction resentenced to or redesignated as a misdemeanor. (§ 1170.18, 

subds. (a), (b), (f) & (g).) A petition or application under section 1170.18 must be filed 

on or before November 4, 2022, absent a showing of good cause.4 (§ 1170.18, subd. (j).)

“[T]he proper allocation of the burden of proof . . . [was] not set out expressly in 

the text of Proposition 47.” (Page, supra, 3 Cal.5th at p. 1189.) Courts have held that the 

4 Originally, the deadline was three years after the effective date of Proposition 47. 

(Former § 1170.18, subd. (j).) That deadline was extended to November 4, 2022

effective January 1, 2017. (Legis. Counsel’s Dig., Assem. Bill No. 2765 (2015-2016 

Reg. Sess.)

3

 
petitioner bears the burden of proving eligibility for relief. (People v. Romanowski

(2017) 2 Cal.5th 903, 916 (Romanowski).) The first case to so hold was People v.

Sherow (2015) 239 Cal.App.4th 875, 878-879 (Sherow), which was issued on August 11, 

2015. People v. Perkins (2016) 244 Cal.App.4th 129, 136-137 (Perkins), issued on 

January 25, 2016, articulated what a petitioner must do to carry that burden, including,

“where the offense of conviction is a theft crime reclassified based on the value of stolen 

property, showing the value of the property did not exceed $950” by “attach[ing]

information or evidence necessary to enable the court to determine eligibility.”

“In some cases, the uncontested information in the petition and record of 

conviction may be enough for the petitioner to establish this eligibility. . . . But in other 

cases, eligibility for resentencing may turn on facts that are not established by either the 

uncontested petition or the record of conviction. In these cases, an evidentiary hearing 

may be ‘required if, after considering the verified petition, the return, any denial, any 

affidavits or declarations under penalty of perjury, and matters of which judicial notice 

may be taken, the court finds there is a reasonable likelihood that the petitioner may be 

entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an 

issue of fact.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 

Cal.App.4th 875, 880 [‘A proper petition could certainly contain at least [the petitioner’s] 

testimony about the nature of the items taken. If he made the initial showing the court 

can take such action as appropriate to grant the petition or permit further factual 

determination.’].)” (Romanowski, supra, 2 Cal.5th at p. 916.)

B. The First Petition

Defendant concedes that, at the time he filed his first petition, “the law was clear 

that the petitioner bears the burden to establish [Proposition 47] eligibility . . . .” Yet he 

did nothing to carry that burden: the first petition did not identify the stolen item as a 

T-shirt, allege the value of the stolen item, attach any evidence probative of the stolen 

item’s value, or provide the trial court with citations to the record of conviction indicating 

4
where probative evidence is located. Plainly, defendant did not meet his burden. 

(See Perkins, supra, 244 Cal.App.4th at p. 141 [to carry burden of showing eligibility for 

Proposition 47 relief, “defendant should describe the stolen property and attach some 

evidence, whether a declaration, court documents, record citations, or other probative 

evidence showing, for each conviction, that the stolen [item] did not exceed $950 in 

value”].)

Defendant contends that his failure to carry his burden “makes no difference” 

because “the trial court expressly stated it had considered the record of conviction, which 

included the preliminary hearing transcript,” which in turn established that the stolen item 

was a T-shirt. We disagree. Accepting defendant’s argument would improperly place 

the burden on the trial court to search the record of conviction for the evidence necessary 

to support the petition. It is defendant’s burden and he did not carry it. Therefore, we 

affirm the November 28, 2016 order denying the first petition.

C. The Stipulation

Approximately three months after the trial court denied the first petition, defendant

and the district attorney filed a stipulation in which they agreed that defendant is eligible 

to have his felony grand theft conviction redesignated as a misdemeanor under 

section 1170.18, subdivision (f). The superior court construed the stipulation as a second 

petition and denied it for failure to allege “any changed circumstance,” cite any authority 

“for the filing of a second petition after disposition of the first petition” that “was not . . .

without prejudice,” or make a prima facie showing of eligibility for relief in the new 

petition. The parties assert that none of these bases for denying defendant relief was 

valid.

1. Section 1170.18 Confers Discretion on Trial Courts to Permit the

Filing of Amended Petitions

The primary issue raised on appeal from the trial court’s second order is whether, 

after the denial of a section 1170.18 petition for failure to make a prima facie showing of 

5
eligibility, section 1170.18 authorizes the filing of a second or amended petition 

regarding the same conviction.

Defendant contends multiple petitions—whether characterized as amended or 

second petitions—regarding the same conviction are permitted because section 1170.18 

does not preclude them and is to be liberally construed. In his view, the only limitation 

on multiple section 1170.18 petitions is the section 1170.18, subdivision (j) requirement 

that petitions be filed on or before the statutory deadline. The Attorney General says a 

second petition regarding the same conviction is permitted when the law was unsettled at 

the time of the first petition, a circumstance that does not apply here.

5

 But the Attorney 

General maintains this case does not involve a second petition, but rather an amendment 

5 Courts, including this one, frequently have affirmed the denial of Proposition 47 

petitions “without prejudice” to the defendant filing another petition. (See Sherow, 

supra, 239 Cal.App.4th at p. 881 [affirming order denying Proposition 47 petition 

“without prejudice to subsequent consideration of a properly filed petition”]; Perkins, 

supra, 244 Cal.App.4th at p. 142 [affirming order denying Proposition 47 petition 

“without prejudice to consideration of a subsequent petition that supplies evidence of 

[defendant’s] eligibility”].) The Supreme Court recently took that approach in Page, 

supra, 3 Cal.5th p. 1190, modifying the judgment of the Court of Appeal “to provide that 

the superior court’s order denying defendant’s petition is affirmed without prejudice to 

consideration of a petition providing evidence of his eligibility.” The Page court 

reasoned that the petitioner in that case was “entitled to an opportunity to file a new 

petition” because “the proper allocation of the burden of proof and the facts necessary to 

resentencing on a Vehicle Code section 10851 conviction were not set out expressly in 

the text of Proposition 47, and . . . neither had yet been judicially articulated when 

defendant submitted his petition for recall” two weeks after Proposition 47 took effect. 

(Page, supra, at p. 1189.) Likewise, the court in Perkins affirmed without prejudice 

because, “when defendant filed his petition, the ground rules were unsettled.” (Perkins, 

supra, at p. 140.)

That rationale has no application here. Defendant filed his first petition in 

June 2016. By then, courts had held that the petitioner bears the burden of proving 

section 1170.18 eligibility (Sherow, supra, 239 Cal.App.4th at pp. 878-879) and had 

explained what a petitioner must do to carry the burden of proving section 1170.18 

eligibility (Perkins, supra, 44 Cal.App.4th at pp. 136-137). Indeed, defendant concedes 

that, “[a]t the time [he] filed his initial section 1170.18 petition, the law was clear that the 

petitioner bears the burden to establish eligibility . . . .”

6

 
to the first petition. The Attorney General argues the court should have permitted the 

amendment under the general rule allowing pleadings to be amended liberally because 

defendant established a “reasonable possibility” he could cure the defect that led to the 

denial of the first petition.

Section 1170.18 does not expressly state whether a second or amended petition is 

permitted where the first fails to satisfy the statutory criteria. Where, as here, a statute is 

silent, we employ “the ordinary presumptions and rules of statutory construction.” 

(Californians For Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230; Bravo 

v. Ismaj (2002) 99 Cal.App.4th 211, 224 [“Because section 391.7 is silent on this issue, 

we turn to well-settled rules of statutory construction”].)

a. Principles of Statutory Construction

“ ‘In interpreting a voter initiative like [Proposition 47], we apply the same 

principles that govern statutory construction.’ ” (People v. Rivera (2015) 233 

Cal.App.4th 1085, 1099.) In construing a statute, our fundamental task is to determine 

the Legislature’s intent so as to effectuate the law’s purpose. (People v. Cornett (2012) 

53 Cal.4th 1261, 1265.) “In the case of [an initiative] adopted by the voters, their intent 

governs.” (People v. Jones (1993) 5 Cal.4th 1142, 1146.) We may consider the “the 

analyses and arguments contained in the official ballot pamphlet as extrinsic evidence of 

the voters’ intent and understanding of the initiative.” (Schmeer v. County of Los Angeles

(2013) 213 Cal.App.4th 1310, 1316-1317.) The initiative’s purpose and public policy

also are proper considerations. (People v. Arias (2008) 45 Cal.4th 169, 177.)

b. Analysis

We begin by considering the initiative’s purpose. Among the stated “purpose[s]” 

of the voters in enacting Proposition 47 was to “[r]equire misdemeanors instead of 

felonies for nonserious, nonviolent crimes.” (Voter Information Guide, Gen. Elec. 

(Nov. 4, 2014) text of Prop. 47, § 3, p. 70 (Guide).) Proposition 47 also expressly states 

7
that it “shall be broadly construed to accomplish its purposes” and “shall be liberally 

construed to effectuate its purposes.” (Guide, supra, §§ 15, 18, p. 74.)

As to public policy, California courts have long adhered to the “policy that cases 

should be tried on their merits rather than dismissed for technical defects in pleading.” 

(Bloniarz v. Roloson (1969) 70 Cal.2d 143, 149; Denham v. Superior Court (1970) 2 

Cal.3d 557, 566 [noting the strength of the policy that “seeks to dispose of litigation on 

the merits rather than on procedural grounds”].) In furtherance of that policy, “liberal 

interpretation and amendment of pleadings is strongly favored . . . .” (Dieckmann v. 

Superior Court (1985) 175 Cal.App.3d 345, 352; Herrera v. Superior Court (1984) 158 

Cal.App.3d 255, 259 [“ ‘Great liberality is indulged in matters of amendment to the end 

that lawsuits may be determined upon their merits’ ”].)

These “principles apply in the criminal context” as well. (People v. Huerta (2016) 

3 Cal.App.5th 539, 544 [stating, in dicta, that liberal amendment principles apply to 

Proposition 47 petitions].) For example, in a habeas corpus proceeding, “a court issuing 

an OSC retains the discretion to grant a party leave to amend” to cure any “technical 

irregularities in the pleadings . . . . Retention of this power is necessary to ensure that 

technical and inadvertent pleading errors do not lead to premature dismissals that would 

frustrate the ends of justice or require holding unnecessary evidentiary hearings that 

would squander scarce judicial resources.” (People v. Duvall (1995) 9 Cal.4th 464, 482.) 

Broadly construing section 1170.18 as giving superior courts discretion to grant a 

Proposition 47 petitioner leave to amend to cure pleading defects would further the 

initiative’s purpose of requiring misdemeanors instead of felonies for nonserious, 

nonviolent crimes. By contrast, prohibiting the amendment of section 1170.18 petitions 

such that pleading errors lead to the denial of meritorious petitions would not advance the 

initiative’s purposes.

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The policy in favor of doing justice by resolving litigation on the merits rather 

than on procedural grounds likewise supports a reading of section 1170.18 that authorizes 

superior courts, in their discretion, to grant a Proposition 47 petitioner leave to amend.

Other provisions of section 1170.18 also support such a construction. 

Section 1170.18 has been amended to extend the original three-year deadline by which a 

petition or application must be filed. (Compare § 1170.18, subd. (j) [petition or 

application generally must be filed on or before Nov. 4, 2022] with id., former subd. (j), 

added by Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014) [petition or 

application generally must be filed within three years after the effective date of 

Prop. 47].) That extension reflects an intent to increase, not restrict, the ability of 

qualifying petitioners to obtain relief under section 1170.18. Construing section 1170.18 

to allow petitions to be amended in the trial court’s discretion is consistent with that 

intent.

In view of the initiative’s purposes and provisions, as well as the long-standing 

policy of resolving litigation on the merits, we construe section 1170.18 as conferring 

discretion on the trial courts to grant Proposition 47 petitioners leave to amend their 

petitions.

Defendant neither sought nor obtained court approval prior to filing the 

stipulation, which defendant did not identify as an amended petition. And the 

trial court plainly was unaware that it had the discretion to permit the filing of an 

amended petition. For these reasons, we conclude that reversal is required. Because the 

law regarding whether amended petitions were permitted was unclear at the time 

defendant filed the stipulation, we further conclude that defendant is entitled to an 

opportunity to seek leave to file an amended petition on remand. (Cf. Page, supra, 3 

Cal.5th at p. 1189.) The trial court should exercise its discretion in considering whether 

to allow defendant to file the amended petition.

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2. Guidance on Remand

To provide some guidance to the trial court on remand, we address other aspects 

of its second order.

The trial court reasoned that the stipulation failed to make a prima facie showing 

of eligibility for Proposition 47 relief. Yet the district attorney and defense counsel 

declared under penalty of perjury that defendant is entitled to have his theft conviction 

reduced to a misdemeanor. Implicit in that declaration is the representation that 

defendant stole an item valued at $950 or less. Because “undisputed facts acknowledged

by the parties” constitute evidence supporting a finding of eligibility for Proposition 47 

relief, the stipulation made a prima facie showing of eligibility. (People v. Hall (2016)

247 Cal.App.4th 1255, 1263.)

We also note that evidence in the record of conviction that the stolen item was a 

high schooler’s T-shirt gives rise to the reasonable inference that the stolen property was 

worth less than $950 and thus “ ‘a reasonable likelihood that the petitioner may be 

entitled to relief . . . .’ ” (Romanowski, supra, 2 Cal.5th at p. 916.) Accordingly, if such 

evidence were properly brought to the attention of the trial court, an evidentiary hearing 

would be required to resolve the factual dispute as to the t-shirt’s value. (Ibid.)

III. DISPOSITION

The November 28, 2016 order is affirmed. The April 5, 2017 order is reversed 

and the matter is remanded to the trial court. Defendant shall have 30 days following 

issuance of remittitur to seek leave to file an amended petition.

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_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

People v. Bear

H044609
Trial Court: Santa Clara County Superior Court

Superior Court No.: 70664

Trial Judge: Honorable Linda R. Clark

Counsel for Plaintiff and Respondent:

THE PEOPLE

Xavier Becerra

Attorney General

Gerald A. Engler

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Donna M. Provenzano

Supervising Deputy Attorney General

Victoria Ratnikova

Deputy Attorney General

Counsel for Defendant and Appellant:

CHEYENNE BEAR

Anna L. Stuart

Sixth District Appellate Program