Filed 6/23/16 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.
BRANDEN JOHNSON,
Defendant and Appellant. D068384

(Super. Ct. No. SCD245781)

ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT:

On the court's own motion, the opinion filed in this matter on June 23, 2016, is

modified as follows:
In the first paragraph on page 22, the second sente nce beginning with the word
"Accordingly," the word "granting" is changed to "denying" so the full sentence reads as

follows:
Accordingly, our affirmance of the order denying Johnson's section 1170.18, subdivision (a) petition is without prejudice to the superior court's consideration of a subsequent petition that contains evidence

— not limited to the record of conviction

— of Johnson's eligibility for relief under Proposition 47.2

There is no change in judgment.

McDONALD, Acting P. J.
Copies to: All partiesFiled 6/23/16 (unmodified version) CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.
BRANDEN JOHNSON,
Defendant and Appellant. D0683 84

(Super. Ct. No. SCD245781)

APPEAL from an order of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.

Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney Gene ral, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony

Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Branden Johnson appeals from an order of the superior cour t denying his petition
to recall his felony sentence for receiving stolen property and to resentence him to a

misdemeanor, as allowed in Penal Code section 1170.18, subdivision (a), which was2

enacted as part of Proposition 47

. 1 On appeal, Johnson argues t hat the trial court erred in
ruling that he , not the People, had the burden of establishing eligibility for Proposition 47

relief. We disagree and will affirm the order . The affirmance is without prejudice, in the
event Johnson wants to file a new petiti on in which he may attempt to meet his initial

burden of demonstrating entitlement to relief under Proposition 47

.
I.

FACTUAL AND PROCEDURAL BACKGROUND 2

In a January 2013 complaint, the district attorney charged Johnson (and a

co defendant) with one count of receiving stolen property in violation of section 496,

1 " A person currently serving a sentence for a conviction, whe ther 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 cour t that entered the judgment of conviction in his or her case to request resentencing in accordance with

. . . [s ection ] 49 6

. . . of the Penal Code, as th [at] section [] ha [s] been amended

. . . by this act. " ( Pen. Code, § 1170.18 , subd. (a). Further unde signated statutory re ferences are to the Penal Code. )

2 The trial court indicated that it had before it Johnson ' s " file, " stating that one of the issues was whether the court could consider anything other than the " record of conviction

. " The court did n ot indicate what i t considered to be part of the record of conviction. For purposes of the factual recitation in this opinion , we have considered the following documents from the record on appeal: the January 2013 complaint; the August 2013 written plea; the August 2013 reporter ' s transcript from the hearing on the change of plea ; the November 2013 reporter ' s transcr ipt from the sentencing hearing ; the November 2013 (sentencing) order granting mandatory probation supervision; the November 2013 felony abst ract of judgment ; and the April 2015 reporter ' s transcript from the hearing at which probation was revoked . We have not considered as evidence the v arious probation reports or the police arrest report
, since the trial court did not consider them (on the ba sis they are not part of Johnson ' s record of conviction) , and they contain multiple layers of hearsay.3

subdivision (a). In August 2013, pursuant to a negotiated plea agreement, Johnson
pleaded guilty; the factual basis for the plea was that he " unlawfully [ and ] knowingly
possessed stolen property. " In November 2013, the court denied pr obation (due to

Johnson ' s prior convictions ) and ordered Johnson to serve a three

- year split sentence

— two years in county jail and one year suspended with mandatory supervision.

On November 4, 2014, California vot ers 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 m akes certain

. . . 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 mi sdemeanors). " ( Rivera , at p

. 1091 .)
As relevant to the issue on appeal, Proposition 47 allows for the defendant to be

resentenced and the felony conviction for receiving stolen property to be deemed a
misdemeanor upon a showing that the value of the stol en property did not exceed $950.

(§§ 1170.18, subd s. (a) & (b), 496, subd. (a).)

O n Ap ril 2, 2015, the court revoked mandatory supervision for Johnson and

ordered him to serve the remain ing 295 days of his sentence in custody.
Approximately one week l ater, Johnson filed a form petition signed by his

attorney , requesting that Johnson ' s felony sentence be recalled and that he be resentenced

under section 1170.18, subdivisions (b) and (d)

. The one

- page check

- the

- box petition
contained only the date of co nviction ( " 11/07/13
, " which was the date of sentencing, not4

conviction ) , the crime of which Johnson was convicted ( " PC496(a) " ), the sentence ( " 3
years confine ment " ) and the request for resentencing

. T he case was assigned to the
original sentencing judge ( § 1170.18, subd. ( l )) , who requested briefing from both sides

an d placed the matter on the court ' s calendar for hearing

. In May 2015, the People filed points and authorities in opposition to Johnson ' s
petition
, arguing in relevant part that Johnson did n ot meet his burden of presenting

evidence that established his entitlement to relief under Proposition 47 . More
specifically, the People argued that Johnson did not establish from the record of

conviction that the offense of which he was convicted involve d a theft of property valued

at less than $950

. In support, the People submitted copies of some of the text of
Proposition 47 and an August 2013 probation report that was prepared in anticipation of

Johnson ' s original sentence on the felony conviction fol lowing his negotiated guilty plea.
Johnson filed points and authorities, contending that because his original petition

contained a prima facie showing that he was eligible for Proposition 47 relief, 3 the
burden shifted to the prosecution to establish tha t he was not entitled to relief

— a

burden
, he argued
, the prosecution did not meet by relying on the probation report, which
is not part of the record of conviction. More specifically, Johnson contended that,

because the record of conviction was silent a s to the value of the stolen property , the

3 Johnson ' s petition did not mention the value of the stolen property in his possession , and in his written submission Johnson did not explain why he be lieved he had made a " prima facie showing " for relief based on merely his felony conviction, the date of his sentencing and the term of his sentence.5

court could " only find the least adjudicated offense under the record, " which Johnson
argued was a misdemeanor. In support, Johnson submitted a copy of the eight

- page
police report in which the arresting officer filled out a form and attached a narrative

report of the arrest

. Johnson argued that statements in the arrest report established that
the value of the stolen property in hi s possession that formed the basis of his conviction

was less than $950 and should be admissible because the report was like a preliminary

hearing transcript, which is part of the record of conviction. 4

The People filed a reply, emphasizing that the burden of proof was on Johnson
and arguing that, by submitting a barebones check

- the

- bo x form petition that contained

no evidence regarding the stolen property in his possession, the petition should be denied
for lack of a prima facie showing of eligibility to Proposition 47 relief. Alternatively, the
People argued that, if the court determ ines Johnson to have made a sufficient showing of
eligibility, then the petition still should be denied because Johnson did not present any

actual evidence that the value of the stolen property did not exceed $950.

At the June 3, 2015 hearing, the court denied Johnson ' s petition. The court
explain ed: I n attempting to establish the value of the stolen property, " the parties need
necessarily to be confined to the record of conviction " ; Johnson had the burden of proof

to establish " through the record of co nviction " that the value of the stolen property did

4 Inconsistently, e lsewhere in his points and authorities, Johnson cited two cases in support of the po sition that "police reports are not part of the record of conviction " and urged the court not to consider the police report (or the probation report).6

not exceed $950 (in order to qualify for Prop

. 47 relief); and Johnson did not meet his
burden of proof.
Johnson timely appealed.

II.

DISCUSSION
In determining whether the trial court properly applie d 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 Johnson ' s felony conviction and, second, whether
that party met the required burden. All that is at iss ue in this appeal is the burden at the
time the trial court determines the petitioning defendant ' s initial eligibility " [u]pon
receiving a petition under subdivision (a). " (§ 1170.18, subd. (b).) As we explain, the

initial burden of establishing eligibil ity was on Johnson, 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 propert

y does not exceed nine hundred fifty dollars ($950), the7

offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year

. . . . " 5 ( I talics added.)
(See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Pro p. 47, § 9, p. 72.)
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 app licable statute that w as
added or amended by Proposition 47. (§ 1170.18, subd. (a); Rivera
, supra , 233
Cal.App.4th at p. 1092.) Pursuant to this procedure, Johnson applied to the trial court to

recall h is 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 (201 6 ) 62 Cal.4th

589, 593 (

Arroyo ) [ Prop. 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 meani ng. ( 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

5 Prior to Proposition 47 , which includes the time of Johnson ' s felony conviction
, the last quoted sen tence 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 hund red 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

indicia of the intent of the electorate, includi ng the analyses and arguments in the official
ballot pamphlet. ( Ibid. ) We will not interpret ambiguities in initiative language so as to

create an absurd result or to be inconsistent with the voters ' intent

. ( See People v. Cruz

(1996) 13 Cal.4th 764, 78 2

- 783.)
Where an appeal involves 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
, supra , 62 Cal.4th at p. 593.) Where the trial court applies disputed facts to s uch 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, 54 8

- 549 .) " ' [A] n order is presumed co rrect; all intendments
are indulged in to support it on matters as to which the record is silent, and error must be
affirmatively shown. ' " ( People v. Carpenter (1999) 21 Cal.4th 1016, 1046.) In addition,

we must " ' view the record in the light most favo rable to the trial court ' s ruling

. ' " ( Ibid. )

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 i n 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. " The second sentence

of section 496, subdivision (a)

— i.e., the language at issue in this appeal

— deals with9

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 s hall be a

misdemeanor

. . . . " ( I talics added.)
In support of his original petition, John son presented no evidence as to how he

" would have been guilty of a misdemeanor under [ Prop. 47 ] had this act been in effect at

the time of the offense, " as required by section 1170.18, subdivision (a) . In response to

the court ' s request for briefing, Joh nson submitted an unsigned copy of his arrest report,
which contained the arresting officer ' s summary of events surrounding Johnson ' s
January 18, 2013 arrest for receiving stolen property ( and for possession of tear gas )

. In
relevant part, the officer wro te that he interviewed a witness (the potential purchaser of
the stolen property) , the co defendant and Johnson

— each of who m provided certain

information to the officer with regard to the value of the stolen property. In the

information provided by these three people, the stolen property was described as a laptop
computer that was to be sold for between $350 and $400.

Section 1170.18, subdivision (a) is silent as to who has the initial burden of
establishing whether a petitioning defendant is eligible f or resentencing. (See fn. 1,

ante .) At the time Johnson filed h is petition in April 2015 , section 1170.18 had been in

effect for less than six months, and even by June 2015 when the trial court denied

Johnson ' s petition there were no appellate opinions t o provide guidance on this issue.
Within the last year, at least four final appellate opinions have interpreted and
applied section 1170.18, subdivision (a)

— each holding that this initial burden is borne
by the petitioning defendant. ( People v. Sherow (2015) 239 Cal.App.4th 875, 87810

( 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 ( Rivas

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

- 137

( Perkins ) [same ]; People v. Bush (2016) 245 Cal.App.4th 992, 1007 ( Bush ).)
On appeal, contrary to Sherow
, Rivas

- Colon
, Perkins and Bush , Johnson does not
mention a requirement that he make (and does not argue that he ma de ) the initial showing
of eligibility for Proposition 47 relief in his petition. Rather, he contends that in response
to his petition the trial court was limited to consideration of the record of conviction
(without suggesting what comprises the record o f conviction), and because the record of
conviction in this case does not disclose the value of the stolen property, the prosecution
cannot prove that Johnson is ineligible for Proposition 47 relief. In so doing, Johnson
argues that Sherow is not controll ing on two basic grounds: (1) Unlike Sherow , in which
the petitioning defendant had been found guilty of felony burglary following a trial with a
complete record of the underlying theft, here Johnson pleaded guilty to felony receipt of
stolen property fol lowing the filing of a complaint with little or no record of the

underlying theft; and , alternatively, (2) Sherow was wrongly decided

. 6

We disagree. As we explain, the petitioning defendant, not the prosecution, has

the initial burden of establishing el igibility for resentencing, and the trial court is not

6 Johnson does not men tion Rivas

- Colon
, supra , 241 Cal.App.4th 444, l et alone attempt to argue that it is not controlling

. Perkins
, supra , 244 Cal.App.4th 129
, and Bush
, supra , 245 Cal.App.4th 992, w ere filed after Johnson filed his reply brief in this appeal.11

limited to consideration of the record of conviction. This burden includes presenting

evidence that the petitioning defendant " would have been guilty of a misdemeanor under

[ Proposition 47 ] had [ Propo sition 47 ] been in effect at the time of the offense "

(§ 1170.18, subd. (a)), which as applicable in this case means evidence that " the value of
the property does not exceed nine hundred fifty dollars ($950) " (§ 496, subd

. (a)).

Johnson did not meet his i nitial burden here.

1. Johnson Had the Initial Burden of Establishing Eligibility for Res entencing Under Proposition 47 f

rom Sources Not Limited to the Record of Conviction

Johnson contends on appeal that the trial court properly limited its consideration of

evidence to the record of conviction , and the People do not argue otherwise. Johnson
bases his position solely on a citation to People v. Bradford (2014) 227 Cal. App.4th

1322 ( Bradford ) , the authority on which the trial court relied in ruling that th e parties

were confined to the record of conviction. In part, Bradford held that in response to a
petition for resentencing under Proposition 36 (§ 1170.126 , titled the Three Strikes

Reform Act of 2012 ), " the trial court must determine the facts needed to adjudicate

eligibility based on evidence obtained solely from the record of conviction

. " 7 ( Bradford
,
at p. 1327.)
Johnson posits that (1) because Proposition 36 and Proposition 47 both decrease
existing sentences and use similar language to define eli gibility for resentencing

7 Without sugg esting what documents comprise the record of conviction, the Bradford court described the required evidence as " facts attendant to commission of the actual offense. " ( Bradford
, supra , 227 Cal.App.4th at p. 1332 [Prop. 36; § 1170.126].)12

(compare § 1170.126, subd. (f) [Prop. 36] with § 1170.18, subd. (a) [Prop. 47] ) and

(2) because neither proposition identifies what evidence a court may consider in
determining eligibility, when the trial court makes its initial d etermination whether the
petition satisfies the criteria for resentencing under Proposition 47 , the court should be
limited to the record of conviction the same as it is under Proposition 36. " ' W hen
legislation has been judicially construed and a subsequ ent 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 a t p. 1100.)
We agree with Johnson that the two propositions employ similar procedures. We
disagree, however, with his suggestion s both (1) that the prosecution has the initial

burden to establish a petitioning defendant ' s ineligibility for resentencing
, 8 and (2) that
the trial court is limited to consideration of the record of conviction for this purpose.
Rather, under both Proposition 36 and Proposition 47 , the petitioning defendant has the

8 As a preliminar y matter, we reject Johnson ' s suggestion that, because the initial showing under Proposition 47 requires evidence of " guilt[] of a misdemeanor " (§ 1170.18, subd. (a) ) , the prosecution has the burden of proof beyond a reasonable doubt . Section 1170.18 deal s with resentencing a petitioning defendant whose commission of a felony has already been proven beyond a reasonable doubt . I f successful, the petitioning process results in the recall of the felony sentence and the resentencing, not in the convicti on of a new or different crime. ( Id

. , subd. (b).) Only after the resentencing has taken place

— i.e., after the court has determined that the petitioning defendant " would have been guilty of a misdemeanor under [ Proposition 47 ] had [ Proposition 47 ] been in eff ect at the time of the offense " ( id

. , subd. (a)) and is not otherwise ineligible for relief

— is the conviction " considered a misdemeanor for all purposes " ( id

. , subd. (k)).13

initial burden of establishing eligibility, and if that burde n is met, then the prosecution
has the opportunity to establish ineligibility on other grounds. With regard to the
evidence the court may consider, there is no indication in either of the two propositions

that the voters intended to limit the court ' s cons ideration to the record of conviction

.
A lthough appellate authority has so limited the trial court ' s consideration under
Proposition 36 ( Bradford
, supra , 227 Cal.App.4th at p. 1327) , such a limitation under
Proposition 47 would result in potentially insur mountable obstacles to obtaining relief to
which a petitioning defendant would be entitled under a consideration of evidence from

other sources.

a. Initial Burden
In comparing Proposition 36 with Proposition 47 , Johnson first suggests that under

both th e prosecution has the initial burden of establishing that a petitioning defendant is
ineligible for resentencing. We disagree.
Under Proposition 36, a defendant who has two or more prior serious and/or

violent felonies, known as " strikes, " is no longer n ecessarily 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. ( Bradford
, supra , 227 Cal.App.4th at pp. 1327

- 1328.) In
enacting section 1170.126 as part of Propositio n 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 Ca l.App.4th 836, 846 ( Arevalo ).)14

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) (2)
, for
a conviction of a felony that is not defined as seri ous 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).) T here, t he petitioning defendant has the initial burden of
establishing eligibility

— namely, the r equisite conviction and sentence set forth in

section 1170.126, subdivision (e). (§ 1170.126, subd. (b).) The prosecution 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 petitio n 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 d rug conviction, but only those who would ha ve
been guilty of a misdemeanor under the various statut es that were added or amended by
Proposition 47

. Like Proposition 36, Proposition 47 requires the petitioning defendant to

establish initial eligibility for relief

— which, under Proposition 47 , is " guilt[] of a

misdemeanor. " (§ 1170.18, subd. (a).) Als o like Proposition 36, Proposition 47 then

9 In addition, the court may still deny relief to an otherwise eligible petition ing 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.)15

allows the prosecution 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 de monstrating that the petitioning defendant

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

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

b. Record of Conviction
In comparing Proposition 36 with Proposition 47 , Johnson further suggests that

whe n determining a petitioning defendant ' s initial eligibility for resentencing
, the trial

court is limited to consideration of the record of conviction. 11 Again
, 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

10 Finally, as in Pr oposition 36, under Proposition 47 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 p roof for entitlement to resentencing under Proposition 47

.
11 The parties have not cited, and our own research has not disclosed, any authority that explicitly lists or describes t he documents that comprise the record of conviction. That said, we are gui ded 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 th e 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 ) ].)16

" the re levant 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

w hich the defendant was convicted " ( People v. McGee (2006) 38 Cal.4th 682, 691 , italics

added [consideration whether a conviction from another jurisdiction is a " serious felony "

under Three Strikes law, §§ 667, subd. (d)(2), 1170.12, subd. (b)(2)]).

In contrast, under Proposition 47 the relevant inquiry for purposes of establishing
a petitioning defendant ' s initial eligibility is " guilt[] of a misdemeanor " (§ 1170.18,

subd. (a))

— which often cannot be established merely from the record of conviction of
the felony. This is because, 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 irre levant in

charging the defendant with a pre

- Proposition 47 felony. 12

Stated differently, t he initial determination under Proposition 36 is predom inantly
legal (see People v. Kelii (1999) 21 Cal.4th 452, 456

- 457), whereas the initial

determination under P roposition 47 is entirely factual. Under Proposition 36 the initial
showing required for resentencing is merely evidence of the e xist ence of specified

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

— indeed, the only f

act available

— to establis h that a petitioning defendant would ha ve 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 pr operty was not at issue where the defendant was charged with a felony. (§ 496, former subd. (a).)17

convictions that will be contained in the record of conviction. In contrast, under
Proposition 47 the i nitial showing required for resentencing must include evidence of
facts that would support a conviction of a misdemeanor that was enacted or amended by

Proposition 47
, which may well require evidence outside of the record of conviction. As

such, the trial court is not limited to the record of conviction in its consideration of the

evidence to adjudicate eligibility for resentencing under Proposition 47

. 13

While the petitioning and resentencing procedures under Proposition 36 and
Proposition 47 are very m uch the same (compare § 1170.126 with § 1170.18), what must
be shown initially in support of the petition under each proposition is not. Thus, the
potential sources of evidence necessary for this showing are not the same. F or this initial

burden under Pr oposition 47 , a petitioning defendant is entitled to present evidence of

facts from any source to establish the guilt of the Proposition 47

- sanctioned

misdemeanor. ( Perkins
, supra , 244 Cal.App.4th at p. 140 [any probative evidence];

Sherow
, supra , 239 Cal .App.4th at p. 880 [petitioning defendant ' s testimony] .)

13 For this same reason, we reject Johnson ' s suggestion that, because the record of Johnson ' s conviction does not contain evidence as to the value of the st olen property, we must presume the conviction was for the least punishable offense. In support of his position, Johnson relies on People v. Guerrero (1988) 44 Cal.3d 343, which holds that, for purposes of a sentence enhancement based on a prior conviction of a " serious felony, " where the facts of the prior offense are not ascertainable from a review of the entire record of the prior conviction, " the court will presume that the prior conviction was for the least offense punishable under the

. . . law. " ( Id

. at p. 352.) As we have just concluded, however, here the parties and court are not limited to Johnson ' s record of conviction.18

Accordingly, the trial court here erred in ruling that, in establishing the value of
the stolen property, " the parties need necessarily to be confined to the record of

conviction. " H owever, Johnson is not entitled to a reversal of the order denying his
petition. T he record on appeal does not contain evidence from any source as to the value
of the stolen property

— i.e., evidence from which the court could have made the initial

determination whether Johnson would ha ve been guilty of a misdemeanor under

section 496, subdivision (a), and thus eligible for resentencing under section 1170.18,

subdivision (b). 14 Accordingly , given this record on appeal, because there is no
reasonable probability that John son would have achieved a more favorable result had the

court considered evidence from sources other than the record of conviction , the trial

court ' s error is harmless . ( People v. Watson (1956) 46 Cal.2d 818, 836 [reversal only if

defendant can establish prejudice from trial court ' s error].)

c. Summary
As applicable here, therefore, Johnson had the initial burden of demonstrating
eligibility for resentencing under Proposition 47 from any source of admissible evidence.

14 In support of his petition, Johnson submitted only his attorney ' s statement s of the crime of which Johnson was convicted, t he date of the sentencing, the sentence imposed and the request for resentencing

— none of which is sufficient as a matter of law to establish the value of the stolen property in Johnson ' s possession. In opposition, the People submitted some of the text o f Proposition 47 and an August 2013 probation report following Johnson ' s conviction for felony receipt of stolen property. The text does not contain evidence of the value of the stolen property, and " a probation report

. . . is not evidence " ( People v. Ov erton (1961) 190 Cal.App.2d 369, 372)

. In re sponse , Johnson submitted an unsigned copy of the police report following his arrest, but it does not contain admissible evidence; the report lacks authentication, and its statements of value of the stolen prope rty contain multiple levels of hearsay.19

2. Johnson Did Not Meet His Initial Burden of Establishing Eligibility for Resentencing Under Proposition 47
For purposes of deciding who has the initial burden of proof under

section 1170.18, subdivision (a), we see no distinction between Sherow and the present
appeal. In each, the petit ioning defendant failed to present evidence that he " would have
been guilty of a misdemeanor " (§ 1170.18, subd. (a))

— namely, that the value of the

stolen property did not exceed $950. 15 ( Sherow
, supra , 239 Cal.App.4th at p. 877.)

In Sherow
, after hold ing that the petitioning defendant has the initial burden of
establishing eligibility for resentencing under Proposition 47
, we comment ed that a

" proper petition " could have " contain[ed] at least [the petitioning defendant] ' s testimony

about the nature of the items taken. " ( Sherow
, supra , 239 Cal.App.4th at p

. 880.) From
this, Johnson attempts to distinguish Sherow on the basis that, because the petitioning

defendant in Sherow was convicted after trial ( ibid. ), he had a reporter ' s transcript that

could ha ve been presented to the trial court. In contrast, Johnson ' s argument continues,

because he pleaded guilty here, he has no trial transcript to present.

15 In Sherow , the defendant was convicted of felony second degree burglary (§ 459) from offenses in 2007, and he petitioned in 2014 to be resentenced according to section 459.5, subdivision (a), which was enacted as part of Proposition 47 . ( Sherow
, supra , 239 Cal.App.4th at p. 877.) Here, Johnson was convicted of felony possession of stolen property (§ 496, former subd. (a); see fn. 5), and he petitioned to be resentenced according to section 496, subdivision (a), which was amended as part of Proposition 47

. In both cases, to establish that the petitioning defendant " would have been guilty of a misdemeanor " for purposes of section 1170.18, subdivision (a), the applicable substantive statute required proof that the value of the stolen property was less than $950. (§§ 459.5, subd. (a), 496, subd. (a).)20

Johnson reads Sherow too narrowly. There is nothing in Sherow to suggest that
the petitioning defen dant ' s " testimony about the nature of the items taken " ( Sherow
,

supra , 239 Cal.App.4th at p. 880) must come from a trial transcript . T o the contrary, in
the sentence immediately preceding the one cited by Johnson, we explained that the trial

record in She row , which included transcripts, did not contain any evidence of the value of
the stolen property. ( Ibid. ) In addition, we find support in the language of the statute,

section 1170.18, which allows for the filing of a petition for resentencing of a convi ction

" whether by trial or plea , of a felony " ( § 1170.18, subd. (a), italics added)

— without any
distinction between the showing required for a conviction following a trial or a plea.

Our comment in Sherow regarding the petitioning defendant ' s " testimo ny about

the nature of the items taken " suggests, for example, that a declaration from the person

who " knows what kind of items he took " would be adequate. ( Sherow
, supra , 239
Cal.App.4th at p. 880.) Moreover, a s indicated in Perkins , there is no limitat ion to the
sources of evidence that can be presented as part of the petitioning defendant ' s initial

burden under section 1170.18, subdivision (a): A s part of the petition , the petitioning

defendant " should describe the stolen property and attach some evid ence, whether a

declaration, court documents
, record citations, or other probative evidence showing he is
eligible for relief. " ( Perkins
, supra , 244 C al. A pp.4th at p

. 140.)
For these reasons, we reject Johnson ' s suggestion that Sherow

— and, by
implic a tion, Rivas

- Colon
, Perkins and Bush

— were wrongly decided , and we will apply

them here

. B ecause Johnson did not present any evidence as to the value of the stolen21

property (see fn

. 1 4
, ante ), Johnson did not meet his initial burden in the trial court and
, accordingly, his burden on appeal of establishing trial court error.

D. Affirmance Without Prejudice

In Perkins
, supra , 244 Cal.App.4th 129, our colleagues in Division Two affirmed

the trial court ' s order denying the defendant ' s section 1170.18, subdivi sion (a) petition on
the basis that the defendant did not meet his 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 fo r receiving stolen
property under section 496, former subdivision (a). ( Perkins , at pp. 134

- 135, 137.) Like

Sherow , ho wever, the affirmance was without prejudice to the petitioning defendant
filing a new petition that offered evidence of his eligibility. ( Perkins , at p. 142; see

Sherow
, supra , 239 Cal.App.4th at p. 881.) The Perkins court reasoned that
Proposition 47 is silent as to the burdens associated with petitioning for relief
, and neither
at the time the petitioning defendant filed his petition n or at the time the trial court ruled
on the petition had any appellate court provided guidance to the trial courts or the
litigants as to the burden of establishing eligibility. ( Perkins , at p. 142.)

As these two authorities advise
, a proper petition fro m Johnson " could certainly

contain at least [ his ] testimony about the nature of the [stolen property] " ( Sherow
, supra , 239 Cal.App.4th at p. 880 ) and " should describe the stolen property and attach some

evidence, whether a declaration, court documents
, rec ord citations, or other probative
evidence showing he is eligible for relief " ( Perkins
, supra , 244 C al. A pp.4th at p

. 140)

.22

We agree with the reasoning in Perkins and the results reached in Sherow and

Perkins . Accordingly, our affirmance of the order gra nting Johnson ' s section 1170.18,

subdivision (a) petition is without prejudice to the superior court ' s consideration of a
subsequent petition that contains evidence

— not limited to the record of conviction

— of

Johnson ' s eligibility for relief under Propo sition 47

. 16

DISPOSITION

We affirm the June 3 , 2015 order denying Johnson ' s petition to recall the sentence
on his felony conviction for receiving stolen property and to resentence him under
Proposition 47 . This affirmance is without prejudice to the sup erior court ' s consideration
of a subsequent petition by Johnson that offers evidence of his eligibility for the
requested relief.

IRION, J.

WE CONCUR:

M C DONALD, Acting P. J.

AARON, J.

16 We express no opinion as to what specific evidence Johnson might rely on, how the People might respond, or whether such a petition might be successful.