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Filed 8/19/16 P. v. Weaver 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 Appellant,

v.

RONALD WAYNE WEAVER,

Defendant and Respondent.

E065362

(Super.Ct.No. PEF003804)

OPINION

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

Affirmed.

Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District 

Attorney, for Plaintiff and Appellant.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and 

Respondent.

I

INTRODUCTION

The People appeal an order granting defendant Ronald Weaver’s application for 
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reduction of his felony commercial burglary conviction to misdemeanor shoplifting under 

Proposition 47, the Safe Neighborhoods and Schools Act. (Pen. Code, §§ 1170.18, 459, 

459.5.)1 The People request this court to reverse the order on the ground defendant’s 

burglary conviction is ineligible for reduction because there is evidence defendant 

intended to commit a conspiracy when he committed the burglary. We disagree and 

affirm the judgment. 

II

FACTUAL AND PROCEDURAL BACKGROUND

In 2000, the People charged defendant by felony information with commercial 

burglary (count 1; § 459) and petty theft with a prior (count 2; § 666). The People 

additionally alleged defendant had three prison priors (§ 667.5, subd. (b)). Count 1 of the 

information states that on January 18, 2000, defendant willfully and unlawfully entered a 

Home Depot store with intent to commit theft and a felony. Count 2 alleges that in a 

separate but related offense also committed on January 18, 2000, defendant willfully and 

unlawfully stole personal property from Home Depot. 

On March 1, 2000, pursuant to an oral plea agreement, defendant pled guilty to 

commercial burglary (count 1; § 459). In return, the court sentenced defendant to two 

years in state prison and dismissed the remaining count and allegations. On March 1, 

2000, defendant also signed a felony plea form, acknowledging he agreed to plead guilty 

 

1 Unless otherwise noted, all statutory references are to the Penal Code.
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to count 1, burglary, in exchange for a two-year sentence and dismissal of the remaining 

charges and allegations. 

On April 14, 2015, defendant filed a form application for reduction of his felony 

commercial burglary conviction to a misdemeanor under section 1170.18, subdivision (f) 

(felony reduction application). Defendant’s attorney stated on the form application,

under penalty of perjury, that “Defendant believes the value of the check or property does 

not exceed $950,” and that defendant had completed his sentence on the felony. The 

People filed a form response objecting to defendant’s felony reduction application on the 

ground defendant had not met his burden of proof.

The trial court sent the parties a notice of setting a hearing on defendant’s felony 

reduction application for the purpose of determining the facts of the commercial burglary 

offense. The hearing notice stated: “Need facts of 459 (2nd) PC.”2

On January 8, 2016, the court granted defendant’s felony reduction application, 

and ordered defendant’s commercial burglary felony reduced to misdemeanor shoplifting

(§ 459.5). During the hearing on the felony reduction application, defendant’s attorney 

informed the court that “[t]he codefendant in this matter stole a package of Velcro and 

intended to return it for cash. The total is $94.50.” 

 

2 The court indicated on the form notice that defendant was still serving a 

sentence on the felony count but this appears to have been incorrect. Defendant may 

have still been in custody, serving a sentence on another conviction, but would not have 

still been in custody for the commercial burglary count, since the term was two years and 

defendant pled guilty in March 2000.
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In response, the prosecutor requested to file the police report under seal and 

argued that defendant’s commercial burglary conviction was not eligible for reduction to 

a misdemeanor under Proposition 47 because it was an uncharged conspiracy. The 

prosecutor noted that the police report indicated that Anthony Morgan told the police he 

was approached by defendant before entering the Home Depot store with defendant. 

Defendant suggested they go to the Home Depot, steal items from the store, and then 

shortly thereafter return the stolen items to the store and exchange them for cash. Their 

plan was to steal the box of Velcro and return it for cash. The prosecutor argued that the 

offense was ineligible for sentence reduction because conspiracy theft is a wobbler, and 

therefore defendant’s conviction should remain a felony conviction. The trial court 

disagreed, noting conspiracy was not charged and there was no information on whether 

Morgan was charged in the case. The court found that defendant’s commercial burglary 

offense was eligible for reduction to a misdemeanor and ordered the police report filed 

under seal. 

III

ELIGIBILITY FOR SENTENCE REDUCTION

The People contend defendant’s burglary conviction is ineligible for reduction to a 

misdemeanor pursuant to section 1170.18 because defendant failed to meet his burden of 

proving eligibility. We disagree.

A. Applicable Law

“‘On November 4, 2014, the voters enacted Proposition 47, “the Safe 

Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the 
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next day. [Citation.]’ [Citation.] Section 1170.18 ‘was enacted as part of Proposition 

47.’ [Citation.] Section 1170.18 provides a mechanism by which a person currently 

serving a felony sentence for an offense that is now a misdemeanor, may petition for a 

recall of that sentence and request resentencing in accordance with the offense statutes as 

added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in 

subdivision (a) of section 1170.18, shall have his or her sentence recalled and be 

‘resentenced to a misdemeanor . . . unless the court, in its discretion, determines that 

resentencing the petitioner would pose an unreasonable risk of danger to public safety.’

[Citation.]” (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2 (T.W.).)

“Section 1170.18, subdivision (a) provides: ‘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 . . . .’” (T.W., supra, 236 Cal.App.4th at p. 651.) 

“[S]ection 1170.18 clearly and unambiguously states, ‘A person currently serving 

a sentence for a conviction, whether by trial or plea’ of eligible felonies may petition for 

resentencing to a misdemeanor. [Citation.]” (T.W., supra, 236 Cal.App.4th at p. 652.) 

“After a petitioner is found to be eligible, the trial court must grant the petition for 

reduction of sentence unless the court finds in its discretion that the petitioner poses an 

unreasonable risk of committing a very serious crime. [Citation.] The statute does not 

otherwise automatically disqualify a petitioner and nothing in section 1170.18 reflects an 
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intent to disqualify a petitioner because the conviction was obtained by plea agreement.”

(Ibid.) Thus, a defendant is “entitled to petition for modification of his sentence, 

notwithstanding the fact his conviction was obtained by a plea agreement.” (Id. at p. 653, 

fn. omitted.) 

Similarly, a defendant who has completed a sentence for a crime may file an 

application under Proposition 47 to reduce his or her felony conviction to a misdemeanor. 

Section 1170.18, subdivision (f), states: “A person who has completed his or her 

sentence for a conviction, whether by trial or plea, of a felony or felonies who would 

have been guilty of a misdemeanor under this act had this act been in effect at the time of 

the offense, may file an application before the trial court that entered the judgment of 

conviction in his or her case to have the felony conviction or convictions designated as 

misdemeanors.” Subdivision (g) of section 1170.18 provides: “If the application 

satisfies the criteria in subdivision (f), the court shall designate the felony offense or 

offenses as a misdemeanor.” 

Among the crimes reduced to misdemeanors by Proposition 47 “are certain second 

degree burglaries where the defendant enters a commercial establishment with the intent 

to steal. Such offense is now characterized as shoplifting as defined in new section 

459.5.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).) Section 459.5, 

subdivision (a), provides: “Notwithstanding Section 459, shoplifting is defined as 

entering a commercial establishment with intent to commit larceny while that 

establishment is open during regular business hours, where the value of the property that 

is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any 
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other entry into a commercial establishment with intent to commit larceny is burglary.” 

“Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No 

person who is charged with shoplifting may also be charged with burglary or theft of the 

same property.” (§ 459.5, subd. (b).)

In the instant case, when defendant requested his felony burglary conviction 

reduced to misdemeanor shoplifting under Proposition 47, he had already completed his 

sentence on the burglary conviction. Therefore his request was an application for

redesignation under subdivisions (f) and (g) of section 1170.18 (a felony reduction 

application).

B. Eligibility of Evidence Outside the Record of Conviction

An applicant seeking redesignation of a felony as a misdemeanor bears the burden

of producing evidence that the felony would have been a misdemeanor under Proposition 

47. (Sherow, supra, 239 Cal.App.4th at pp. 879-880; People v. Perkins (2016) 244 

Cal.App.4th 129, 140 (Perkins); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449; 

Evid. Code, § 500.) We reject defendant’s contention that in determining eligibility for 

redesignation, evidence establishing or refuting eligibility is limited to the record of 

conviction. Evidence may come from within or outside the record of conviction, or from 

undisputed facts acknowledged by the parties. (Perkins, at p. 140 [any probative 

evidence]; Sherow, at p. 880 [petitioning defendant’s testimony].) Section 1170.18, 

enacted by Proposition 47, is silent as to what evidence the court may consider when

determining eligibility. There is no express statutory limitation to evidence in the record 

of conviction. 
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Furthermore, limiting evidence to the record of conviction is inconsistent with this 

court’s decision in Perkins, supra, 244 Cal.App.4th at pages 140-141 and footnote 5, as 

well as Sherow, supra, 239 Cal.App.4th at page 880, which suggest that a petitioner 

seeking resentencing under Proposition 47 is not limited to the record of conviction in 

meeting his or her initial burden of proof to establish a Proposition 47-sanctioned 

misdemeanor. (Perkins, at p. 140, and Sherow, at p. 880.) 

The cases cited by defendant for the proposition evidence of eligibility are limited 

to the record of conviction are not dispositive. The California Supreme Court recently 

granted review of People v. Triplett (2016) 244 Cal.App.4th 824 (Triplett), rev. granted 

April 27, 2016, S233172, 2016 Cal. LEXIS 2431, 201 Cal.Rptr.3d 255. Thus Triplett has 

no precedential value. (Cal. Rules of Court, rules 8.1105(e)(1), 8.1115(a).) People v. 

Bradford (2014) 227 Cal.App.4th 1322, 1327 (Bradford) and People v. Guerrero (1988) 

44 Cal.3d 343, 355, also cited by defendant, concern Proposition 36 (§ 1170.126) and 

other unrelated sentencing issues, not resentencing under Proposition 47. 

The initial determination under Proposition 36 is predominantly legal, whereas the 

initial determination under Proposition 47 is factual. Under Proposition 36 the initial 

showing requires evidence of the existence of specified convictions contained in the 

record of conviction. In contrast, under Proposition 47 the initial showing for 

resentencing requires evidence of facts that would support a conviction of a misdemeanor 

that was enacted or amended by Proposition 47. This may require evidence outside of the 

record of conviction, particularly if the defendant entered a guilty plea. As such, the trial 

court is not limited to the record of conviction in its consideration of the evidence to 
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adjudicate eligibility for resentencing under Proposition 47. (Perkins, supra, 244 

Cal.App.4th at p. 140 [any probative evidence]; Sherow, supra, 239 Cal.App.4th at p. 

880.)

Perkins, supra, 244 Cal.App.4th at page 140 and Sherow, supra, 239 Cal.App.4th 

at page 880 support the more persuasive view that evidence outside the record of 

conviction may be considered when determining resentencing eligibility. Restricting 

evidence to the record of conviction contravenes Proposition 47’s express purpose (Voter 

Information Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, p. 70, § 3, subds. (3), (4), 

(6)3), as well as departs from the principle that, “[w]hen interpreting statutory provisions 

enacted by voter initiative or legislative action, our primary purpose is to ascertain and 

effectuate the intent of the enactors.” (Alejandro N. v. Superior Court (2015) 238 

Cal.App.4th 1209, 1223-1224.) 

Excluding evidence outside the record of conviction in many instances would 

impede a defendant from meeting his or her burden of proving eligibility under 

Proposition 47, which often turns on establishing key facts not previously adjudicated, 

particularly when a defendant has pled guilty. Such a limitation under Proposition 47 

would result in potentially insurmountable obstacles to obtaining resentencing relief,

which a petitioning defendant might be entitled to if admissible evidence from outside the 

record were considered. Accordingly, we conclude parties to a petition for resentencing 

under Proposition 47 are not limited to evidence contained in the record of conviction. 

 

3 http://vig.cdn.sos.ca.gov/2014/general/pdf/complete-vig.pdf
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(Perkins, supra, 244 Cal.App.4th at p. 140 and Sherow, supra, 239 Cal.App.4th at p. 

880.)

Here, the record of defendant’s conviction does not suffice to establish a prima 

facie case for resentencing, no doubt because there was no reason for either party to fix 

the value of the property stolen when the burglary guilty plea was taken. (See Bradford, 

supra, 227 Cal.App.4th at pp. 1333-1334 [prosecutor had no incentive to plead and prove 

factors not relevant to a case, but which later became relevant to resentencing under 

§ 1170.126].) Under such circumstances, defendant was required to establish 

redesignation eligibility either by stipulated facts or extra-record evidence. (People v. 

Sherow, supra, 239 Cal.App.4th at p. 880 [“[a] proper petition could certainly contain at 

least [petitioner’s] testimony about the nature of the items taken”]; Perkins, supra, 244 

Cal.App.4th at p. 140 [petitioner ‘should describe the stolen property and attach some 

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

evidence showing he is eligible for relief”].) 

C. Sufficiency of Evidence of Value of Stolen Property

The factual issue of value of the stolen property was never addressed below during 

the hearing on defendant’s felony reduction application because there was no dispute that 

the value of the property did not exceed $950. The People argued solely that defendant’s 

burglary conviction was ineligible for reduction to a misdemeanor because there was 

evidence defendant entered Home Depot with the intent to commit a conspiracy. 

Proposition 47 does not apply to a conspiracy conviction.
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Although the record of conviction (here, the accusatory pleading, plea agreement, 

and plea hearing transcript) does not disclose the value or nature of the stolen property, 

the People forfeited any objection to defendant not proving that the property value did not 

exceed $950. During the hearing on defendant’s felony reduction application, defense 

counsel informed the court that “[t]he codefendant in this matter stole a package of 

Velcro and intended to return it for cash. The total is $94.50.” The prosecutor did not 

disagree with this representation of the value of the stolen property or object based on 

evidentiary grounds to defense counsel’s representation of the value of the property 

value. Instead, the prosecutor responded by requesting the court to file the police report 

under seal and arguing based on the police report that the crime was ineligible as a 

conspiracy. The silence of the prosecutor at the time of defense counsel’s factual 

recitation of the value of the stolen property is sufficient to establish an adoptive 

admission here. (People v. Oehmigen (2014) 232 Cal.App.4th 1, 10.) 

In addition, the prosecutor requested and defense counsel did not object to the trial 

court filing the police report, which contained evidence of the property value. With 

proper foundation, a police report is admissible under the official records exception to the 

hearsay rule. (Evid. Code, § 1280.) It is admissible however, only to those facts 

observed by the public employee who has the duty to observe the facts. Statements of 

individuals referenced in the report, are admissible only if they fall within some other 

exception to the hearsay rule.

The prosecution’s request to file the police report and the defense’s failure to 

object forfeited any objection by the parties to the lack of a proper foundation for 
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admitting into evidence the police report. Additionally, the prosecution did not object to 

the trial court relying on the facts and attached receipt copies included in the police report

establishing the value of the stolen property. The People thus forfeited any objection to 

defendant not meeting his burden of proving that the value of the property did not exceed 

$950, and the trial court reasonably concluded the value of the stolen property did not 

exceed $950, as established by the police report and defense counsel’s statement of the 

property value.

D. Conspiracy to Commit Burglary

The People contend defendant’s commercial burglary conviction is not eligible for 

reduction to misdemeanor shoplifting under Proposition 47 because the crime was a 

conspiracy. The People argue it is irrelevant that they did not allege conspiracy in the 

complaint. We disagree. 

“Conspiracy is an inchoate crime. [Citation.] It does not require the commission 

of the substantive offense that is the object of the conspiracy. [Citation.] ‘As an inchoate 

crime, conspiracy fixes the point of legal intervention at [the time of] agreement to 

commit a crime,’ and ‘thus reaches further back into preparatory conduct than attempt 

. . . .’ [Citation.]” (People v. Swain (1996) 12 Cal.4th 593, 599-600 (Swain).)

A conspiracy is defined as “‘two or more persons conspir[ing]’ ‘[t]o commit any 

crime,’ together with proof of the commission of an overt act ‘by one or more of the 

parties to such agreement’ in furtherance thereof. (Pen. Code, § 182, subd. (a)(1), 184.) 

[¶] ‘Conspiracy is a “specific intent” crime. . . . The specific intent required divides 

logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to 
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commit the offense which is the object of the conspiracy. . . . To sustain a conviction for 

conspiracy to commit a particular offense, the prosecution must show not only that the 

conspirators intended to agree but also that they intended to commit the elements of that 

offense.’ [Citation.] In some instances, the object of the conspiracy ‘is defined in terms 

of proscribed conduct.’ [Citation.] In other instances, it ‘is defined in terms of . . . a 

proscribed result under specified attendant circumstances.’ [Citation.]” (Swain, supra,

12 Cal.4th at p. 600.) Proposition 47 does not apply to convictions for conspiracy. 

(People v. Segura (2015) 239 Cal.App.4th 1282.)

Like aiding and abetting, conspiracy is itself a theory of liability. (People v. Hajek 

& Vo (2014) 58 Cal.4th 1144, 1201 (Hajek & Vo).) We recognize conspiracy need not in 

all instances be charged, so long as the defendant is put on notice the prosecution is 

asserting the theory against the defendant. (Ibid.) In Hajek & Vo, the defendants argued 

that “the use of an uncharged conspiracy violated due process by depriving them of 

notice of the charges against them.” (Ibid.) The court in Hajek & Vo rejected the 

argument, stating that “‘“Due process of law requires that an accused be advised of the 

charges against him so that he has a reasonable opportunity to prepare and present his 

defense and not be taken by surprise by evidence offered at his trial.”’” The court in 

Hajek & Vo, concluded the defendants were so advised because, “by the time the trial 

began, defendants were well aware the prosecutor intended to proceed on a conspiracy 

theory to establish derivative liability.” (Ibid.) 

This was not the case in the instant case. The complaint and information do not 

allege defendant conspired with anyone in committing the burglary. There is no mention 
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of a conspiracy or of anyone participating with defendant in the burglary. Count 1 

merely states that defendant willfully and unlawfully entered the Home Depot with intent 

to commit theft. Count 2 states defendant willfully and unlawfully stole, took, and 

carried away personal property of Home Depot. 

Unlike in Hajek & Vo, supra, 58 Cal.4th 1144, there was no preliminary hearing 

or trial. There being no evidence in the record to the contrary, we must conclude that at 

the time defendant pled guilty and was sentenced, he did not receive notice he was being 

charged with committing a conspiracy. Therefore, regardless of whether there was 

admissible evidence supporting a conspiracy conviction, defendant is not barred from 

reducing his felony burglary conviction to misdemeanor shoplifting. Holding otherwise 

would violate defendant’s due process rights to proper notice of being charged with a 

conspiracy. 

Furthermore, allowing the People to establish ineligibility for sentence reduction 

based on conspiracy, after defendant pled guilty to burglary, with intent to commit a 

theft, not a conspiracy, would violate double jeopardy and fair trial principles. Double 

jeopardy forbids a second trial for the purpose of affording the People a second 

opportunity to provide evidence it failed to produce in the first proceeding. (Burks v. 

United States (1978) 437 U.S. 1, 11.) Section 654, subdivision (a) “provides that ‘[a]n 

acquittal or conviction and sentence under any one [provision of law] bars a prosecution 

for the same act or omission under any other.’ In Kellett v. Superior Court (1966) 63 

Cal.2d 822, 827 [], the court stated that ‘[w]hen, as here, the prosecution is or should be 

aware of more than one offense in which the same act or course of conduct plays a 
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significant part, all such offenses must be prosecuted in a single proceeding unless 

joinder is prohibited or severance permitted for good cause. Failure to unite all such 

offenses will result in a bar to subsequent prosecution of any offense omitted if the initial 

proceedings culminate in either acquittal or conviction and sentence.’” (Sanders v. 

Superior Court (1999) 76 Cal.App.4th 609, 614, fn. omitted; in accord, People v. 

Hamernick, 2016 Cal.App. LEXIS 562, pp. 26-27.) The People’s failure to charge 

defendant with a conspiracy and prosecute him for that offense bars the People from postconviction reliance on the uncharged theory of conspiracy as a basis for preventing him 

from benefiting from sentence reduction under Proposition 47. 

Furthermore, the People failed to establish at the hearing on defendant’s felony 

reduction application that defendant entered Home Depot with intent to commit a 

conspiracy. The People relied solely on the police report to establish a conspiracy as a 

basis of ineligibility. As discussed above, only those facts in the police report observed 

by the reporting officer or statements in the report falling within some other hearsay 

exception constitute admissible evidence that can be relied upon in establishing a

conspiracy. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 430-431.) 

The admissible facts in the police report do not establish that defendant and 

Morgan entered Home Depot with intent to commit a conspiracy. Rather, the admissible 

statements in the police report indicate defendant and Morgan agreed to shoplift at Home 

Depot before entering the Home Depot store, and then entered Home Depot with intent to 

commit theft, not a conspiracy. Accordingly, we conclude the trial court did not err in 
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finding defendant’s felony commercial burglary conviction was eligible for reduction to a 

misdemeanor under Proposition 47.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

HOLLENHORST

J.