Filed 1/13/22 P. v. James CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN LEE JAMES,

Defendant and Appellant.

 B313321

 (Los Angeles County

 Super. Ct. No. A195553)

APPEAL from an order of the Superior Court of Los 

Angeles County, Hector M. Guzman, Judge. Affirmed.

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Chung L. Mar and Noah P. Hill, Deputy 

Attorneys General, for Plaintiff and Respondent.

——————————
2

Marvin Lee James appeals from an order denying his 

petition to redesignate a prior felony conviction for burglary as

a misdemeanor offense pursuant to Penal Code section 1170.18, 

subdivision (f).

1 Because the superior court properly ruled that 

James was ineligible for relief as a matter of law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 1979, James was convicted of one count of

second degree burglary pursuant to a guilty plea. He was 

sentenced to a term of 16 months in state prison.

On May 5, 2021, James filed a section 1170.18 petition, 

seeking to have his prior burglary conviction redesignated as 

a misdemeanor. In the printed form petition, James checked the 

boxes alleging that the amount in question was not more than 

$950, and that he did not have a prior conviction for an offense 

specified in section 667, subdivision (e)(2)(C)(iv) or which 

required registration as a sex offender under section 290, 

subdivision (c). In their response, the People opposed the

petition, asserting that James was ineligible for section 1170.18 

relief because he had a prior conviction for violation of section 

288a, subdivision (c).

On May 17, 2021, the superior court summarily denied the 

petition. In its minute order, the court stated James was 

disqualified from relief under section 1170.18 because he had a 

prior conviction for an offense listed in section 667, subdivision 

(e)(2)(C)(iv). The court identified the disqualifying offense as a 

violation of section 288a, subdivision (c). 

1 Unless otherwise stated, all statutory references are to 

the Penal Code.
3

James timely appealed. 

DISCUSSION

In 2014, California voters approved Proposition 47, the Safe 

Neighborhoods and Schools Act. (People v. Page (2017) 3 Cal.5th 

1175, 1179.) Proposition 47 “reduced the punishment for certain 

theft- and drug-related offenses, making them punishable as 

misdemeanors rather than felonies.” (Ibid.) Proposition 47 also 

added section 1170.18, which permits an eligible person serving 

a sentence for an enumerated theft or drug offense to petition 

for recall of the sentence and resentencing. (§ 1170.18, 

subds. (a), (b).) A person who has already completed a felony

sentence for an enumerated offense may petition to have the

conviction redesignated as a misdemeanor. (§ 1170.18, subds. (f), 

(g).) 

The relief afforded by section 1170.18, subdivision (i),

however, “does not apply to a person who has one or more prior 

convictions for an offense specified in clause (iv) of subparagraph 

(C) of paragraph (2) of subdivision (e) of Section 667 or for an 

offense requiring registration pursuant to subdivision (c) of 

Section 290.” “That is, if a person has a prior conviction for one of 

the so-called super strikes, . . . he or she is expressly disqualified 

from Proposition 47 relief.” (People v. Walker (2016) 

5 Cal.App.5th 872, 876.) “ ‘[P]rior conviction[ ],’ as used in section 

1170.18, subdivision (i), refers to a conviction suffered any time 

before the court’s ruling on an application to have a felony 

conviction reclassified as a misdemeanor.” (Id. at p. 876; accord, 

People v. Casillas (2017) 13 Cal.App.5th 745, 750.) 

In this case, the superior court correctly determined that 

James was disqualified from relief under section 1170.18 based 
4

on his prior conviction for a super strike offense. According to 

two appellate opinions filed by the Fourth District,2 James was

convicted on April 12, 1996 of oral copulation on a person 

under the age of 14 years in violation of former section 288a, 

subdivision (c).

3 Because this sexual offense is one of the super 

strike offenses listed in section 667, subdivision (e)(2)(C)(iv), 

James was ineligible for relief as a matter of law. 

On appeal, James does not dispute that he has a prior 

conviction for a disqualifying offense within the meaning of 

section 1170.18, subdivision (i). Rather, he argues that the

superior court was required to hold an evidentiary hearing on 

his eligibility because he established a prima facie case when he 

checked the box in his petition averring that he did not have any 

disqualifying prior convictions, irrespective of the accuracy of 

such averment. This argument lacks merit. 

In a petition for relief under section 1170.18, the “ultimate 

burden of proving . . . eligibility lies with the petitioner.” (People 

v. Romanowski (2017) 2 Cal.5th 903, 916.) At the prima facie 

stage, the initial screening of a section 1170.18 petition “is 

based on a review of the petition itself, generally prepared by the 

petitioner in propria persona, as well as the record of conviction. 

[Citation.] If the court finds, based on the petition and its review 

of the record, that there is a prima facie basis for relief, the court 

2 On this court’s own motion, we take judicial notice of 

the prior appellate opinions in People v. James (Nov. 9, 2021,

E077377) [nonpub. opn.] and People v. James (Aug. 24, 2021, 

E075837) [nonpub. opn.]. (Evid. Code, §§ 452, 459, subd. (a).) 

3 Effective January 1, 2019, section 288a was renumbered 

to section 287. (Stats. 2018, ch. 423, § 49.)
5

should then hold ‘a full qualification hearing at which any 

additional evidence may be received on the issue of eligibility.’ ” 

(People v. Washington (2018) 23 Cal.App.5th 948, 955.) An 

“evidentiary hearing may be ‘required if . . . 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.’ ” (Romanowski, at p. 916.) 

In reviewing a section 1170.18 petition, however, “the 

court has no obligation to hold an evidentiary hearing where 

the petitioner’s eligibility or ineligibility for relief is evident as 

a matter of law.” (People v. Simms (2018) 23 Cal.App.5th 987, 

993.) “In many cases, the threshold issue of eligibility for

relief . . . may be determined as a matter of law from the 

uncontested allegations of the petition or from the record of 

conviction.” (Ibid; see People v. Fedalizo (2016) 246 Cal.App.4th 

98, 109 [decision on eligibility for section 1170.18 relief “typically 

can be made without a hearing because eligibility is often obvious 

on the incontrovertible written record”]; People v. Perkins (2016)

244 Cal.App.4th 129, 138 [“superior court often will be able to 

grant or deny [section 1170.18] relief without a 

hearing. . . . [Citation.] . . . [Citations.] . . . simply by consulting 

the record of conviction or evidence submitted by the parties”].) 

Here, the record of conviction established as a matter of law that

James was ineligible for relief because he had a prior conviction 

for oral copulation on a minor under the age of 14 years. 

Accordingly, no evidentiary hearing was required. 

On appeal, James speculates that the superior court may 

have simply accepted the People’s allegation that James had a 

disqualifying prior conviction without examining the record of 

conviction or requiring the parties to submit supporting evidence. 
6

However, an order denying a section 1170.18 petition “ ‘ “ ‘is 

presumed correct; all intendments are indulged in to support it 

on matters as to which the record is silent, and error must be 

affirmatively shown.’ ” [Citation.] In addition, we must “ ‘view

the record in the light most favorable to the trial court’s 

ruling.’ ” ’ ” (People v. Simms, supra, 23 Cal.App.5th at p. 994.) 

Thus, in the absence of evidence to the contrary, we presume the 

superior court examined the relevant record of conviction prior to

determining that James had been convicted of an offense that

disqualified him from relief under section 1170.18. On this 

record, James has failed to demonstrate error in the denial 

of his petition. 

DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED. 

VIRAMONTES, J.*

We concur:

LAVIN, Acting P. J. EGERTON, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.