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Name: People v. Johnson
Case #: D068384
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/26/2016

Petitioning defendant has the burden of proving his initial eligibility for Proposition 47 resentencing. This is an opinion on rehearing. In August 2013, Johnson pleaded guilty to one count of receiving stolen property (Pen. Code, former § 496, subd. (a)). The factual basis for the plea was his unlawful possession stolen property. In April 2015, Johnson petitioned to reduce the offense to a misdemeanor. The prosecution opposed resentencing because Johnson had failed to show eligibility for relief. Johnson countered that because the record of conviction was silent on the value of the property, the court could find only the least adjudicated offense under the record, which was a misdemeanor. The court denied the petition, finding it was confined to the record of conviction and, based on the record, Johnson failed to prove his eligibility. Johnson appealed. Held: Affirmed. Proposition 47 amended Penal Code section 496, subdivision (a) to provide that if the value of the property does not exceed $950, the offense is punishable as a misdemeanor. It also created a procedure whereby qualified defendants could petition for resentencing. Proposition 47 requires the petitioning defendant to establish initial eligibility for relief, i.e., that if he would have been convicted of a misdemeanor under that initiative (Pen. Code, § 1170.18, subd. (a)). In a Proposition 47 proceeding, the trial court is not limited to considering the record of conviction. Unlike a Proposition 36 proceeding, where the defendant shows eligibility for Three Strikes resentencing based on current and prior convictions, the facts supporting a Proposition 47 petition may not appear on the record. The trial court erred in denying Johnson’s petition based on the record of conviction. However, as the record has no evidence of the value of the stolen items, Johnson failed to meet his initial burden of showing eligibility for resentencing. The case is affirmed without prejudice to Johnson refiling his petition with the requisite evidence.

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