The petitioner bears the burden of proving he is eligible for resentencing under Proposition 47. Rivas-Colon went into the NFL Shop at Pier 39 in San Francisco and attempted to leave with $1,437.74 worth of merchandise without paying. He pled guilty to second degree commercial burglary (Pen. Code, § 459). After Proposition 47 passed, Rivas-Colon petitioned for resentencing of his felony burglary conviction based on newly added Penal Code section 459.5, which classifies shoplifting as a misdemeanor “where the value of the property that is taken or intended to be taken does not exceed [$950].” The People argued Rivas-Colon was ineligible for resentencing under Proposition 47 because he stole $1,437.74 in merchandise, well above the $950 limit for shoplifting. The trial court agreed and denied Rivas-Colon’s petition. He appealed, arguing that the prosecution had not met its burden to establish the value of the property exceeded $950. Held: Affirmed. Agreeing with People v. Sherow (2015) 239 Cal.App.4th 875, the court held that the defendant has the initial burden to establish eligibility for resentencing, which in second degree burglary cases means the petitioner has the burden of proving the value of the property he took did not exceed $950. Here, Rivas-Colon offered no evidence or argument to prove the value of the merchandise he stole did not exceed $950. Accordingly, the trial court properly denied his petition because he failed to carry his burden. The court also rejected Rivas-Colon’s argument that his trial attorney was ineffective for failing to specify the amount of merchandise in the resentencing petition because the record did not reveal the trial attorney’s reason for declining to specify the value.

In Proposition 47 resentencing proceedings, there is no Sixth Amendment right to a jury trial on the value of property taken during the crime. Rivas-Colon also argued that under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Blakely v. Washington (2004) 542 U.S 296, 303, he was entitled to a jury trial on the value of the stolen property. The Court of Appeal disagreed. “[A] defendant’s Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt does not apply to limits on downward sentence modifications due to intervening laws.” (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304, citing Dillon v. United States (2010) 560 U.S. 817, 828-829.) In Kaulick, the court applied this rule to find that a jury trial was not required when determining the issue of a defendant’s dangerousness in the context of Proposition 36 resentencing. Agreeing with the reasoning in Dillon and Kaulick, the Court of Appeal here concluded that there is no right to a jury trial on the value of the property on a petition for resentencing brought pursuant to Proposition 47.