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Name: People v. Sherow
Case #: D067605
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/11/2015

A person seeking to have felony second degree burglary convictions reduced to misdemeanor shoplifting (Pen. Code, § 459.5) under Proposition 47 has the burden to show the property loss in each count did not exceed $950. Sherow was convicted of multiple counts of second degree burglary, a strike prior, and enhancements. He was originally sentenced to 19 years, 4 months in prison. In November 2014, Sherow filed a petition for resentencing on five of the burglary counts pursuant to Proposition 47. The prosecutor opposed the request, contending that the losses exceeded $950. Relief was denied and Sherow appealed the decision as to two of the counts. He claimed the record did not show losses in excess of $950 per count. Held: Affirmed. Under section 1170.18, Sherow had the burden to show the property loss in each of the counts did not exceed $950, and thus fell within the new statutory definition of shoplifting (Pen. Code, § 459.5). Sherow’s petition was a general request for resentencing on all counts without any discussion regarding each count, or reference to the facts or any argument. Proposition 47 does not explicitly allocate the burden of proof regarding a defendant’s entitlement to resentencing. However, Sherow was validly convicted under the law applicable at the time of trial. He therefore bears the initial burden of establishing eligibility for resentencing under section 1170.18. As Sherow’s petition provided no information which reflected his eligibility for resentencing, and the facts of the offenses were known to him, it was properly denied. The trial court’s order was affirmed without prejudice to subsequent consideration of a properly filed petition.