Proposition 47 petitioner’s right to be present was violated where he did not waive his right to attend contested proceedings to determine the value of property that he stole. As part of a plea bargain, Simms pleaded no contest to felony grand theft from a person and two counts of felony second degree burglary based on allegations that he took money from a tire store on two separate days. After the passage of Proposition 47, he filed a petition to reduce the offenses to misdemeanors. He waived his right to be present for a hearing on the petition on the conditions that the People did not object and the trial court was willing to grant the requested relief. The trial court conducted two evidentiary hearings on the amount taken at the prosecution’s request. Simms, who was in prison, was not present, but his attorney was. The court granted the petition as to one of the burglary offenses (and an offense arising from another case) but denied it as to the other offenses. Simms appealed, arguing that he was denied his right to be present during the eligibility proceedings. Held: Reversed and remanded for a further eligibility hearing where Simms must be given the opportunity to be present. A criminal defendant has constitutional and statutory rights to be personally present during Proposition 47 resentencing proceedings, subject to certain limitations. The Court of Appeal here concluded that where “a factual contest bearing on eligibility for Proposition 47 relief requires that an evidentiary hearing be held, . . . the petitioning defendant has a right to be present, absent a valid waiver.” The determination of whether the value of the property that Simms stole disqualifies him from resentencing under Proposition 47 is a factual finding and his limited waiver of his right to be present did not apply to the evidentiary hearings in this case. The violation of Simms’ right to be present was not harmless because the eligibility issue turned on disputed facts that Simms may have testified about and the record was unclear. [Editor’s Note: Although the record was equivocal, the Court of Appeal also concluded that substantial evidence supported the trial court’s finding that more than $950 was taken from the tire store each day. The trial court resolved doubts against Simms as the party with the burden of proof.]

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149575.PDF