A felony conviction is eligible for reduction to a misdemeanor under Proposition 47 even if there is a gang enhancement (Pen. Code, § 186.22, subd. (b)) attached to it. Sweeney filed a Proposition 47 petition to reduce his felony convictions for receiving stolen property to misdemeanors. The prosecutor argued the convictions were ineligible for reduction because there was a gang enhancement attached to each one. The trial court denied the petition. Sweeney appealed. Held: Reversed and remanded. Proposition 47 reduced a number of nonviolent drug and theft offenses from felonies to misdemeanors and created mechanisms for a person who already suffered a felony conviction, “who would have been guilty of a misdemeanor” had Proposition 47 been in effect when he committed the offense, to be resentenced to a misdemeanor. The People argued that Sweeney’s convictions for receiving stolen property would not have been misdemeanors had Proposition 47 been in effect when he committed the offenses because section 186.22, subdivision (d) would have applied and it would have rendered the offense a wobbler, not a misdemeanor. Section 186.22, subdivision (d) provides that a misdemeanor committed for the benefit of a gang is elevated to a wobbler. However, section 186.22, subdivision (d) is an alternative punishment provision that must, as a matter of due process, be pleaded and proved. (People v. Mancebo (2002) 27 Cal.4th 735, 747.) Although the People alleged a gang enhancement under section 186.22, subdivision (b), that did not give Sweeney fair notice that the alternate penalty provision in subdivision (d) might apply because the two provisions are mutually exclusive. (See Lopez v. Superior Court (2008) 160 Cal.App.4th 824, 828-833.) The prosecution did not raise 186.22, subdivision (d) until after defendant was convicted. Thus, Sweeny’s receiving stolen property convictions would have been misdemeanors if Proposition 47 had been in effect.

The fact that a felony conviction is a strike does not preclude Proposition 47 relief. The trial court found that Sweeney’s conviction was ineligible for Proposition 47 relief because the gang enhancement made it a strike. A felony accompanied by a gang enhancement is a strike. (Pen. Code, §§ 667, subd. (d)(1), 1192.7, subd. (c)(28).) However, there is “no general rule that a strike cannot be reduced to a misdemeanor under Proposition 47. (See, e.g., Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 1170.18; cf. People v. Superior Court (Alvarez) (1997) 15 Cal.4th 968, 981 [trial court can reduce a wobbler that would otherwise be a strike to a misdemeanor under Pen. Code, § 17, subd. (b)].)”

Simply alleging that a Proposition 47 petitioner “believes” the property was worth $950 or less is insufficient to establish eligibility for resentencing. Sweeney’s Proposition 47 petition alleged that he believed the stolen property he was convicted of receiving (a 1985 Oldsmobile and a 1984 Toyota van) were worth $950 or less in 1997 (the year he committed the offense). This is insufficient to establish eligibility for resentencing. The petitioner has the burden to show eligibility. “An affidavit based on ‘information and belief’ is hearsay and must be disregarded. [Citations.] Rather, the petitioner must indicate . . . the factual basis of his claim regarding the value of the stolen property.” (People v. Perkins (2016) 244 Cal.App.4th 129, 137 [internal quotations omitted].) Since the law was unsettled on this point when Sweeney filed his petition, he should be permitted to file an amended petition to make the requisite showing. While other courts have denied the petition without prejudice instead of permitting amendment, this could result in res judicata and timeliness issues. Allowing Sweeney leave to file an amended petition on remand avoids these problems.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E064273.PDF