Metropolitan News-Enterprise


Monday, October 19, 2015


Page 1


Defendant Has Burden of Proving Resentencing Rights Under Proposition 47—Court of Appeal


By a MetNews Staff Writer


 A defendant who petitions to reduce a felony conviction to a misdemeanor under Proposition 47 bears the burden of proving the right to relief, and is not entitled to a jury trial on the issue, the First District Court of Appeal ruled Friday.

Div. Five affirmed the denial of Joseph Rivas-Colon’s motion to reduce his conviction of commercial burglary to one of misdemeanor theft on the ground the value of the merchandise he attempted to remove from a retail store was not more than $950. The court said Rivas-Colon presented no evidence of the value of the items, making it unnecessary to consider his contention that the trial judge heard inadmissible evidence.

The crime took place in June 2013 at the NFL Shop at Pier 39 in San Francisco. According to a probation report, officers responding to a “theft call” spoke to witnesses, who said the defendant brought a bag into the store and filled it with baseball hats. When he attempted to leave the store, sensors went off and Rivas-Colon emptied the bag and asked store employees not to call the police.

Plea Agreement

A plea agreement was reached. Rivas-Colon pled guilty to commercial burglary, stipulating that the police report—which put the value of the merchandise at more than $1,400—contained a factual basis for the plea. Charges of grand theft and receiving stolen property were dropped.

 In December of last year, he petitioned the court to reduce the conviction to a misdemeanor under Proposition 47. The measure retroactively reduces theft-related offenses to misdemeanors when the value of the property stolen does not exceed $950.

Prosecutors opposed the petition, attaching the police report and a receipt showing that Rivas-Colon had taken 38 hats worth $1,437.74. The judge determined that the value of the merchandise exceeded the Proposition 47 threshold and denied the petition.

Presiding Justice Barbara J.R. Jones said the trial judge was correct.

Prior Case

She agreed with the Fourth District Court of Appeal, which previously held that the burden of proving the applicability of the initiative is on the defendant, as would normally be the case when a defendant seeks affirmative relief or presents an affirmative defense. Rivas-Colon did not satisfy that burden, filing a petition that was “completely devoid” of factual support for a finding that the value of the merchandise did not exceed $950, Jones said.

Nor can Rivas-Colon claim that his lawyer was ineffective for not presenting such evidence, the jurist concluded, because the attorney may have had good reasons for not doing so, given that Rivas-Colon had already stipulated to the facts contained in the police report.

Because there was no evidence supporting the petition, the jurist added in a footnote, there was no need to consider the defendant’s claim that the police report and store receipt were inadmissible for the purpose of determining the value of the property at the hearing on his petition.

Jones went on to say that the line of Supreme Court decisions beginning with Apprendi v. New Jersey does not establish a federal constitutional right to a jury trial to determine the value of stolen merchandise for purposes of Proposition 47 resentencing. Apprendi and later cases apply to facts relevant to sentencing, not to a claim by a defendant who has already been convicted and sentenced and is seeking to have the sentence reduced or set aside, she said.

The case is People v. Rivas-Colon, A144390.


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