California, United States of America
The following excerpt is from People v. Schattschneider, F070791 (Cal. App. 2016):
We reverse the order denying the petition for resentencing, and remand to the trial court for further proceedings on the petition. On remand, defendant bears the initial burden to establish his eligibility for resentencing under Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow).) Resentencing on second degree burglary is not automatic. Defendant must show he "would have been guilty of a misdemeanor ... had [Proposition 47] been in effect at the time of the offense." ( 1170.18, subd. (a).) Depending on the circumstances surrounding the offense,
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defendant may or may not be eligible for relief. If he can prove he committed an offense that is now classified as a misdemeanor, such as shoplifting ( 459.5) or petty theft ( 460.5, subd. (a)), he may be eligible for resentencing. Defendant should include with his petition evidence proving his eligibility. (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.) The petition "could certainly contain at least [defendant's] testimony about the nature of the items taken" (Sherow, supra, at p. 880) and "should describe the stolen property and attach some evidence, whether a declaration, court documents, record citations, or other probative evidence showing he is eligible for relief" (People v. Perkins, supra, at p. 140). If defendant makes "the initial showing[,] the court can take such action as appropriate to grant the petition or permit further factual determination." (Sherow, supra, at p. 880.) Further factual determinations might include whether defendant was previously convicted of a super strike and whether a new sentence would result in an unreasonable risk of danger to public safety.
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