Filed 12/10/24 P. v. Mason CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082405
v. (Super. Ct. No. CR44036)
NATHAN JEROME MASON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Heather B. Arambarri, and
Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Nathan Jerome Mason appeals from the trial court’s
postjudgment order denying his petition to reclassify his 1992 felony conviction for 1 second degree burglary (Pen. Code, § 459) to a misdemeanor pursuant to section
1170.18. On appeal, defendant contends that the trial court erred in denying his petition
because it was neither untimely nor precluded by this court’s prior unpublished opinion.
For the reasons explained post, we reverse the order denying defendant’s section 1170.18
petition and remand the matter for an evidentiary hearing.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1992, an information was filed charging defendant with second degree
burglary (§ 459) after he willfully and unlawfully entered a Miller’s Outpost with the
intent to commit theft. (People v. Mason (Nov. 4, 2022, E078686) [nonpub. opn.]
(Mason I).) That same day, defendant pleaded guilty as charged and was granted
probation on various terms and conditions. (Ibid.) Defendant subsequently violated
probation and was ordered to serve a prison sentence in this case, concurrent with another
case. (Ibid.)
1 All future statutory references are to the Penal Code.
2 On June 1, 2020, defendant personally filed a petition to reduce his 1992 felony
second degree burglary conviction to a misdemeanor pursuant to section 1170.18,
subdivision (f). (Mason I, supra, E078686.)
On December 14, 2020, the People filed an opposition, asserting defendant was
ineligible for relief because he “failed to meet [his] burden.” (Mason I, supra, E078686.)
After several continuances, the trial court heard defendant’s petition on September 2,
2021. Defendant was not present at the hearing. The prosecutor argued “the defense
cannot meet their burden in this case.” (Mason I, supra, E078686.) Appointed defense
counsel submitted. The trial court denied the petition without prejudice, erroneously
stating the petition was “under [section] 1361.8.” (Mason I, supra, E078686.)
Defendant subsequently appealed, and his counsel filed a brief pursuant to People
v. Wende (1979) 25 Ca1.3d 436 and Anders v. California (1967) 386 U.S. 738. Although
we offered defendant an opportunity to file a supplemental brief, defendant did not and
we dismissed the appeal as abandoned. (See Mason I, supra, E078686.) We also noted
that even if we were to exercise our discretion to conduct a Wende review, “defendant did
not show that he entered the commercial building to commit a theft, as opposed to
another felony, or that the amount in question was not more than $950.” (Mason I, supra,
E078686.)
On October 17, 2022, defendant filed a new section 1170.18 petition to reduce his
second degree burglary conviction to a misdemeanor in the trial court. In support,
defendant declared under penalty of perjury that “[o]n 09/10/1992, the defendant in the
3 above-captioned case was convicted of a felony violation of a crime that has now been
made a misdemeanor pursuant to Proposition 47, enacted November 4, 2014.” He further
declared that the crime he was convicted of was “Penal Code § 459 2nd Degree Burglary
(Shoplifting)” and that he “believes the value of the check or property does not exceed
$950.”
Defendant also attached a declaration in support of his section 1170.18 petition.
He declared under penalty of perjury as follows: “In 1992 I accepted a plea agreement
for a crime in which I did not commit. Under the advise [sic] of my public defender
insisting to my mother that it would be in my best interest to accept the D.A. plea
agreement because the prosecutor had witnesses that will testify that I committed the
crime and if I were to take the case to trial and be found guilty, tha[t] I would receive
more substantial time in sentencing, but if I were to accept the plea agreement I can go
free that same day with time served and probation. [¶] I was only eight[een] at the time
didn’t know my rights, never been to jail, scared from being threaten of substantial time
of incarceration if found guilty and wanting to get out of jail I accepted a plea agreement
for my freedom for a crime in which I did not commit. [¶] GOD’s honest truth I had
never been too, let alone ever heard of Corona, California before in my life prior to the
Riverside She[ri]ff’s Department posting a warr[a]nt for my arrest and being brought
there by the Riverside She[r]iff’s Dep[ar]tment. [¶] I was still attending high [school] I
didn[‘t] own a car and lived approximately 50 miles from the burglarized store in another
4 county San [Bernardino] county. Rialto, Ca which is the city in which I attended
E[isen]hower high school.”
Defendant further added that, despite maintaining his innocence, the “[c]ourt
documents/[p]olice [r]eports show: [¶] (1) That the building was entered during regular
business hours according to [p]olice [r]eports. [A]nd [¶] (2) that the value of the
property taken or intended to be taken was under $950 in value.” He also attached a copy
of the minute order from September 10, 1992, showing that the restitution fine imposed 2 in this case was $500.
On November 17, 2022, the People filed a response to the petition indicating that
defendant had “failed to meet burden.”
About seven months later, on June 8, 2023, defendant wrote a letter to the trial
court to inquire about the status of his petition and attached a copy of his October 2022
petition to his letter.
A hearing was held on August 9, 2023, concerning defendant’s case. His
appointed counsel advised the trial court that the petition was filed in pro per. The trial
court then ruled: “The Court notes that it was filed in pro per. The Court further notes
that the petition was early and that it was denied on September the 2nd, 2021. [¶] With
that the Court does go ahead and takes the matter off calendar today.”
2 There is no evidence in the record to suggest that any victim restitution was ever imposed in this case.
5 The copy of the October 6, 2022 petition mailed on June 8, 2023, meanwhile, was
inadvertently filed as a new petition on September 18, 2023. This petition was
summarily denied by the trial court on the same day on the grounds that the “[d]eadline to
file a Prop 47 was 11/5/22[.]” Defendant timely appealed.
III.
DISCUSSION
Defendant contends that the trial court erred by denying his section 1170.18
petition based on the grounds that it was untimely or precluded by our prior opinion from
defendant’s first appeal, Mason I. The People concede that defendant’s petition was not
untimely but maintain defendant has failed to show he burglarized a store with the intent
to commit theft as opposed to some other felony, that the amount in controversy was less
than $950, or that the theft occurred during normal business hours. Defendant replies that
the matter be remanded to the trial court with directions to conduct an evidentiary
hearing, and implicitly claims if necessary, allow defendant leave to amend the second
petition.
A. The Standard of Review
“We review a ‘[trial] court’s legal conclusions de novo and its findings of fact for
substantial evidence.’ [Citation.] The interpretation of a statute is subject to de novo
review on appeal. [Citation.] ‘In interpreting a voter initiative like [Proposition 47], [the
courts] apply the same principles that govern statutory construction.’ [Citation.] ‘“The
fundamental purpose of statutory construction is to ascertain the intent of the lawmakers
6 so as to effectuate the purpose of the law. [Citations.]”’ [Citation.] ‘In determining
intent, we look first to the words themselves. [Citations.] When the language is clear
and unambiguous, there is no need for construction. [Citations.] When the language is
susceptible of more than one reasonable interpretation, however, we look to a variety of
extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied,
the legislative history, public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part. [Citations.]’ [Citation.]” (People v.
Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins).)
B. Statutory Framework
In November 2014, the voters passed Proposition 47, the Safe Neighborhoods and
Schools Act. Proposition 47 reduced certain nonviolent drug and theft offenses to
misdemeanors. It also added section 459.5, which provides: “(a) Notwithstanding
[s]ection 459, shoplifting is defined as entering a commercial establishment with intent to
commit larceny while that establishment is open during regular business hours, where the
value of the property that is taken or intended to be taken does not exceed nine hundred
fifty dollars ($ 950). Any other entry into a commercial establishment with intent to
commit larceny is burglary . . . . [¶] (b) Any act of shoplifting as defined in subdivision
(a) shall be charged as shoplifting. No person who is charged with shoplifting may also
be charged with burglary or theft of the same property.”
Proposition 47 also enacted section 1170.18. A defendant seeking resentencing or
redesignation of a felony conviction as a misdemeanor may petition or file an application
7 pursuant section 1170.18. Specifically, section 1170.18 states that a defendant “may
petition for a recall of sentence” if the defendant was “serving a sentence for a conviction
. . . of a felony or felonies” and “would have been guilty of a misdemeanor under
[Proposition 47] had [Proposition 47] been in effect at the time of the offense.”
(§ 1170.18, subd. (a).) “Upon receiving a petition,” the trial court must determine
whether the defendant is entitled to relief. (§ 1170.18, subd. (b).) If the defendant is
entitled to relief, the defendant’s “felony sentence shall be recalled and the [defendant]
resentenced to a misdemeanor.” (§ 1170.18, subd. (b).) If the defendant has already
completed the sentence for the felony conviction for which the defendant seeks relief, the
defendant instead “may file an application . . . to have the felony conviction or
convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) “If the application
satisfies [the requisite criteria], the court shall designate the felony offense or offenses as
a misdemeanor.” (§ 1170.18, subd. (g).)
Originally, a petitioner had to file a petition or application within three-years of
the effective date of Proposition 47. (Compare § 1170.18, subd. (j) [petition or
application generally must be filed on or before Nov. 4, 2022] with former § 1170.18,
subd. (j) [petition or application generally must be filed within three years after the
effective date of Prop. 47].) Effective October 8, 2023, Senate Bill No. 749 (2023-2024
Reg. Sess.) amended section 1170.18 and removed the language in subdivision (j)
establishing the deadline for filing a petition pursuant to section 1170.18. The November
4, 2022, deadline was eliminated entirely. Extending the deadlines for filing a petition
8 reflects an intent to enlarge, rather than restrict, the opportunity for a defendant to seek
relief under section 1170.18. Likewise, construing section 1170.18 to allow a successive
petition enlarges, rather than restricts, the opportunity for a defendant to obtain relief.
In this case, as the People acknowledge, defendant’s second petition filed on
October 6, 2022, and the purported third petition inadvertently filed on September 18,
2023, were timely.
C. Eligibility for Relief
“A defendant seeking resentencing under section 1170.18 bears the burden of
establishing his or her eligibility, including by providing in the petition a statement of
personally known facts necessary to eligibility. [Citations.]” (People v. Page (2017) 3
Cal.5th 1175, 1188.) If the defendant fails to meet this burden, the trial court’s order
denying the petition must be affirmed, even if the trial court expressed a different reason
for denying the petition. (Perkins, supra, 244 Cal.App.4th at p. 139.) “[O]n appeal we
are concerned with the correctness of the superior court’s determination, not the
correctness of its reasoning. [Citation.] ‘“[W]e may affirm a trial court judgment on any
[correct] basis presented by the record whether or not relied upon by the trial court.
[Citation.]” [Citation.]’ [Citation.]” (Ibid.)
A defendant submitting a section 1170.18 petition and arguing that a theft crime
should be resentenced as a misdemeanor, because the value of the property stolen was
$950 or less, has the initial burden of presenting evidence of the value of the property.
(Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Johnson (2016) 1 Cal.App.5th
9 953, 964-965 (Johnson); People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).)
Some or all of the information or evidence necessary to enable the court to determine a
defendant’s eligibility must accompany the petition. (Sherow, supra, at p. 880; Perkins,
supra, at pp. 136-137, 140; Johnson, supra, at p. 970.) “In some cases, the uncontested
information in the petition and record of conviction may be enough for the petitioner to
establish . . . eligibility” for recall of his felony sentence. (People v. Romanowski (2017)
2 Cal.5th 903, 916 (Romanowski).) More often, however, excluding evidence outside the
record of conviction will impede a defendant from meeting his or her burden to prove
eligibility under Proposition 47, which often turns on establishing key facts not
previously adjudicated, e.g., when newly relevant evidence was not an element at the
time defendant was convicted, or when a defendant pled guilty. (Ibid.)
Where eligibility for resentencing turns on facts not established by the record of
conviction, the court may require an evidentiary hearing if it “‘finds there is a reasonable
likelihood that the petitioner may be entitled to relief and [his] entitlement to relief
depends on the resolution of an issue of fact.’ [Citations.]” (Romanowski, supra, 2
Cal.5th at p. 916.) That evidence can come from any competent source. (See Johnson,
supra, 1 Cal.App.5th at pp. 968, 971 [petitioner seeking recall of sentence under Prop. 47
may present probative evidence from any source]; Perkins, supra, 244 Cal.App.4th at p.
140, fn. 5 [petitioner may use declarations or any probative evidence]; Sherow, supra,
239 Cal.App.4th at p. 880 [petitioner’s testimony about the nature of items taken].) In a
case such as this, new evidence offered to demonstrate the value of stolen property was
10 less than $950 may be presented in various forms, as well as whether defendant entered
the store with the intent to commit larceny. (Perkins, supra, at p. 137.) A declaration
from the defendant or a witness containing “testimony about the nature of the items
taken” may also be informative, even sufficient. (See Sherow, supra, at p. 880.) If and
once the defendant makes this showing, the People have an opportunity to attempt to
demonstrate defendant’s ineligibility for resentencing. (Johnson, supra, at p. 965.)
If the trial court determines defendant has submitted evidence sufficient to create a
dispute as to the value, but has not established his or her eligibility, the court may “permit
further factual determination.” (Sherow, supra, 239 Cal.App.4th at p. 880.) Proof of
eligibility for resentencing or redesignation of a conviction must be made by a
preponderance of the evidence. (People v. Bush (2016) 245 Cal.App.4th 992, 1001.)
Here, defendant passed the initial screening stage and met his prima facie burden
by declaring the stolen property did not exceed $950 and that he entered the building
during business hours “according to Police Reports.” Nonetheless, the trial court denied
the second petition based on its mistaken belief “the petition was early and that it was
denied on September the 2nd, 2021” and then took the matter off calendar. That was
error. Excluding evidence outside the record of conviction may impede a defendant from
meeting his or her burden to prove eligibility under Proposition 47, if that evidence was
not an element at the time defendant was convicted. (Romanowski, supra, 2 Cal.5th at p.
916; Johnson, supra, 1 Cal.App.5th at p. 968; Perkins, supra, 244 Cal.App.4th at p. 140.)
In the present matter, new evidence was necessary in order for defendant to attempt to
11 demonstrate his eligibility for reduction of his commercial burglary conviction within the
misdemeanor statute’s $950 threshold, a monetary limit that is not an element of his
felony conviction.
The court also erred in denying the petition filed on September 18, 2023, as
untimely or past the November 4, 2022, deadline. As previously noted, effective October
8, 2023, Senate Bill No. 749 (2023-2024 Reg. Sess.) amended section 1170.18 and
eliminated the deadline for filing a petition pursuant to section 1170.18. Furthermore, we
agree with defendant that this court’s prior opinion in Mason I is not dispositive on the
issue of valuation or whether defendant entered the store during regular business hours
with the intent to steal because we had dismissed that appeal as abandoned. Moreover,
defendant may file successive petitions to include more evidence to support his petition
or application, and it is unknown whether defendant had included the same information in
his first petition that was denied and appealed to this court.
Here, an evidentiary hearing is necessary as there are factual issues in dispute.
The trial court did not consider defendant’s declaration or defendant’s record of
conviction, which presumably includes the police report, as evidence that the value of the
stolen property did not exceed $950 or that defendant entered the store with the intent to
steal during regular business hours. Defendant had also attached a minute order showing
a restitution fine in the amount of $500. Although a restitution fine under section 1202.4
is different from victim restitution and the minute order of the sentencing hearing
indicated defendant had to pay direct victim restitution in an amount determined by the
12 probation officer, there is no indication in the record that victim restitution was ever
imposed in this case. There is also the factual issue, as the People point out, as to
whether defendant was still serving a sentence in November 2014. In any event, if the
defendant has already completed the sentence for the felony conviction for which the
defendant seeks relief, defendant instead “may file an application . . . to have the felony
conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)
Under Proposition 47, eligibility often turns on the simple factual question of the
value of the stolen property or whether a defendant entered during regular business hours.
In most such cases, the value of the property was not important at the time of conviction.
Therefore, the record may not contain sufficient evidence to determine its value. For that
reason, an evidentiary hearing is necessary, and a defendant is not precluded from filing a
new petition supported by competent or other probative evidence as sufficient proof of
the value of the stolen goods to establish eligibility for relief under Proposition 47. (See
People v. Pak (2016) 3 Cal.App.5th 1111, 1121 [affirming the denial of Proposition 47
petition without prejudice, explaining that “[i]n any new petition, defendant should
describe the stolen property and attach some evidence, whether a declaration, court
documents, record citations, or other probative evidence showing she is eligible for
relief”]; Perkins, supra, 244 Cal.App.4th at pp. 140.)
On remand, the trial court has substantial flexibility to devise practical procedures
to implement Proposition 47, so long as those procedures are consistent with the
proposition and any applicable statutory or constitutional requirements. (Perkins, supra,
13 244 Cal.App.4th at p. 138.) The court may exercise its discretion to develop a factual
record to address defendant’s eligibility by requesting the submission of additional
evidence or by conducting a hearing to determine the fair market value of the stolen
goods. Both parties will have an opportunity to litigate the valuation and other issues,
i.e., whether defendant entered the store during normal business hours with the intent to
steal as opposed to some other felony, under the applicable standards on remand. We
express no opinion on the merits of that issue.
As a guidance to the court and the parties, under section 484, subdivision (a),
which defines theft, “‘[i]n determining the value of the property obtained, for the
purposes of this section, the reasonable and fair market value shall be the test.’”
“[C]ourts have long required section 484’s ‘reasonable and fair market value’ test to be
used for theft crimes that contained a value threshold . . . .” (Romanowski, supra, 2
Cal.5th at p. 914 [Proposition 47 did not change this valuation approach].) California
courts have established this general principle for determining the value of property in a
theft crime. If defendant subsequently finds evidence, i.e., describing the stolen property
and attaching some evidence, whether a declaration, court documents, police report,
record citations, or other probative evidence showing he is eligible for relief, he may file
a successive petition with the trial court. (See Perkins, supra, 244 Cal.App.4th at p.142.)
Based on the foregoing, we reverse the order denying defendant’s section 1170.18
petition to reduce his 1992 burglary conviction to a misdemeanor and remand the matter
for an evidentiary hearing.
14 IV.
DISPOSITION
The trial court’s order denying defendant’s second section 1170.18 petition is
reversed and the matter is remanded for an evidentiary hearing consistent with this
opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.