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Filed 5/4/17 P. v. Atkerson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
NICHOLAS JAMES ATKERSON,
Defendant and Appellant.
E065504
(Super.Ct.No. SWF027430)
OPINION
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen
Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Nicholas James Atkerson appeals from the superior
court’s order denying his petition filed under Penal Code section 1170.18.1
We affirm
without prejudice to consideration of a subsequent petition that supplies evidence of his
eligibility regarding count 8.
FACTUAL AND PROCEDURAL HISTORY
On October 13, 2008, defendant took a large amount of high-priced merchandise
from a discount retail store. He loaded the items into his car over a period of several
hours through a hole in a fence near the garden department. This is the basis for count 2.
On December 2, 2008, defendant drove or took a 2003 Ford Ranger vehicle
without the owner’s permission. This is the basis for count 5.
On December 19, 2008, defendant took a television and electronic merchandise
from a second discount retail store. This is the basis for count 8.
On January 14, 2011, the People filed a third amended information charging
defendant with nine crimes and three prior offenses. The crimes at issue here are counts
2 and 8, grand theft of property exceeding $400 (Pen. Code, § 487, subd. (a)) and count
5, unlawfully taking or driving a vehicle with a prior vehicle theft conviction (Pen. Code,
§ 666.5, subd. (a); Veh. Code, § 10851).
On March 21, 2011, defendant pled guilty to assault with a deadly weapon other
than a firearm (§ 245, subd. (a)(1)), along with counts 2 and 8, grand theft, and count 5,
vehicle theft with a prior. Defendant also admitted to having a prior strike conviction.

1 Section references are to the Penal Code except where otherwise indicated.
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(§§ 667, subds. (c) & (e), 1170.12, subd. (c)(2)(A).) The court sentenced defendant to
eight years eight months.
On November 4, 2014, the voters approved Proposition 47, The Safe
Neighborhoods and Schools Act (Proposition 47); it went into effect the following day.
Proposition 47 reduced certain nonserious, nonviolent felonies to misdemeanors. It
added and amended sections of the Penal Code. Section 1170.18 was added and provides
that a person currently serving a sentence for a felony conviction, whether by trial or
plea, who would have been guilty only of a misdemeanor had Proposition 47 been in
effect at the time the plea was entered, or at the time of trial, may petition for a recall of
the sentence before the trial court that entered the judgment of conviction in his or her
case to request resentencing.
On December 31, 2014, defendant filed a petition for resentencing—application
for reduction to misdemeanor under section 1170.18 (form RI-CR039). Defendant
checked the boxes indicating the petition was regarding his grand theft convictions and
that he believed the value of the property stolen did not exceed $950. The People filed a
response requesting a hearing on the value of the property stolen and indicated, “People
have ordered report.” The People’s response refers to the defendant’s petition regarding
counts “02, 08,” which are violations of “487(A) PC, 487(A) PC.” On August 6, 2015,
the court held an ex parte hearing. In the court’s handwritten remarks on the petition for
resentencing—response and order (form CR06), the court indicated that the petition was
being denied because, “245(a)(1), 666.5 are not qualifying felonies. Both 487(a) counts
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(2, 8) have losses greatly exceeding 950.00 (see imaged police repts.)” The minute order
also filed on that date similarly stated: “Petition for resentencing pursuant to PC 1170.18
is denied. 245(a)(1) PC and 666.5 PC are not qualifying felonies. Both 487(a) PC counts
(counts 2 and 8) have losses greatly exceeding $950.00. (see imaged police report).”
This appeal followed.
DISCUSSION
1. Penal Code Section 666.5/Vehicle Code Section 10851
Defendant argues in his opening brief that the superior court erred when it
declined to reduce his felony conviction for vehicle theft with a prior vehicle theft to a
misdemeanor. However, as the People point out, defendant did not ask the court in his
petition to reduce his vehicle theft conviction and, thus, he cannot appeal from any
perceived denial of this request. On the petition form, defendant checked the box
indicating he requested resentencing on his grand theft convictions. Had defendant
wanted the trial court to consider resentencing on his vehicle theft conviction, he should
have checked the box next to, “Other,” and written his request in the space provided.
Although the superior court stated in both its handwritten comments on the form
CR06 and in the minute order that, “245(a)(1) [and] 666.5 PC are not qualifying
felonies,” the court was without jurisdiction to rule on a request to reduce the vehicle
theft charge because defendant simply did not make that request. Section 1170.18,
subdivision (a), provides that: “A person . . . serving a sentence for a conviction . . . may
petition for a recall of sentence . . . to request resentencing.” “Upon receiving a petition
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under subdivision (a), the court shall determine whether the petitioner satisfies the criteria
in subdivision (a).” (§ 1170.18, subd. (b).) The superior court did not receive a petition
requesting resentencing on the vehicle theft charge and, thus, it could not make a ruling
on such a request. When a court acts “ ‘ “without the occurrence of certain procedural
prerequisites,” ’ ” it exceeds its jurisdiction. (People v. Lara (2010) 48 Cal.4th 216, 224-
225.) To be clear, we believe the superior court was being thorough, rather than actually
ruling on a request defendant did not make. To the extent defendant argues the court did
make a ruling, it would have been in excess of the court’s jurisdiction.
Further, we decline to consider reducing the vehicle theft conviction to a
misdemeanor in the first instance. The trial court, not the appellate court, is vested with
the authority to reduce a defendant’s sentence pursuant to section 1170.18. (People v.
Awad (2015) 238 Cal.App.4th 215, 221-222.)
2. Penal Code Section 487—Grand Theft
In his supplemental opening brief, defendant challenges the superior court’s order
denying his request to reduce count 8, the grand theft of goods from the second discount
retail store, which took place on December 19, 2008. Specifically, defendant argues the
superior court mistakenly relied on the police report to establish that both grand theft
counts 2 and 8 involved items exceeding $950 in value, whereas the police report actually
describes only the events that form the basis for count 2, the theft from the first discount
retail store. A review of the police report shows that defendant is correct; it describes
only the items taken from the first discount retail store in count 2. The record does not
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establish the value of the items defendant took in count 8. However, we affirm the trial
court’s order because defendant did not carry his burden as petitioner to establish the
value of the items was $950 or less. Nevertheless, we conclude, and the People agree,
that defendant may file a new petition regarding count 8, in which he may attempt to
establish that the property stolen had a value of $950 or less.
A. Standard of Review
In interpreting a voter initiative such as Proposition 47, “we apply the same
principles that govern statutory construction. [Citation.] Thus, ‘we turn first to the
language of the statute, giving the words their ordinary meaning.’ [Citation.] The
statutory language must also be construed in the context of the statute as a whole and the
overall statutory scheme. [Citation.] When the language is ambiguous, ‘we refer to other
indicia of the voters’ intent, particularly the analyses and arguments contained in the
official ballot pamphlet.’ [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685; see
People v. Marks (2015) 243 Cal.App.4th 331, 334.)
B. Penal Code Section 1170.18
“A person who has completed his or her sentence for a conviction, whether by trial
or plea, of a felony or felonies who would have been guilty of a misdemeanor under
[Proposition 47] had [Proposition 47] been in effect at the time of the offense, may file an
application before the trial court that entered the judgment of conviction in his or her case
to have the felony conviction or convictions designated as misdemeanors.” (Pen. Code,
§ 1170.18, subd. (f); see People v. Diaz (2015) 238 Cal.App.4th 1323, 1329.) Under
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Penal Code section 490.2, subdivision (a): “Notwithstanding [Penal Code] Section 487
or any other provision of law defining grand theft, obtaining any property by theft where
the value of the money, labor, real or personal property taken does not exceed nine
hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a
misdemeanor, . . .”
Thus, Proposition 47 reduced the offense of grand theft from a felony to a
misdemeanor where the value of the property does not exceed $950. Such an offense is
now a misdemeanor.
A petitioner must establish eligibility by “stating and in some cases showing the
offense of conviction has been reclassified as a misdemeanor and, where the offense of
conviction is a theft crime reclassified based on the value of stolen property, showing the
value of the property did not exceed $950. [Citation.] The defendant must attach
information or evidence necessary to enable the court to determine eligibility.” (People
v. Perkins (2016) 244 Cal.App.4th 129, 136-137, citing People v. Sherow (2015) 239
Cal.App.4th 875, 880 (Sherow).) The petitioner has the burden of establishing eligibility
for resentencing “[b]ecause defendant is the petitioner seeking relief, and because
Proposition 47 does not provide otherwise.” (Perkins, at p. 136, citing Sherow, at
pp. 878-879; see People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450.)
Defendant did not meet his burden to establish in the trial court that the value of
the stolen property in count 8 did not exceed $950. The felony complaint did not allege
the value of any of the stolen property. Defendant did not attach any information or
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evidence to his petition, enabling the court to determine eligibility. At the time of the
hearing on reduction, no evidence showed that the value of the stolen property in count 8
did not exceed $950. Nothing in the record establishes that the stolen property did not
exceed $950. In other words, insufficient evidence, or no evidence whatsoever,
supported defendant’s petition for reduction.
Defendant failed to meet this burden. Accordingly, since defendant failed to
present the trial court with any evidence establishing that the stolen property did not
exceed $950, we affirm the trial court’s ruling denying defendant’s petition. (People v.
Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450.)
DISPOSITION
The order denying defendant’s Proposition 47 petition is affirmed, without
prejudice to consideration of a subsequent petition that supplies evidence of his eligibility
regarding count 8.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.