P. v Shryock

Filed 3/16/17 P. v. Shryock CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BONNIE JEAN SHRYOCK,
Defendant and Appellant.
F072337
(Super. Ct. No. F12905807)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee
Whitehead, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Franson, J. and Smith, J.

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2.
Appellant Bonnie Jean Shryock, formerly known as Bonnie Jean Maury,1 appeals
from the partial denial of her petition for resentencing, filed pursuant to Proposition 47.
Appellant contends the trial court wrongly placed the burden of demonstrating eligibility
on appellant. Alternatively, appellant argues her conviction for second degree
commercial burglary was eligible for relief, as it constituted shoplifting. For the reasons
set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 6, 2012, appellant was charged with one count of second degree
commercial burglary under Penal Code sections 459 and 460, subdivision (b).2 Appellant
pled nolo contendere on November 28, 2012, prior to any preliminary hearing. Appellant
was initially granted probation, but was ultimately sentenced to a term of three years,
divided between custody and supervised release, following a probation violation related
to several new charges being brought.
With respect to appellant’s underlying conduct, the probation report stated
appellant had found a receipt for two 24” lightbulbs in the parking lot of a Home Depot.
She then entered the store with an empty bag, collected the two lights, and returned them
for cash, which she then used to purchase a box of staples and a soda before leaving.
Following enactment of Proposition 47, appellant filed a petition to have several
of her convictions reduced to misdemeanors, one of which derived from the Home Depot
incident. No documents were attached to the petition, which merely identified the case
numbers related to appellant’s request, and no written opposition was filed. At a hearing
set on appellant’s petition, the People conceded she was eligible for relief on all
requested convictions, save for the second degree commercial burglary conviction
1 On appeal, this court’s docket initially identified appellant as Bonnie Shyrock.
The court has corrected the docket.
2 All statutory references are to the Penal Code.

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3.
derived from the Home Depot incident. The People objected to resentencing on that
conviction, stating, “Ms. Phillips has determined that [appellant] is not eligible for this
one based on the fact that it was a fraudulent return for cash.”
At this point, appellant’s counsel stated, “at this time we’re just going to object.”
The trial court then noted its prior rulings holding that appellant held the burden of proof
for establishing eligibility before asking counsel “are you requesting an evidentiary
hearing to establish the offense qualifies for Prop 47?” After a sidebar, counsel
responded, “No, Your Honor.” The trial court then denied appellant’s petition with
respect to this single count.
This appeal timely followed.
DISCUSSION
Appellant contends the trial court wrongly placed the burden on her to prove
eligibility and, since the record was silent as to disqualifying factors, her petition should
have been granted. In line with this argument, appellant contends the cases of People v.
Sherow (2015) 239 Cal.App.4th 875 (Sherow) and People v. Rivas-Colon (2015)
241 Cal.App.4th 444 (Rivas-Colon), which relies on Sherow, were wrongly decided. As
an alternative argument, appellant argues her conviction qualifies as shoplifting when
considering the facts detailed in the probation report. This is so, argues appellant,
because theft by false pretenses is equivalent to larceny in the shoplifting statute.
Standard of Review and Applicable Law
“In November 2014, California voters enacted Proposition 47, which ‘created a
new resentencing provision: section 1170.18. Under section 1170.18, a person
“currently serving” a felony sentence for an offence that is now a misdemeanor under
Proposition 47, may petition for a recall of that sentence and request resentencing in
accordance with the statutes that were added or amended by Proposition 47. [Citation.]
A person who satisfies the criteria in section 1170.18 shall have his or her sentence
recalled and be “resentenced to a misdemeanor ... unless the court, in its discretion,

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4.
determines that resentencing the petitioner would pose an unreasonable risk of danger to
public safety.” ’ ” (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.)
“Proposition 47 added section 459.5, which classifies shoplifting as a
misdemeanor ‘where the value of the property that is taken or intended to be taken does
not exceed nine hundred fifty dollars ($950).’ (§ 459.5, subd. (a).) ‘[T]o qualify for
resentencing under the new shoplifting statute, the trial court must determine whether
defendant entered “a commercial establishment with intent to commit larceny while that
establishment [was] open during regular business hours,” and whether “the value of the
property that [was] taken or intended to be taken” exceeded $950. (§ 459.5.)’ ” (Rivas-
Colon, supra, 241 Cal.App.4th at p. 448.)
The trial court is tasked with determining whether a petitioner is eligible for
resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of
introducing facts sufficient to demonstrate eligibility. (Sherow, supra, 239 Cal.App.4th
at pp. 879-880.)
As the trial court’s eligibility determination is factual in nature, we review that
determination for substantial evidence. (People v. Johnson (2016) 1 Cal.App.5th 953,
960; see also People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford
(2014) 227 Cal.App.4th 1322, 1331; Rivas-Colon, supra, 241 Cal.App.4th at p. 452, fn.4
[“ ‘[T]he basic structure of Proposition 47 is strikingly similar to Proposition 36’ and
‘much of the appellate interpretation of Proposition 36 is likely relevant in the
interpretation of Proposition 47.’ ”].)
Appellant’s Petition Failed to Demonstrate Initial Eligibility
Appellant sought resentencing on the theory that her prior felony conviction for
second degree commercial burglary would have been a misdemeanor under Proposition
47. The petition needed to demonstrate, therefore, that appellant had entered a
commercial establishment with the intent to commit larceny, where the value of the
property at issue was less than $950. (Sherow, supra, 239 Cal.App.4th at p. 880 [“We

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think it entirely appropriate to allocate the initial burden of proof to the petitioner to
establish the facts, upon which his or her eligibility is based.”]; Rivas-Colon, supra,
241 Cal.App.4th at p. 449 [burden on petitioner to show value of stolen property was less
than $950].)
The petition did not support this conclusion. There was no evidence included
within the application demonstrating the value of the property stolen or even identifying
the factual basis for the charges. Rather, as noted, appellant’s initial petition was a single
page that merely identified the case for which she sought resentencing. Thus, similar to
Sherow, the “petition here gave virtually no information” regarding appellant’s eligibility
for resentencing. (Sherow, supra, 239 Cal.App.4th at p. 880.) Despite this lack of
information, the trial court, through the People’s investigation and subsequent
stipulations, was able to reduce several charges that were eligible for resentencing. On
the remaining conviction, although made aware of the obligation to produce evidence to
support her petition, appellant failed to offer any support for the claim her burglary
conviction was eligible for resentencing, such as through evidence of an intent to commit
larceny sufficient to satisfy the new shoplifting statute or as to the type or value of the
property at issue.3 As the burden was properly upon appellant to provide evidence of
initial eligibility, the trial court’s failure to independently identify whether additional
facts made appellant eligible for resentencing was not erroneous.
Appellant contends that Sherow, and presumably any case following it, including
Rivas-Colon, was incorrectly decided. We do not agree. We have independently
reviewed the analysis in Sherow in light of appellant’s arguments and appellant’s reliance
3 While the probation report is contained in the appellate record, there is no
indication it was before the trial court at the time of the hearing. Regardless, the parties
dispute whether consideration of the report would be proper in the first instance. We
need not resolve that dispute here, as appellant’s petition failed to provide any facts in
support of her claim and appellant’s counsel directly rejected an offer to provide such
evidence.

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on People v. Guerrero (1988) 44 Cal.3d 343 and Proposition 36 cases such as People v.
Bradford, supra, 227 Cal.App.4th 1322 and People v. Manning (2014) 226 Cal.App.4th
1133. We find the reasoning in Sherow persuasive and continue to follow it. In cases
where one properly convicted and serving a valid sentence seeks a reduction of that
sentence, it is perfectly reasonable to place the burden of demonstrating eligibility for a
sentence reduction under Proposition 47 on the petitioner. (See People v. Johnson,
supra, 1 Cal.App.5th at pp. 964-968.) This burden could have been met through a
declaration or basic testimony, which the trial court offered appellant a chance to provide,
concerning the underlying crime. (Sherow, supra, 239 Cal.App.4th at p. 880.) The trial
court therefore properly denied the petition.
Alternatively, relying on a recounting of the crime in the probation report,
appellant contends her engagement in a theft by false pretenses qualifies as shoplifting
and entitles her to relief. We do not agree. We recently analyzed the meaning of the
shoplifting statute and found that larceny, as used in that statute, should be interpreted
according to its common law definition. (People v. Martin (2016) 6 Cal.App.5th 666,
683, review granted Feb. 15, 2017, S239205.) As such, to be eligible, appellant must
demonstrate an intent to commit a trespassory taking, among other elements. (Id. at
p. 676.) The facts contained in the appellate record do not meet this requirement. As
appellant concedes, her crime amounted to a theft by false pretenses. Appellant
attempted to obtain money or goods through what was believed by the victim to be a
valid transaction, thus failing to satisfy the common law definition of a trespassory
taking. (Ibid.)
DISPOSITION
The order is affirmed.

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