Filed 5/8/17 P. v. Riskas CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS LYNN RISKAS,
Defendant and Appellant.
H042313
(Santa Clara County
Super. Ct. No. BB517416)
In 2005, defendant Douglas Lynn Riskas entered a Nordstrom department store,
grabbed four purses from a display counter, and ran out the door to a waiting getaway
vehicle. He pleaded guilty to second degree burglary. (Pen. Code, §§ 459, 460,
subd. (a).)
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The trial court imposed a term of 16 months in prison and ordered restitution
for the amount of $1,400.
In 2015, Riskas petitioned under Proposition 47 to redesignate the offense as a
misdemeanor. The trial court denied the petition on the ground that the value of the
stolen property exceeded $950. Riskas now appeals from the trial court’s denial of his
petition.
We conclude Riskas failed to establish his eligibility for relief under Proposition
47. We will affirm the order denying the petition without prejudice to consideration of a
subsequent petition.

1
Subsequent undesignated statutory references are to the Penal Code.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense2
On November 12, 2005, Riskas entered a Nordstrom department store in Palo
Alto. He went to the handbag section, grabbed several purses off a display counter, and
ran out the door without paying for the purses. Video surveillance cameras captured the
theft. A witness spotted Riskas getting into a Jeep Cherokee waiting in the parking lot.
The Jeep drove away at high speed and narrowly avoided several collisions.
A stock check showed that four Dooney & Bourke brand purses were stolen. A
police report stated that the total value of the purses was $1,420.
B. Procedural Background
The prosecution charged Riskas by felony complaint with three counts: Count
One—Second degree burglary (§§ 459, 460, subd. (a)); Count Two—Grand theft of
personal property with a value of more than $400 (§§ 484, 487, subd. (a)); and Count
Three—Reckless driving with intent to evade a peace officer (Veh. Code, §§ 2800.1,
2800.2). Riskas pleaded guilty to Count One. The trial court imposed a term of 16
months in prison and ordered restitution in the amount of $1,400 under section 1202.4,
subdivision (f).
In 2015, Riskas petitioned under section 1170.18, subdivision (f), to redesignate
the offense as a misdemeanor. The trial court denied the petition in a written order. The
court noted that misdemeanor shoplifting is an offense eligible for redesignation under
Proposition 47, but the court found the instant offense ineligible for redesignation
because the value of the stolen property exceeded $950. The court stated, “The charging
document, statement of probable cause and restitution order in this case establish that the
stolen property (purses) was valued at $1400.”3

2
The facts are based on police reports in the augmented portion of the record.
3
The record does not include any statement of probable cause.
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II. DISCUSSION
Riskas contends the trial court erred by denying his petition because the court
relied on evidence outside the record of conviction in finding the value of the stolen
property exceeded $950. He also contends the police report stating the value of the stolen
property was inadmissible hearsay. The Attorney General contends the trial court
properly relied on the police reports to find the value of the stolen property exceeded
$950.
A. Background
In 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools
Act (Act), reducing certain drug- and theft-related offenses to misdemeanors. Among
other things, the Act added section 459.5, making the offense of “shoplifting” a
misdemeanor: “Notwithstanding Section 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.” (§ 459.5, subd.
(a).) Section 459.5 mandates that shoplifting shall be punished as a misdemeanor except
for persons having certain prior convictions not at issue here: “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.” (§ 459.5,
subd. (b).)
Proposition 47 also created a resentencing scheme for felony convictions for
specified offenses made misdemeanors by the Act. (§ 1170.18, subds. (a) & (f).) Under
subdivision (f), “[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 this act had this act 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
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case to have the felony conviction or convictions designated as misdemeanors.”
(§ 1170.18, subd. (f).)
B. Riskas Failed to Establish His Eligibility for Redesignation
Riskas’ primary contention is that the trial erred by relying on evidence outside the
record of conviction to determine the value of the stolen property. As an initial matter,
we note that the defendant bears the burden to show the value of the property did not
exceed $950. (People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski); People v.
Sherow (2015) 239 Cal.App.4th 875, 877.) Regardless, California courts have held that a
ruling on a petition under Proposition 47 is not limited to evidence contained in the
record of conviction. (People v. Johnson (2016) 1 Cal.App.5th 953, 968.) The California
Supreme Court recently affirmed this principle: “In some cases, the uncontested
information in the petition and record of conviction may be enough for the petitioner to
establish this eligibility. . . . But in other cases, eligibility for resentencing may turn on
facts that are not established by either the uncontested petition or the record of
conviction. In these cases, an evidentiary hearing may be ‘required if, after considering
the verified petition, the return, any denial, any affidavits or declarations under penalty of
perjury, and matters of which judicial notice may be taken, the court finds there is a
reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s
entitlement to relief depends on the resolution of an issue of fact.’ ” (Romanowski, supra,
2 Cal.5th at p. 916.) Given these holdings, we conclude the trial court did not err by
relying on the police reports to determine the value of the stolen property. Furthermore,
as the Attorney General notes, the restitution order of $1,400 also provided a basis on
which the court could find the value of the property exceeded $950.
Riskas contends the trial court improperly relied on hearsay by looking to the
police reports and the restitution order. But Riskas made no objection to the admission of
hearsay in the court below. Nor did he request any hearing to contest the evidence
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against him. The failure to object below forfeits the claim on appeal. (People v. Stevens
(2015) 62 Cal.4th 325, 333; Evid. Code, § 353, subd. (a).)
Riskas points out that he was not represented by counsel, and the procedures for
adjudicating petitions under Proposition 47 were not clearly established at the time he
filed his petition. He requests that, in the event we find no error, we affirm without
prejudice to consideration of a subsequent petition. Based on the record, it appears
somewhat unlikely Riskas could prevail on another petition. Out of an abundance of
caution, however, we will affirm the denial of his initial petition without prejudice to
consideration of another petition in the trial court.
III. DISPOSITION
The order denying Riskas’ petition for redesignation under Proposition 47 is
affirmed without prejudice to consideration of a subsequent petition.
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_________________________
RUSHING, P.J.
WE CONCUR:
_________________________
PREMO, J.
_________________________
GROVER, J.