People v. Sherow
196 Cal. App. 4th 1296
Cal. Ct. App.2011Background
- Sherow, Sr. was convicted by jury on counts 1, 2, and 4–10 of burglary; he admitted a prior strike and eight prior prison terms and was sentenced to 19 years four months.
- Sherow, Jr. pled guilty to 27 burglary counts and 27 counts of receiving stolen property; he was sentenced to six years four months.
- The charges stem from a long-running scheme involving the sale of large quantities of new DVDs to a pawnshop and subsequent store thefts and sales.
- Detective surveillance and store surveillance videos captured Sherow, Sr. taking DVDs from Walmart and Sam’s Club and concealing them, with a tracking device aiding subsequent location.
- The trial court instructed the jury on a consent defense to burglary for counts 7–10, but provided an instruction placing the burden on Sherow, Sr. to prove consent by a preponderance of the evidence.
- On appeal, the court held that the burden and standard for the consent defense was misallocated, reversing counts 7–10; it also adjusted Sherow, Jr.’s conduct credits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof for the consent defense to burglary | Sherow, Sr. argues consent is an element and requires proof beyond reasonable doubt. | Sherow, Sr. contends the defense is not an element and only a reasonable doubt is required to raise the defense. | Burden rests with defendant to raise reasonable doubt as to consent facts. |
| Prejudice from misallocation of burden | Error in placement of burden prejudiced the prosecution’s case. | No prejudice shown from the burden instruction. | Instructional error prejudicial; reversal on counts 7–10. |
| Consistency with Felix and Mower standards | Defense burden is preponderance under Felix. | Defense burden should be reasonable doubt, not preponderance. | Consent defense burden is to raise reasonable doubt about underlying facts. |
| Ex post facto challenge to § 70373 (for Sherow, Jr.) | Imposition of a criminal conviction assessment under § 70373 may be invalid retroactively. | Attack on ex post facto grounds. | Ex post facto challenge rejected. |
| Retroactive application of 4019 credits to Sherow, Jr. | Credits should reflect original sentencing. | Credits should reflect amended § 4019 retroactively. | Modify to award 128 days of conduct credits (total). |
Key Cases Cited
- People v. Felix, 23 Cal.App.4th 1397 (Cal. App. 1994) (consent to enter as defense to burglary; burden on defendant for underlying facts)
- People v. Neidinger, 40 Cal.4th 67 (Cal. 2006) (allocation of burden subject to section 1096)
- People v. Mower, 28 Cal.4th 457 (Cal. 2002) (reasonable doubt standard for defenses collateral to guilt)
- People v. Tewksbury, 15 Cal.3d 953 (Cal. 1976) (reasonable doubt standard for defenses that relate to guilt)
- People v. Hardy, 33 Cal.2d 52 (Cal. 1948) (burden shifting on defenses forbidden; prosecution must prove guilt beyond reasonable doubt)
- People v. Gauze, 15 Cal.3d 709 (Cal. 1975) (entry element and possessory rights in burglary)