Opinion
F073331
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. RALPH JOHNATHAN ELZE, Defendant and Appellant.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. F1290212 & F12902489)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Peña, J.
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Ralph Johnathan Elze pled no contest to two counts of commercial burglary in 2013. The electorate passed Proposition 47, the Safe Neighborhoods and Schools Act, in 2014 (hereafter Proposition 47 or the Act). Elze filed a petition seeking to have his convictions reduced to misdemeanors pursuant to the provisions of the Act. The trial court denied the petition finding Elze was not eligible for resentencing. We affirm the order denying the petition.
FACTUAL AND PROCEDURAL SUMMARY
In 2013, Elze entered into a plea agreement, which resolved five cases pending against him. As relevant to this appeal, Elze pled no contest to the second degree commercial burglary of Herb Bauer Sporting Goods in Fresno County Superior Court case No. F12902012, and to the second degree commercial burglary of Fresno Schwinn in Fresno County Superior Court case No. F12902489. (Pen. Code, §§ 459, 460, subd. (b).) In both cases, Elze admitted he had suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i). He was thereafter sentenced to the agreed upon term for both cases.
All statutory references are to the Penal Code unless otherwise stated. --------
In 2015, Elze filed petitions for resentencing pursuant to the provisions of Proposition 47. Elze alleged that in these two cases he was eligible for resentencing because the value of the property at issue did not exceed $950.
At the hearing on the motion, defense counsel conceded he could not meet the evidentiary burden of establishing that the value of the property at issue was less than $950. The trial court thereafter denied each petition finding Elze was ineligible for resentencing.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after a thorough review of the record she could not identify any arguable issues in the case. By letter dated July 18, 2016, we invited Elze to inform this court of any issues he wished us to address. Elze did not respond to our invitation. After our independent review of the record we agree there are no arguable issues in this case.
As previously stated, Proposition 47 was passed by the electorate in 2014. The proposition reclassified certain drug- and theft-related offenses from felonies to misdemeanors, unless the crime is committed by certain ineligible defendants. In addition, the proposition permitted those already convicted of the identified crimes to petition the trial court to have their convictions reduced from a felony to a misdemeanor. This provision of the proposition is codified in section 1170.18.
Section 1170.18, subdivision (f) permits those who had been convicted of a felony, but would have been convicted of a misdemeanor had Proposition 47 been in effect at the time of the conviction, to petition the trial court to have the felony designated a misdemeanor. The crimes which were reclassified as misdemeanors by Proposition 47 are (1) possession of certain controlled substances as provided for in Health and Safety Code sections 11350, 11357, and 11377; (2) shoplifting as codified in section 459.5; (3) forgery in an amount less than $950 as codified in section 473, subdivision (b); (4) issuing bad checks in an amount less than $950 as codified in section 476a, subdivision (b); (5) petty theft with a prior where the amount taken is valued at less than $950 as codified in section 490.2, subdivision (a); (6) receiving stolen property with a value of less than $950 as codified in section 496, subdivision (a); and (7) certain convictions for petty theft with a prior pursuant to the provisions of section 666. (§ 1170.18, subd. (a).)
Elze filed his petition pursuant to section 1170.18, subdivision (a), which permits a prisoner to petition the trial court for resentencing of his convictions to misdemeanors if Proposition 47 had been in effect at the times the crimes were committed. Elze was convicted of commercial burglary in each of the relevant cases. Accordingly, to be eligible for resentencing, Elze would have to fall within the provisions of section 459.5, which reduces shoplifting to a misdemeanor in certain cases. 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)." (§ 459.5, subd. (a).) This section further provides that "[a]ny other entry into a commercial establishment with intent to commit larceny is burglary." (Ibid.)
The trial court correctly denied Elze's petition because (1) the record establishes he did not commit shoplifting since each entry occurred after regular business hours when the stores were closed, and (2) trial counsel conceded, in essence, the value of the property stolen exceeded $950.
DISPOSITION
The order denying the petition is affirmed.