Opinion
F072363
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JAY DEAN OHMAN, Defendant and Appellant.
Elizabeth Campbell, 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, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRL007275A)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Elizabeth Campbell, 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, Kathleen A. McKenna and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This appeal arises from the trial court's denial of defendant Jay Dean Ohman's petition for relief from his felony conviction under Proposition 47. (Pen. Code, § 1170.18.) In 2012, defendant appeared before the trial court for resolution of three pending cases by plea. In the first case, defendant pled no contest to second degree burglary (§ 459), and admitted he suffered a prior serious and/or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). In the other two cases, defendant admitted violations of probation. The trial court sentenced defendant in the three cases to a total determinate term of six years in prison.
All further statutory references are to the Penal Code.
Merced County Superior Court case No. CRL007275A.
In 2015, following the enactment of Proposition 47, defendant filed a petition seeking recall of his sentence and resentencing. (§ 1170.18, subd. (a).) This appeal concerns only the denial of defendant's petition for resentencing on the second degree burglary conviction. Defendant argues that because his offense plainly falls within the meaning of section 459.5, which is a misdemeanor shoplifting statute added with the passage of Proposition 47, the trial court erred in concluding he is not entitled to relief under Proposition 47. The People request we affirm the trial court's ruling.
This court recently addressed the claim defendant advances on appeal in People v. Bunyard (2017) 9 Cal.App.5th 1237 (Bunyard), which resolved the appeal brought by defendant's codefendant in the second degree burglary case, Randy Bunyard. We concluded the offense committed by Bunyard constitutes shoplifting within the meaning of section 459.5, thereby qualifying Bunyard to seek relief under Proposition 47. (Bunyard, supra, at p. 1245.) We reversed the trial court's ruling and remanded the matter with instructions to the trial court to find Bunyard eligible for relief and proceed with determining whether he was entitled to resentencing. (Id. at pp. 1246-1247.) We find disposition of defendant's appeal in this case is controlled by our decision in Bunyard and we reverse the trial court's ruling.
DISCUSSION
I. Background
"'On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act [(the Act)] ....' [Citation.] 'Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' [Citation.]
"Proposition 47 also added section 1170.18, concerning persons currently serving a sentence for a conviction of a crime that the proposition reduced to a misdemeanor. It permits such a person to 'petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with' specified sections that 'have been amended or added by this act.' (§ 1170.18, subd. (a).) If the trial court finds that the person meets the criteria of subdivision (a), it must recall the sentence and resentence the person to a misdemeanor, 'unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (People v. Morales (2016) 63 Cal.4th 399, 404; accord, People v. Valencia (2017) 3 Cal.5th 347, 355.) II. Bunyard Decision
Section 1170.18, subdivisions (a) and (j) were amended, effective January 1, 2017, to (1) change the terms of statutory application from "[a] person currently serving a sentence for a conviction" to "[a] person who, on November 5, 2014, was serving a sentence for a conviction," and (2) extend the petition or application filing date from "within three years after the effective date of the act that added this section or at a later date upon a showing of good cause" to "on or before November 4, 2022, or at a later date upon showing of good cause." (Legis. Counsel's Dig., Assem. Bill No. 2765, approved by Governor, Sept. 28, 2016 (2015-2016 Reg. Sess.) pp. 1, 3.) The statute was again amended, effective June 27, 2017, to add subdivision (p), which extends application of the statute to persons found not guilty by reason of insanity and committed to a state hospital. (Legis. Counsel's Dig., Assem. Bill No. 103, approved by Governor, June 27, 2017 (2017-2018 Reg. Sess.) §§ 2, 26, pp. 12, 32-34.) A third technical amendment to the statute is effective January 1, 2018. (Legis. Counsel's Dig., Assem. Bill No. 1516, approved by Governor, Oct. 7, 2017 (2017-2018 Reg. Sess.) § 189, pp. 238-240.)
Defendant and Bunyard were convicted of second degree burglary following their arrest for attempting to break into a coin-operated soap dispenser machine at a 24-hour laundromat. The trial court considered Bunyard's petition for resentencing under Proposition 47 first and concluded his offense did not constitute shoplifting within the meaning of section 459.5. As a result, it denied Bunyard's petition on the ground he did not meet the criteria for resentencing under section 1170.18, subdivision (a). The court subsequently considered defendant's petition for resentencing and expressly denied it on the basis set forth on the record in Bunyard's prior hearing.
Section 459.5 provides:
"(a) 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. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.
"(b) 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."
Thereafter, this court addressed Bunyard's appeal and found his offense constitutes shoplifting under section 459.5. (Bunyard, supra, 9 Cal.App.5th at p. 1245.) We considered the statutory language, accorded the words their ordinary meaning and concluded, "There can be no doubt that, upon his entry into the laundromat (which was during the business's regular business hours, since it was open 24 hours a day), [the] defendant intended to commit larceny by theft under the foregoing definition. That he intended to take money, as opposed to goods or merchandise, is of no import: 'The term "property" as used in the Penal Code includes personal property such as money, goods, chattels, things in action and evidences of debt. [Citations.]' [Citations.] The taking of money can constitute larceny. [Citations.] Nor do we believe it matters whether [the] defendant used a tool to effectuate the intended theft or force to attempt to break into the coin box." (Id. at p. 1244.)
The principles of statutory interpretation are well settled, and those principles apply to voter initiatives. (People v. Morales, supra, 63 Cal.4th at p. 406; Bunyard, supra, 9 Cal.App.5th at p. 1243.) "'"The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law."' [Citation.] We begin with the language of the statute, to which we give its ordinary meaning and construe in the context of the statutory scheme. If the language is ambiguous, we look to other indicia of voter intent." (People v. Johnson (2015) 61 Cal.4th 674, 682; accord, People v. Valencia, supra, 3 Cal.5th at pp. 357-358.) --------
We also rejected the People's argument that the voters intended section 459.5 to apply only to the theft of merchandise openly displayed for sale in retail establishments. (Bunyard, supra, 9 Cal.App.5th at p. 1244.) We explained, "Regardless of what legal forms of theft are included in section 459.5's use of 'larceny,' giving that term a broader scope than merely what is colloquially referred to as a 'five-finger discount' [citation] furthers voters' intent in enacting Proposition 47. It is readily apparent the Act was intended to lessen punishment for 'nonserious, nonviolent crimes like petty theft and drug possession' (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70), in order 'to ensure that prison spending is focused on violent and serious offenses ....' (Id., § 2, p. 70.) It would make no sense to distinguish, for purposes of misdemeanor versus felony treatment, between the intended theft of merchandise worth $10 to $15 and the intended theft of coins worth $10 to $15, simply because the former is openly displayed and offered for sale and the latter is not." (Id. at p. 1245.)
In accordance with our decision in Bunyard, we find the trial court erred in concluding defendant is ineligible for relief under section 1170.18, subdivision (a). The ruling is reversed and this matter is remanded for further proceedings.
DISPOSITION
The trial court's order finding defendant ineligible for relief under Penal Code section 1170.18 is reversed. This matter is remanded to the trial court with instructions to (1) find defendant eligible for resentencing under section 1170.18, subdivision (a) and (2) proceed with determining whether defendant is entitled to recall of his sentence and resentencing under section 1170.18, subdivision (b).
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.