Opinion
E062935
09-05-2017
THE PEOPLE, Plaintiff and Respondent, v. HECTOR DEAN BARBA, JR., Defendant and Appellant.
Thea Greenhalgh and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1301283) OPINION ON REMAND APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Thea Greenhalgh and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Hector Dean Barba pled guilty to one count of first degree burglary (Pen. Code §§ 459, 460, subd. (a), count 1) and one count of second degree burglary (§§ 459, 460, subd. (b), count 2).
All further statutory references are to the Penal Code, unless otherwise noted.
A third count, receiving stolen property (§ 496), was dismissed.
The trial court sentenced defendant to a total term of two years eight months: the low term of two years on count 1, plus one-third of the two-year midterm on count 2, to run consecutively.
On appeal, defendant argues the trial court erred by denying his petition for a recall of sentence and resentencing under section 1170.18, which was added to the Penal Code by the California electorate's passage of Proposition 47. We disagree, because defendant did not meet his burden to establish that the stolen item was worth $950 or less, and so affirm the trial court's denial of defendant's petition.
FACTUAL AND PROCEDURAL BACKGROUND
On October 30, 2013, the People filed an information, alleging in count 1 defendant had earlier that year burglarized an "inhabited dwelling house" in Lake Elsinore. The information further alleged in count 2 that defendant then burglarized a Lake Elsinore jewelry store by entering it "with intent to commit theft and a felony."
On October 14, 2014, defendant pled guilty to these two counts. As a factual basis for count 1, the trial court found defendant had entered an inhabited dwelling house within the meaning of the burglary statute, and so had committed a "residential burglary." As a factual basis for count 2, defendant denied entering the jewelry store to commit "a theft" as alleged in the information, leading the trial court to find defendant had committed a commercial burglary by entering the jewelry store "with intent to commit a felony."
On November 26, 2014, defendant filed a petition for a recall of sentence and resentencing pursuant to section 1170.18. In that petition, defendant sought to have his conviction on count 2 for "Penal Code § 459 2nd Degree Burglary" recalled and resentenced as a misdemeanor. The People filed an opposition, noting defendant had filed a petition "on felony count(s) 01, 02," and that he was not entitled to resentencing on the following grounds: "non-qualifying felony (1st 459) & non-commercial establishment."
On January 13, 2015, the trial court issued an order denying defendant's petition on the following grounds: "459-1, 459-2—(Jewelry store to sell stolen jewelry) not qualifying felonies." Defendant appealed as to count 2.
DISCUSSION
We note defendant first argues the trial court erred by finding his first degree burglary conviction was a disqualifying offense rendering him ineligible for Proposition 47 relief. We disagree with defendant's characterization of the record. The trial court did not find defendant was disqualified from Proposition 47 relief due to his first degree burglary conviction. Rather, the record reveals the trial court thought defendant was applying for Proposition 47 relief on his first degree and second degree burglary convictions, and simply (as well as correctly) found first degree burglary was a nonqualifying offense not reached by Proposition 47 rather than a disqualifying offense completely precluding defendant from Proposition 47 relief.
Defendant argues that the trial court erred when it determined he was not eligible for resentencing on his second degree burglary conviction. In an opinion filed January 28, 2016, this court affirmed the trial court's ruling on the basis that defendant's intent when he entered the jewelry store was not to commit larceny, as required by the new misdemeanor offense of shoplifting (§ 459.5), but rather "to sell stolen jewelry." On April 13, 2016, the California Supreme Court granted defendant's petition for review. On June 28, 2017, the California Supreme Court ordered our January 28, 2016 opinion in this case vacated. The Supreme Court directed this court to reconsider the matter in light of People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales); after receiving supplemental briefing from the parties, we do so post.
Section 459.5, subdivision (a), reads in full: "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."
Defendant argues, and the People agree, that under Gonzalez defendant's actions constitute shoplifting within the meaning of section 459.5. However, the People urge that we affirm the trial court based on defendant's failure to establish that the value of the jewelry was $950 or less. --------
Section 1170.18 permits a defendant currently serving a felony sentence to petition a trial court for a recall of that sentence and for resentencing in accordance with new provisions found in certain added or amended offenses. Proposition 47 added to the Penal Code the new misdemeanor offense of shoplifting. (§ 459.5.) A defendant currently serving a sentence for nonresidential, second degree burglary (§ 460, subd. (b)) may now be resentenced to misdemeanor shoplifting, provided the defendant entered the commercial establishment at issue "with intent to commit larceny . . . ." (§ 459.5, subd. (a).)
In Gonzales, supra, 2 Cal.5th 858, the defendant twice entered a bank and cashed checks he had stolen from his grandmother and, without her permission, made out to himself for $125. (Id. at p. 862.) The defendant pled guilty to second degree burglary. He later filed a petition for resentencing under section 1170.18. The trial court denied the petition and the Court of Appeal affirmed. However, the Supreme Court reversed the Court of Appeal, holding that the "defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute." (Ibid.) The court further held that a defendant who commits shoplifting cannot be charged with burglary based on an entry to commit identity theft. (Id. at pp. 876-877.)
Defendant argues, the People concede, and this court agrees, that under Gonzales, defendant's actions in entering the jewelry store with the intent to "sell stolen jewelry" constitute shoplifting within the meaning of section 459.5. This is because the record establishes defendant entered the jewelry store with the intent to commit theft by false pretenses.
As to the value of the stolen jewelry that defendant intended to sell when he entered the jewelry store, defendant contends in his supplemental brief that the "crime did not involve more than $950," and refers the transcript of his plea hearing. We have carefully reviewed the transcript and the rest of the record in this appeal, and find no reference to the value of the jewelry.
Section 1170.18 has been read to require that the petitioner make an initial prima facie evidentiary showing that the subject felony constitutes a misdemeanor, including that the value of stolen property was not more than $950. (People v. Johnson (2016) 1 Cal.App.5th 953, 9964-65; People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008; People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450; People v. Sherow (2015) 239 Cal.App.4th 875, 878.) "The defendant must attach information or evidence necessary to enable the court to determine eligibility. [Citation.]" (Perkins, at p. 137.)
As this court and others have recognized, the evidence to support the trial court's factual determination that the felony conviction constitutes a misdemeanor under Proposition 47 "may come from within or outside the record of conviction, or from undisputed facts acknowledged by the parties." (People v. Hall (2016) 247 Cal.App.4th 1255, 1263; see People v. Perkins, supra, 244 Cal.App.4th at p. 140, fn. 5.) A police report may be admissible to make such a showing, especially when both parties agree the court needs additional facts from the report to determine the issue of valuation. (People v. Salmorin (2016) 1 Cal.App.5th 738, 743-744; Perkins, at p. 140, fn. 5.)
Here, defendant failed to make a prima facie showing that the jewelry he intended to sell was worth $950 or less. Defendant neither made any such assertion in his petition nor did he attach or reference any portion of the record from which the court could have made such a determination.
Defendant's failure to produce prima facie evidence of the value of the jewelry rendered him ineligible for resentencing. The court properly denied the petition.
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. CODRINGTON J.