Opinion
F073306
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. SAMMY CERVANTEZ, Defendant and Appellant.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F12906086)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise L. Whitehead, Judge. Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
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INTRODUCTION
Appellant/defendant Sammy Cervantez pleaded no contest to second degree robbery, second degree commercial burglary, and unlawful use of tear gas, and admitted five prior strike convictions, pursuant to a negotiated disposition where the court dismissed four of the prior strikes and sentenced him to the second strike term of eleven years and four months. He subsequently filed a petition for resentencing pursuant to Proposition 47. The court denied the petition and found he was not eligible for resentencing as a matter of law.
On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has submitted a letter brief and requests this court to address certain issues as to whether his conviction for second degree burglary should have been reduced to a misdemeanor. We affirm.
FACTS
The instant record does not contain any admissible evidence about the underlying offenses that resulted in defendant's convictions. At the sentencing hearing, the court and the attorneys made the following statements about the incident. Defendant and codefendants Michael Norman and Douglas Brewer, Jr. entered an AT&T retail store during business hours on August 12, 2012. They committed a " 'snatch and grab' " robbery and took cell phones that were on display. One of the parties discharged tear gas in the store. The complaint
On September 13, 2012, a first amended felony complaint was filed which charged defendant with count VII, second degree robbery "from the person, possession, and immediate presence of AT&T" (Pen. Code, § 211); count VIII, second degree commercial burglary, in that he unlawfully entered a commercial building, AT&T, with intent to commit larceny or any felony (§§ 459/460, subd. (b)); and count IX, unlawful use of tear gas and a tear gas weapon upon four people (§ 22810, subd. (g)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
It was further alleged that on November 1, 1996, defendant was convicted of five prior strikes for second degree robbery (§§ 211/212.5, subd. (c)), in Fresno County Superior Court case No. 548843-2.
At the sentencing hearing in this case, the court stated that defendant's five prior strike convictions for robbery were based on his conduct as "the driver of the vehicle used in the robberies of an Exon [sic] gas station, a Shop and Save, a Johnny Quik store, and his co-defendant with a sawed-off shotgun during the robberies." Defendant was sentenced to six years in prison in that case.
The amended complaint also alleged that codefendants Norman (counts I, II, and III) and Brewer (counts IV, V, and VI) committed the same three offenses. Norman and Brewer were not alleged to have suffered any prior felony convictions. The plea proceedings
Also on September 13, 2012, the court conducted a hearing where defendant and his codefendants Norman and Brewer entered pleas pursuant to negotiated dispositions.
Defendant pleaded no contest to counts VII, VIII, and IX as alleged in the amended complaint, and admitted five prior strike convictions, based on the court's indicated sentence that it would dismiss four of the five prior strike convictions and sentence defendant to no more than 11 years four months in prison, thus avoiding a potential third strike term of at least 25 years to life. The parties stipulated to the police reports as the factual basis for the pleas.
Defendant also pleaded no contest in an unrelated case to a misdemeanor violation of Vehicle Code section 23152, subdivision (a), driving under the influence, with a prior violation of Vehicle Code section 23152, subdivision (b).
Codefendant Brewer pleaded no contest to second degree robbery and unlawful use of tear gas, with a maximum possible term of five years eight months. The court dismissed the charge of second degree burglary.
Codefendant Norman pleaded no contest to second degree robbery, and also entered pleas and admitted violating probation in unrelated cases, for a maximum possible term of four years four months.
The court referred all three cases to the probation department. Sentencing
On June 11, 2013, the court conducted a sentencing hearing for defendant and codefendants Brewer and Norman. The court began with defendant's case, and made the following statements.
"THE COURT: Mr. Cervantez, let me speak with you for a brief minute, sir. Your counsel, district attorney and I sat down and spoke regarding your case, well, this afternoon. And your counsel has some serious concerns regarding the appropriateness of the penalty that I intend to impose. There is a question of what the evidence would be in this case, whether reports of the police are accurate enough. The officers - there are some inaccuracies in those reports which might have an effect on the sentence that ultimately you would serve. I want to know and make sure that you - sir, that you are ready to proceed, there aren't any issues that are left unresolved. I intend to impose a sentence of 11 years and four months in your case. I've heard what your attorney has to say. I have to agree that the police reports are not necessarily completely accurate. If that would be a benefit to you, I don't know, sir. The only way to test that is to go to trial and to find out. I don't want there to be any issues regarding, you know, 'My attorney improperly advised me; there were some issues; I was pressured into this' or anything like that. Your call, sir. This is what I intend do. If it's not what you want to do, you need to iron that out right now.
"[DEFENDANT]: I would actually just continue with sentencing. I don't want to open the door to a large sentence, you know.
"THE COURT: Always a risk, sir. You roll the dice."
Defense counsel objected to the court's indicated sentence of 11 years and four months. "[Defendant] is getting the heaviest end of the stick here, and that's due partly to his - or mostly due to his prior criminal history, and due to that he is facing the sentence that is up to three times harsher than his co-defendants and possibly a lot harsher due to the fact that they're being considered for programs."
Defense counsel stated defendant was a drug addict, and he used crack and crystal methamphetamine. Counsel asserted defendant was not a violent felon, and he had only been convicted of misdemeanors after his felony convictions and prison sentence in 1996. Counsel complained that the 1996 prior convictions prevented defendant from getting into a drug treatment program, whereas his codefendants were being considered for such placement.
Defense counsel also objected to statements in the probation report about the robbery and burglary at the AT&T Store, because it stated that defendant "engaged in violent conduct which indicates a serious danger to society. In fact, [defendant] was sitting in his van at the time of this incident, and the person alleged to have committed all the violence is being considered for a program, Your Honor, a fraction of the sentence [defendant] is being considered for."
The court disagreed about defense counsel's version of the current offenses, and stated that defendant also went into the store, and he had not been charged as an aider and abettor. Counsel replied that defendant did not perpetrate the violence in this or any other case.
Defense counsel also objected to the probation report's statement that the instant offenses indicated sophistication and planning: "These guys walk in - one guy walks into a busy cellular provider store in the middle of the day, basically an essential 'snatch-and-grab,' to me really doesn't scream sophisticated criminal. These guys just met a couple of hours before this incident. At best it's a half-baked plan on the part of the co-defendant once he entered to grab a cell phone and run with it."
The court replied that there was "certainly some planning and sophistication and an attempt to see if this works," when considered in conjunction with defendant's prior robbery convictions, and defendant may have believed that even though it didn't work in the 1996 cases, "perhaps it would work today."
Defense counsel again argued that 11 years four months was "a pretty harsh sentence" considering what his codefendants were getting, "especially the guy who perpetrated the violence, and according to my client, did this on his own. But again, to avoid the risk of multiple life sentences, he is going to go ahead and be sentenced today and is asking the Court for any lesser time than what they have indicated."
The prosecutor replied that defendant's five prior strike convictions were for aiding and abetting another individual and committing strong armed robberies in 1995. The prosecutor stated defendant faced multiple third strike terms of 25 years to life in this case, in the absence of the court's indicated sentence at the plea hearing. Defendant had plenty of time when he was out of custody to get into any drug program, and he failed or refused to do so.
The court stated that defendant's five prior strike convictions for second degree robbery occurred because "he was the driver of the vehicle used in the robberies of an Exon [sic] gas station, a Shop and Save, a Johnny Quik store, and his co-defendant with a sawed-off shotgun during the robberies.... There is compounding at least in similarity to the strikes, which kind of stand out," because defendant was a member of a robbery team in both cases.
The court dismissed four of defendant's prior strike convictions. It imposed the second strike term of 11 years and four months, based on the upper term of five years for count VII, second degree robbery, doubled to 10 years; and one year four months (one-third the midterm, doubled) for count IX, unlawful use of tear gas; the court stayed the term imposed for count VIII, second degree burglary, pursuant to section 654.
The record is silent as to the court's disposition of the codefendants' cases.
PROPOSITION 47
On November 4, 2014, California voters approved Proposition 47, and it went into effect the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "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)." (Id. at p. 1091.)
Proposition 47, codified in section 1170.18, reduced the penalties for a number of offenses. "Among those crimes are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5. Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950. [Citations.]" (People v. Sherow (2015) 239 Cal.App.4th 875, 879.)
As such, section 459.5, subdivision (a) states in pertinent part:
"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 fifth dollars ($950). Any other entry into a commercial establishing with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor ...."
"Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced 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).) Subdivision (c) of section 1170.18 defines the term 'unreasonable risk of danger to public safety,' and subdivision (b) of the statute lists factors the court must consider in determining 'whether a new sentence would result in an unreasonable risk of danger to public safety.' (§ 1170.18, subds. (b), (c).)" (People v. Rivera, supra, 233 Cal.App.4th at p. 1092.)
"Because defendant is the petitioner seeking relief, and because Proposition 47 does not provide otherwise, 'a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.' [Citations.] In a successful petition, the offender must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. [Citations.] The defendant must attach information or evidence necessary to enable the court to determine eligibility. [Citation.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137, italics added; see also People v. Hudson (2016) 2 Cal.App.5th 575, 583.)
Second degree robbery (§ 211) and unlawful use of tear gas (§ 22810, subd. (g)(1)) are not crimes listed in section 1170.18. Those statutes have not been amended by Proposition 47, and the crimes remain felony offenses. (§ 1170.18.)
PETITION FOR RESENTENCING
On July 13, 2015, defendant filed a petition in pro. per., using a preprinted form, for reduction of his felony convictions and resentencing pursuant to Proposition 47. The petition asserted that he was convicted of second degree robbery, second degree burglary, and unlawful use of tear gas, and sentenced to eleven years four months. Defendant further asserted his convictions were for offenses which would now be treated as misdemeanors under Proposition 47, and he had not been convicted of any disqualifying offenses.
In support of the petition, defendant submitted a letter to the superior court, offering his version of the underlying offenses:
"My codefendant entered an AT&T phone center and stole two cell phones. My codefendant had on a necklace, which carried a small canister of mace that he sprayed while running out of the phone center. My codefendant ran to my van, threw the small canister of mace, and threw the two cell phones. AT&T recovered the cell phones at the time of the incident. My codefendants [sic] intentions were to steal the phones and run to the van without hurting anyone. I only agreed to the stealing of the phone without anyone being hurt." The court's first hearing on the petition
At the sentencing hearing, defense counsel similarly asserted that defendant waited in the van while the codefendants went into the store. The court disagreed with defense counsel's version, and stated that defendant also went into the store and he had not been charged as an aider and abettor. Defense counsel did not object to the court's statement.
On August 17, 2015, the court conducted a hearing on defendant's petition for resentencing. Defendant was not present, and represented by appointed counsel.
The court stated defendant was ineligible for resentencing under Proposition 47 based on his convictions in count VII for second degree robbery, and count IX for unlawful use of tear gas, and denied the petition as to those two counts.
The court asked the parties about whether defendant was eligible for resentencing for his conviction in count VIII for second degree commercial burglary. The prosecutor objected and stated "the theft was from an AT&T store. Cell phones were involved. The value we have down as 1,500 dollars."
The court asked defense counsel if he wanted a hearing on the value of the property taken during the burglary. Counsel asked for a hearing because "even though it's not going to make any difference on time, it would make a difference as to his prior record."
Defense counsel was referring to the sentencing court's decision to sentence defendant for second degree robbery and unlawful use of tear gas, and stay the term imposed for second degree burglary. Counsel obviously intended to determine whether defendant's burglary conviction could be reduced to a misdemeanor, even though he had been sentenced on the two felonies which were not eligible for reduction under Proposition 47.
The court advised counsel that he had the burden to establish the value of the property to show defendant was eligible for resentencing under Proposition 47. Counsel agreed and said that, "[a]t the very least, I need to get ahold of the police reports and look at them." Counsel added: "If it's two phones, probably was. If it was just one, it would be under" the valuation limits for Proposition 47. The court continued the matter. Defendant's letters to the court
Defense counsel did not submit any additional pleadings to the court in support of defendant's petition.
On September 9, 2015, defendant sent a letter to the court and asked for appointment of a new attorney. He also stated that he never went into the store, and that he was "under the influence of drugs and alcohol and wasn't thinking of what could possibly go wrong" when he committed the current offenses.
On October 12, 2015, defendant sent another letter to the court about his pending petition for resentencing. Defendant offered the following version of the incident. Defendant said he was with Norman, and they ran into Brewer. Defendant gave Brewer a ride, and it was Brewer's idea to go into an AT&T store, steal a cellphone, and run out before the employees knew what happened. Defendant and Norman agreed. Defendant claimed that he and Norman did not know Brewer had mace and was going to spray it during the robbery, and Brewer "changed it from a simple shoplifting to robbery" by doing so.
Defendant complained that at his plea hearing, Brewer told defendant's attorney that defendant did not know about the mace. Defendant also complained that he thought he was going to "go home" on the day of the plea hearing, but he was shocked and felt he had no choice to take the plea deal to avoid being sentenced to 33 years. Defendant said Brewer had been placed in a drug program and had already been released. Second hearing on the petition
As defense counsel stated at the sentencing hearing, defendant faced multiple indeterminate third strike terms of at least 25 years to life if he went to trial and was convicted of the charged felonies, and not a determinate term of 33 years. --------
On February 8, 2016, the court conducted the continued hearing on defendant's petition. Defendant was not present; he was represented by a different appointed counsel. The court asked counsel if he was able to continue in defendant's absence, and counsel said yes.
The court again stated that defendant's convictions for second degree robbery and unlawful use of tear gas were not eligible for resentencing under Proposition 47. The court also stated that in count VIII, defendant was convicted of second degree burglary. The prosecutor stated the burglary involved property worth $1,500.
The court asked defense counsel if he wanted an evidentiary hearing to determine the value of the property stolen and establish defendant's eligibility for resentencing under Proposition 47. Counsel said no, and he did not object to the prosecutor's statement about the value of the stolen property.
The court denied the entirety of defendant's petition, and found defendant failed to meet his burden of proving his offense should be reduced to a misdemeanor violation of section 459.5.
On February 22, 2016, defendant filed a timely notice of appeal and asserted he was eligible for resentencing based on his conviction for second degree burglary.
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on April 19, 2016, we invited defendant to submit additional briefing.
Defendant's contentions
On April 23, 2016, defendant submitted a letter to the court. Defendant said that as to his conviction for second degree burglary, the prosecutor incorrectly stated that the value of the stolen property was $1500. "That is incorrect. The phones taken from AT&T were used. They were display models sitting on the shelf for the public to use. Also the police officers/detectives returned the phones to AT&T store management at the time of the incident. AT&T never suffered any loss. The new phones were kept in the back of the store which the public didn't have access to."
Defendant also asked this court for "an extension" so his appointed appellate counsel could "get a copy of the police report to present to the court for evidence. This will confirm the phones taken were used and valued less than $950.00."
Analysis
Defendant's contentions are meritless. At the first hearing on defendant's petition for resentencing, the court properly found as a matter of law that defendant was not eligible for resentencing for his convictions for second degree robbery and unlawful use of tear gas.
As to his conviction for second degree burglary, defendant was potentially eligible if he satisfied his burden of proving the value of the stolen property was less than $950. The prosecutor objected and stated the stolen property was worth $1,500. Defendant's attorney asked the court for an evidentiary hearing, and a continuance to review the police reports and determine the value of the stolen property and how many cell phones were taken. Counsel acknowledged defendant had the burden of proving the value of the stolen property was less than $950.
At the continued hearing, the prosecutor again stated the value of the stolen property was $1,500. The court asked defendant's attorney if he wanted an evidentiary hearing on the value of the stolen property. Defense counsel declined and did not object to the prosecutor's statement or the court's denial of the petition.
The record thus establishes that defendant's attorney reviewed the relevant evidence and determined the value of the property taken from the AT&T store was not less than $950, and that his conviction for second degree burglary could not be reduced to misdemeanor shoplifting.
Defendant further asserts that AT&T never suffered any losses because the cellphones were recovered. Defendant's argument implies the property was never stolen. Defendant pleaded no contest to the completed offenses of second degree robbery and second degree burglary, and not to any attempt offenses. " 'Robbery is the taking of "personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property." ' [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 608.) While defendant's robbery conviction is not subject to reduction under Proposition 47, his no contest plea to that offense constituted his admission that the property was taken from the possession of the AT&T store or its clerks by use of force or fear and with the specific intent to deprive the owner of possession.
We further note that "[o]ne may be liable for burglary upon entry with the requisite intent, regardless of whether the felony or theft actually committed is different from that originally contemplated, or whether any felony or theft actually is committed. [Citation.]" (In re Matthew A. (2008) 165 Cal.App.4th 537, 540, italics added; People v. Washington (1996) 50 Cal.App.4th 568, 578-579.) A conviction for second degree commercial burglary may be reduced to a misdemeanor shoplifting only upon proof of the elements of section 459.5, that the defendant entered a commercial establishment "with intent to commit larceny ... where the value of the property taken or intended to be taken does not exceed" $950. (§ 459.5, italics added.)
The fact that law enforcement authorities may have recovered the stolen property at some point after defendant completed the commission of the offenses does not undermine defendant's intent to commit robbery and burglary. Moreover, defendant still had the burden of proving the property taken "or intended to be taken" did not exceed $950, in order to reduce his burglary conviction to misdemeanor shoplifting.
Finally, we note that defendant was not present at the two hearings on his petition, where the court addressed the initial legal question of whether he was eligible for resentencing under Proposition 47. At the first hearing, the court properly found defendant was not eligible for resentencing as a matter of law for second degree robbery and unlawful use of tear gas. At the second hearing, defense counsel declined an evidentiary hearing as to the value of the property stolen as to his conviction for second degree burglary, and the court again determined as a matter of law that he was not eligible for resentencing. Thus, the two hearings in this case were merely to determine defendant's initial eligibility as a matter of law, and defendant was not entitled to be present. (See, e.g., People v. Fedalizo (2016) 246 Cal.App.4th 98, 109.)
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The order is affirmed.