Opinion
F071863
02-10-2017
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ALFREDO COBIAN, Defendant and Appellant.
Sylvia W. Beckham, 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, and Lewis A. Martinez, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. F12907870, F12908108)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Sylvia W. Beckham, 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, and Lewis A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Peña, J.
-ooOoo-
Appellant Raymond Alfredo Cobian appeals from the denial of his petition for resentencing, covering convictions from case Nos. F12907870 (870 case) and F12908108 (108 case), filed pursuant to Proposition 47. Appellant contends a remand is required because the burden of proof was not clearly identified in the case law and the record is insufficient to sustain the conclusion he was ineligible for resentencing on two convictions for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In the 870 case, appellant pled nolo contendere, citing People v. West (1970) 3 Cal.3d 595 and the police reports for the factual basis, to one count of second degree commercial burglary. In the 108 case, appellant pled nolo contendere, again citing West and the police reports for the factual basis, to one count of second degree commercial burglary. The pleas included a recommended sentencing lid of eight years and four months, due to prior strike and prison prior enhancement admissions, when the cases were considered together. In line with the pleas, appellant received a sentence of eight years and four months.
On February 25, 2015, appellant filed a one-page petition requesting resentencing under Proposition 47 for the convictions in the 870 and 108 cases, along with a third case, case No. F08907797, which is not subject to this appeal. Counsel was appointed and a hearing on appellant's petition was held on May 4, 2015. During that hearing, at which appellant was not present, the trial court asked the prosecution for their position on whether appellant was eligible for resentencing. For the 870 case, the prosecutor argued appellant was not eligible because the offense "was a burglary at 5:19 a.m. He broke a window in order to gain entry." For the 108 case, the prosecutor argued appellant was ineligible because "a silent alarm was activated. The defendant was caught going in and out of the roof of the property." Appellant's counsel submitted the issue to the court when asked for a comment. No evidence was admitted by the trial court.
The trial court denied appellant's petitions. This appeal timely followed.
DISCUSSION
Appellant argues the lack of evidence admitted to determine the nature of his underlying offenses results in a record which is insufficient to sustain the trial court's determination. He seeks a remand for further proceedings. Standard of Review and Applicable Law
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offence 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. [Citation.] 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." ' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).)
"Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor '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).) '[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. (§ 459.5.)' " (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.)
The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of introducing facts sufficient to demonstrate eligibility. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow).)
As the trial court's eligibility determination is factual in nature, we review that determination for substantial evidence. (People v. Johnson (2016) 1 Cal.App.5th 953, 960; see also People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; Rivas-Colon, supra, 241 Cal.App.4th at p. 452, fn.4 [" '[T]he basic structure of Proposition 47 is strikingly similar to Proposition 36' and 'much of the appellate interpretation of Proposition 36 is likely relevant in the interpretation of Proposition 47.' "].) Appellant's Petition Failed to Demonstrate Initial Eligibility
As noted, appellant's initial petition was a single page which merely identified the cases for which he sought resentencing. Thus, similar to Sherow, the "petition here gave virtually no information" regarding appellant's eligibility for resentencing. (Sherow, supra, 239 Cal.App.4th at p. 880.) Appellant provided no evidence suggesting his burglary convictions were eligible for resentencing, such as evidence of an intent to commit larceny sufficient to satisfy the shoplifting statute, evidence of the value of the property at issue, or, given the objections made by the prosecution, evidence the establishments were open for business at the time of appellant's criminal conduct. As the burden was properly upon appellant to provide evidence of initial eligibility, the trial court properly denied appellant's petitions.
It is likely, given appellant's counsel's limited response at the hearing, however, that this shortcoming was the result of confusion. Appellant's petition was filed within months of the statute coming into effect and thus was made without the substantial guidance that has followed from the courts. Appellant's petition is therefore properly denied without prejudice. (See People v. Perkins (2016) 244 Cal.App.4th 129, 139-140.)
DISPOSITION
The order is affirmed without prejudice.