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People v. Higuera

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2017
No. E065489 (Cal. Ct. App. Jan. 4, 2017)

Opinion

E065489

01-04-2017

THE PEOPLE, Plaintiff and Appellant, v. VERONICA LUCILLE HIGUERA, Defendant and Respondent.

Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PEF05277) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Respondent.

In 1997, petitioner Veronica Lucille Higuera (defendant) was convicted of second degree burglary, a felony. In 2015, the trial court granted her petition to be resentenced for shoplifting, a misdemeanor, pursuant to Proposition 47.

The People appeal. They contend that defendant failed to carry her burden of showing two of the elements of shoplifting — namely, that (1) she entered a commercial establishment and (2) she intended to commit larceny. They further contend that a police report that was before the trial court affirmatively demonstrated that defendant did not enter a commercial establishment and that she intended to commit identity theft.

As we will discuss, the People conceded below that defendant was eligible for resentencing. We must disregard the suppositious police report because the People have failed to include it in the appellate record. Hence, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, defendant was charged with burglary, in that she allegedly "enter[ed] a certain building located at 277 E. 4th Street, Perris, with intent to commit theft and a felony." (Capitalization altered.) She pleaded guilty to burglary and was placed on probation for three years. She was ordered "not [to] enter [the] premises of Perris Check Cashing." (Capitalization altered.)

Neither the plea form nor the judgment specified the degree of the burglary. However, because the trial court did not find that the burglary was first degree, the plea was to second degree burglary as a matter of law. (Pen. Code, § 1192.)

On November 5, 2014, Proposition 47 went into effect. (See People v. Esparza (2015) 242 Cal.App.4th 726, 735.)

In 2015, defendant filed a petition to reduce the conviction to a misdemeanor pursuant to Proposition 47. In their written response, the People did not check the box indicating that the conviction was not for a qualifying felony. Rather they checked the box indicating, "A hearing should be held to determine: [¶] . . . [¶] . . . value."

The trial court set the matter for a "Resentencing Conference." At that hearing, the prosecutor represented that defendant had cashed a stolen check at Perris Check Cashing for $150. She argued that defendant's crime did not constitute shoplifting (Pen. Code, § 459.5), as defined by Proposition 47, for two reasons: (1) Perris Check Cashing was not a commercial establishment, and (2) defendant's intent was to commit identity theft (Pen. Code, § 530.5).

The trial court ruled that defendant's crime did constitute shoplifting. It therefore granted the petition.

II

THE PEOPLE CONCEDED THAT

DEFENDANT WAS ELIGIBLE FOR RESENTENCING

Proposition 47 reduced specified theft-related offenses — provided they involve property worth $950 or less — as well as specified drug-related offenses from felonies (or wobblers) to misdemeanors. (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2016 rev. ed.) pp. 24-28.)

Available at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of January 4, 2017.

To this end, it enacted Penal Code section 459.5, which created the new crime of shoplifting. Specifically, Penal Code section 459.5, subdivision (a) now provides: "[S]hoplifting 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). . . . Shoplifting shall be punished as a misdemeanor . . . ."

Shoplifting, where it applies, is exclusive. Thus, Penal Code section 459.5, subdivision (b) provides: "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."

Proposition 47 did not change the definition of burglary, which consists of entering a building (or any of the other areas specified in the statute) with the "intent to commit . . . larceny or any felony . . . ." (Pen. Code, § 459.)

Finally, Proposition 47 also allowed a person previously convicted of a felony that would only be a misdemeanor under Proposition 47 to petition for resentencing. It did so by enacting Penal Code section 1170.18, which, as relevant here, provides:

"(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.

"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."

A defendant is ineligible for resentencing under Proposition 47 if he or she has a disqualifying prior conviction. (Pen. Code, § 1170.18, subd. (i).) However, the People have never claimed that defendant has such a conviction.

In sum, then, if defendant's crime met the definition of shoplifting — which would require, among other things, that she entered a commercial establishment with the intent to commit larceny — then she was entitled to resentencing; and if not, not.

"'[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. [Citations.]" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)

Here, defendant's petition did not include any information about the nature of her second degree burglary conviction. Thus, it did not show that she entered a commercial establishment, that she acted with the intent to commit larceny, or that the value of the property involved was $950 or less.

The People's written response, however, filled in some of these gaps. The People could have checked a box to indicate that the prior conviction was not for a qualifying felony, but they did not. They indicated that a hearing was necessary, but only for the purpose of determining the value of the property. Thus, they conceded that the second degree burglary conviction was based on entering a commercial establishment with the intent to commit larceny. Such "'"[a] judicial admission in a pleading . . . is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues . . . ."' [Citation.]" (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 218; see also People v. Mutter (2016) 1 Cal.App.5th 429, 436 [prosecutor's agreement that value of property was under $950 eliminated value issue].)

If the People wanted to controvert their concession at the hearing, they could have done so. However, they should have shown that it was the product of mistake or inadvertence. (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 457.) Moreover, to keep the record straight, they should have sought leave to amend. (Ibid.) They did neither. Defendant therefore had no notice that they were disavowing their concession or that she might need to prove the previously conceded matters.

At the hearing, the People affirmatively represented that the crime involved "a stolen check that they cashed for $150." Thus, they also conceded that the value of the property was less than $950. (People v. Jackson (2005) 129 Cal.App.4th 129, 161 ["Oral statements of counsel may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such."].)

The People claim that the facts underlying the conviction were shown by a police report that was in the court file. The minute order and the reporter's transcript of the hearing do not indicate that a police report was filed, lodged, or otherwise submitted to the trial court. While this appeal was pending, the People moved to augment the record with this police report, and we granted the motion. The superior court clerk, however, responded, "The police report is not in the court file or in this court's possession." The People have not taken any further steps to make the police report part of the appellate record. Accordingly, we apply one of the most fundamental principles of appellate practice: If it isn't in the record, it doesn't exist. (See, e.g., People v. Wilson (2005) 36 Cal.4th 309, 344.)

We therefore conclude that, even though defendant failed to carry her initial burden in her petition, the People ultimately conceded that she was eligible for resentencing.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J. I concur: CODRINGTON

J.

MILLER, J., Dissenting and Concurring

I respectfully dissent to that part of the majority opinion finding that the People's written form response amounted to a concession of eligibility under Proposition 47.

Defendant had to make an initial prima facie evidentiary showing that his felony conviction of burglary constituted misdemeanor shoplifting because the value of the property was less than $950, and that he entered a commercial establishment to commit larceny. (People v. Sherow (2015) 239 Cal.App.4th 875, 878 ["It is a rational allocation of burdens if the petitioner in such cases bears the burden of showing that he or she is eligible for resentencing of what was an otherwise valid sentence"]; see also People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008.) Defendant provided no evidence with the petition, by either a declaration or documents, establishing the value of the property or whether the building he entered was a commercial establishment. The People checked the box on the form response that a hearing was necessary to determine the value of the check. However, the People left blank the box on the form that defendant was not entitled to relief. The form was not signed under penalty of perjury. The majority concludes that such form response conceded the issues that the building was a commercial establishment and defendant entered with the intent to commit larceny.

I do not agree that the form response alleviates defendant's prima facie burden of establishing eligibility. Penal Code section 1170.18 provides that once the court receives a petition, "the court shall determine whether the petitioner" would have been guilty of a misdemeanor. Penal Code section 1170.18 does not require the People file a response or contest the petition. Moreover, the trial court did not have to accept any concession on the form by the People as it had an affirmative duty to determine defendant's eligibility. While the initial pleading submitted to the trial court was insufficient, the trial court decided to conduct a hearing.

At the hearing, the prosecutor, representing the People, stated, "It's a 459 second. It's a Perris check cashing. Again, our argument is it's not a commercial establishment." The People also stated on the record that the intent was to commit a violation of Penal Code section 530.5, identify theft, and not shoplifting. These statements on the record further support that the form response filed by the People was not intended to be a concession of these issues. Finally, the People attested on the record that based on their knowledge of defendant's conviction, the value of the check was $150. No evidence or argument was provided by defendant's counsel.

These on-the-record representations support the trial court's conclusion that defendant's conviction qualified under Proposition 47. The trial court could determine that entering a check cashing establishment to cash a $150 check on an account that did not belong to defendant constituted shoplifting. I concur in the result reached in the majority opinion that the trial court properly granted the petition.

MILLER

J.


Summaries of

People v. Higuera

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 4, 2017
No. E065489 (Cal. Ct. App. Jan. 4, 2017)
Case details for

People v. Higuera

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. VERONICA LUCILLE HIGUERA…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 4, 2017

Citations

No. E065489 (Cal. Ct. App. Jan. 4, 2017)