Opinion
H043042
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1485745)
I. INTRODUCTION
Defendant Mark Anthony Lopez pleaded no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and admitted that he had a prior strike (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 16 months in prison, consecutive to a term imposed in an unrelated case. Defendant later filed a petition for resentencing pursuant to section 1170.18, which was enacted as part of Proposition 47, seeking to have his felony conviction resentenced to misdemeanor shoplifting under section 459.5. The trial court denied the petition after determining that the laundry room of the apartment complex that defendant had burglarized was "not a commercial establishment that was open during business hours" as required by the shoplifting statute.
All further statutory references are to the Penal Code unless otherwise indicated. --------
On appeal, defendant contends that the trial court erred in denying his petition, and that the court should have resentenced him to misdemeanor shoplifting pursuant to Proposition 47.
We determine that defendant failed to show that, at the time he entered the laundry room, it was "open during regular business hours" within the meaning of the shoplifting statute. (§ 459.5, subd. (a).) Accordingly, we will affirm the trial court's order.
II. FACTUAL AND PROCEDURAL BACKGROUND
In June 2014, defendant was charged by complaint with five counts of second degree burglary (§§ 459, 460, subd. (b)). In each count, it was alleged that defendant entered "a building, laundry room" with the intent to commit theft. The complaint also alleged that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12), and that he had served four prior prison terms (§ 667.5, subd. (b)).
In August 2014, defendant pleaded no contest to one count of second degree burglary and admitted that he had a prior strike. He entered his plea and admission with the understanding that he would receive a 16 month term consecutive to his sentence in an unrelated case. The remaining counts and allegations were submitted for dismissal at the time of sentencing.
In October 2014, defendant was sentenced to 16 months in prison, consecutive to a four-year prison term in an unrelated case. The remaining counts and allegations were dismissed. Defendant was also ordered to pay restitution of $1,625 to the victim, "WASH Laundry." The restitution order, which is on a Judicial Council form, states that the ordered restitution includes the "value of property stolen or damaged."
In October 2015, defendant filed a petition for resentencing under section 1170.18. In the petition, defendant contended that his second degree burglary offense had been reclassified as a misdemeanor. He apparently sought to have the offense resentenced as misdemeanor shoplifting.
Attached to defendant's petition were two pages that appear to be excerpts from a report by the San Jose Police Department regarding his offense. The header on each page includes the phrase "459-3 459 PC BURG COMM-FORCE." According to the two-page excerpt, at approximately 6:12 a.m., defendant entered the unsecured window of a laundry room of an apartment complex. He cut three locks on the laundry machine coin lock boxes. The police apparently responded to the apartment complex after receiving a call from a witness. Defendant was taken into custody by the police after he exited the laundry room. Inside the laundry room were two backpacks containing burglary tools, including bolt cutters and pry bars. Defendant told the police that he was at the apartment complex to visit a woman. He stated that he was inside the laundry room because security guards had previously found him loitering on the property and had asked him to leave. Defendant stated that the room was unlocked when he entered and that the window was closed. He further claimed that he had locked the laundry room door as he exited, just prior to being taken into custody by police. Defendant admitted touching a screwdriver that was on the floor in the laundry room and seeing a backpack that was between the wall and the clothes dryers. He denied possessing the tools or other items in the laundry room and denied cutting the locks on the machines.
The prosecution filed a response to defendant's petition and requested that it be denied. The prosecution contended that defendant's second degree burglary offense did not qualify as a misdemeanor. According to the prosecution, "defendant forced entry into a laundry room with a metal paint scraper" and "forced the surveillance camera up, which stopped recording." Defendant then "attempted to pry open the coin box, causing damage to the laundry machine." The prosecution argued that defendant's conduct did not constitute shoplifting. The prosecution also argued that the victim was awarded $1,625 in restitution, which "exceeds the value threshold" for shoplifting.
In an order filed November 6, 2015, the trial court denied defendant's petition for resentencing without a hearing, after concluding that the petition failed to set forth a prima facie case for relief. The court stated that "the record of conviction reflects that the crimes involved breaking and entering into coin machines in a laundry room and not a commercial establishment that was open during business hours. The restitution order also indicates that the value of the theft exceeded $1,600."
Defendant filed a notice of appeal on November 18, 2015. In the notice, defendant contended that he was convicted of commercial burglary, that this was reflected in the police report, and that the value of the stolen property was $39.25 in quarters. On December 14, 2015, defendant filed an amended notice of appeal.
III. DISCUSSION
A. Legal Background: Proposition 47
On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 amended certain statutes to reduce those offenses to misdemeanors, and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326 (Chen).)
Relevant here, "Proposition 47 created a new crime of 'shoplifting,' a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary." (In re J.L. (2015) 242 Cal.App.4th 1108, 1112 (J.L.).) "The offense of burglary, when charged as a felony under section 459, remains a felony offense following the passage of Proposition 47 unless the defendant's criminal conduct" meets the elements of shoplifting under section 459.5. (Chen, supra, 245 Cal.App.4th at p. 327.)
Under section 459.5, "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." (Id., subd. (a), italics added.) If a defendant's conduct meets the definition of shoplifting, it "shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (Id., subd. (b).)
"The voter information guide for Proposition 47 explained that '[u]nder current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary.' [Citation.]" (J.L., supra, 242 Cal.App.4th at p. 1112.)
A defendant who is serving a sentence for a felony conviction, and who would have been guilty of a misdemeanor had the Act been in effect at the time of the offense, may petition for a recall of his or her sentence and request resentencing in accordance with the new statute that reclassifies the defendant's offense as a misdemeanor. (§ 1170.18, subd. (a).) If the petitioner meets the requisite statutory criteria, "the petitioner's felony sentence shall be recalled and the petitioner 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." (Id., subd. (b); see id., subd. (c).)
A defendant who petitions for resentencing must "establish initial eligibility for relief—which, under Proposition 47, is 'guilt[] of a misdemeanor.' [Citation.]" (People v. Johnson (2016) 1 Cal.App.5th 953, 965 (Johnson); accord, People v. Sherow (2015) 239 Cal.App.4th 875, 878.) In opposition, the prosecution may establish that the defendant is ineligible because the defendant "would not have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense . . . ." (Johnson, supra, at p. 965.) On appeal, a trial court's order or judgment "is presumed to be correct," and "the appealing party must affirmatively demonstrate error on the face of the record. [Citations.]" (People v. Davis (1996) 50 Cal.App.4th 168, 172; accord, People v. Garza (2005) 35 Cal.4th 866, 881.)
B. Analysis
Defendant contends that his offense meets the elements of misdemeanor shoplifting. First, he argues that the laundry room of the apartment complex is a "commercial establishment" (§ 459.5, subd. (a)), because it "provid[es] a service for cash." Second, defendant contends that "by the very nature of an apartment laundry facility, its business hours are 24/7" and therefore his offense occurred during normal business hours. He argues that it is irrelevant whether the facility is open only to residents. Third, defendant argues that the documents attached to his petition demonstrate that he did not take property worth more than $950, because he was arrested before any property was taken. Further, it is reasonable to conclude he did not expect to take more than $950 from the laundry coin boxes. In addition, the restitution order was not for property taken but for damage to property. Lastly, defendant contends that the crime of shoplifting is not limited to entries into stores that sell merchandise, nor limited to the taking of openly displayed merchandise. Rather, it applies "whenever the defendant enters a building or room with the intent to commit any form of theft."
The Attorney General contends that defendant's theft or intended theft of laundry machine coins does not constitute shoplifting because the shoplifting statute applies only when the defendant has an intent to steal "openly displayed merchandise." In this case, the laundry machine coins that defendant intended to steal was not merchandise being offered for sale, and defendant did not have "free access" to the private laundry room in the residential building. If, however, defendant's offense constitutes shoplifting, the Attorney General contends that the case should be remanded for the trial court to exercise its discretion regarding whether resentencing defendant would pose an unreasonable risk of danger to public safety. The Attorney General also argues that the prosecutor should be given an opportunity to withdraw from the plea bargain and to reinstate the dismissed charge(s).
In this case, defendant failed to meet his initial burden of establishing eligibility for resentencing under Proposition 47, by showing that he would have been guilty of misdemeanor shoplifting. In making this determination, we need not decide whether an apartment complex laundry room constitutes a "commercial establishment" within the meaning of section 459.5, subdivision (a), or whether the statute applies only to the taking of openly displayed merchandise. Even assuming the laundry room defendant entered is a commercial establishment within the meaning of the statute, defendant failed to show that he entered the laundry room "while that establishment is open during regular business hours." (§ 459.5, subd. (a).) According to the documents attached to defendant's petition for resentencing, defendant told the police that the laundry room door was unlocked, and that upon exiting the room he had locked the door. However, police determined that defendant had entered the laundry room through an unsecured window. Given that defendant entered the room by going through a window in the early morning, the documents attached to defendant's petition give rise to an inference that the laundry room was not "open" for "business." (§ 459.5, subd. (a).) Because the documents presented with defendant's petition reflect that the laundry room was not "open during regular business hours" at the time of his entry through the window, defendant failed to show that he would have been guilty of misdemeanor shoplifting had the statute been in effect at the time of his offense. (§ 459.5, subd. (a); see § 1170.18, subd. (a).) Accordingly, the trial court properly denied defendant's petition for resentencing.
IV. DISPOSITION
The November 6, 2015 order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.