Opinion
E065364
03-13-2017
THE PEOPLE, Plaintiff and Appellant, v. VICTOR RAYSHARD MOSLEY, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Marleigh A. Kopas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF019432) 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. Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Respondent.
The People appeal from an order of the superior court granting defendant and respondent Victor Rayshard Mosley's petition (Pen. Code, § 1170.18) to reduce his felony commercial burglary (§ 459) conviction to misdemeanor shoplifting (§ 459.5) under the Safe Neighborhoods and Schools Act (Proposition 47). (§ 1170.18.) On appeal, the People argue that (1) defendant failed to meet his burden of establishing eligibility for the redesignation of the offense to a misdemeanor under Proposition 47; and (2) defendant is ineligible for reduction because there is evidence defendant committed the burglary with the intent to commit a conspiracy. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report.
On January 8, 2007, law enforcement responded to a theft at a Sports Chalet located at 40432 Winchester Road in the city of Temecula. Upon arrival, the suspects were no longer in the area and a deputy contacted the store manager. The store manager stated that he witnessed a group of five juveniles—two Asian females, a black male, a Hispanic male, and an Asian male—inside the store who looked suspicious. A couple of the juveniles had asked to try on shoes. The store manager later discovered three empty shoe boxes—two pairs of slip-on Vans valued at $40 each and one pair of Jordan Mach III valued at $99.99—in the dressing rooms. The store manager attempted to catch the suspects as they were exiting the store, but they fled in a silver Honda Civic.
The deputy was later contacted by a Promenade Mall deputy who reported that two juveniles had stolen five cell phones from a cell phone kiosk in the mall and fled in a silver Honda Civic.
Shortly thereafter, another deputy saw the suspect vehicle and initiated a traffic stop. The passengers and another individual who was walking on the side of the vehicle matched the description of the suspects. The deputy advised the individuals of the situation and searched the vehicle. The search of the vehicle uncovered numerous clothing items with tags and accessories, as well as the stolen shoes from Sports Chalet and four cell phones. The majority of the items were from Hollister, Victoria's Secret, and JCPenney, which were stores located in the Promenade Mall. Based on the items recovered and the matching description of the vehicle and individuals, the six individuals were taken into custody and transported to the police station for questioning.
The adult driver of the vehicle reported that she dropped her friends off at the mall while she went to visit her mother. She later picked up her friends from the mall and went to the Sports Chalet. She dropped her friends off at the entry door and waited for them in her car. About 20 minutes later, her friends returned and told her to " 'Hurry up, let's get out of here.' " During the drive, she overheard defendant, an adult black male, and the others talking about some items they had stolen, but she was not sure who stole what.
The two female Asian juveniles reported that everyone stole items from the mall, except the driver of the vehicle. The female juveniles noted that they stole from Hollister, Victoria's Secret, and Sports Chalet. One of the female juveniles reported that she saw defendant and the male Asian juvenile steal cell phones from the mall.
Defendant denied having any involvement in the thefts at the mall or the Sports Chalet. He also stated that the driver was the only one of his friends who was innocent.
The male Asian juvenile reported that he and his friends were involved with the thefts at the mall and that he and the other passengers talked about stealing from the mall while they drove from Banning to Temecula. He also stated that they had planned to go to the mall to see what they could steal. He admitted to stealing two belts, a shirt, and two cell phones from the kiosk. He further noted that defendant stole two cell phones from the kiosk and a pair of shoes from Sports Chalet while the girls stole a pair of shoes and the Hispanic male stole a hat from Sports Chalet.
The adult Hispanic male admitted to stealing the baseball hat he was wearing at the time of his interview. He then took it off and gave it to the deputy. He claimed he was not sure if the other individuals stole anything from any other stores because he was not with them while they were in the mall. He later identified other items he had stolen.
Following the interviews, the three adults and the three juveniles were arrested for burglary and conspiracy.
The cell phones were subsequently returned to the owner. The owner was shown a photographic lineup containing defendant and the Hispanic male. The owner identified the Hispanic male as one of the suspects, but was unable to identify defendant.
On January 24, 2007, a felony complaint was filed charging defendant and his two adult cohorts with one count of felony commercial burglary (§ 459; count 1) and one count of felony receiving stolen property (§ 496, subd. (a); count 2). Specifically, the burglary charge stated that the defendants "committed a violation of Penal Code section 459, a felony, in that on or about January 8, 2007 . . . they . . . willfully and unlawfully enter[ed] a certain building located at 40432 WINCHESTER ROAD, TEMECULA, with [the] intent to commit theft and a felony." The receiving stolen property charge specifically alleged that defendant and his cohorts receiving stolen property, "to wit, VARIOUS MERCHANDISE FROM VARIOUS STORES AT THE PROMENADE MALL . . . ."
On March 14, 2007, pursuant to a plea agreement, defendant pleaded guilty as charged. In return, defendant was placed on formal probation for a period of 60 months on various terms and conditions, including serving 180 days in county jail.
Defendant subsequently violated his probation by violating the law. On December 7, 2009, defendant's probation was revoked and he was sentenced to one year four months in state prison with credit for time served.
The court imposed the low term of one year four months on the burglary charge, count 1, and stayed defendant's sentence on count 2 for receiving stolen property.
On May 20, 2015, defendant filed a form petition to have his felony commercial burglary conviction and felony receiving stolen property conviction designated misdemeanors pursuant to section 1170.18, subdivision (f). Defendant's attorney noted on the form petition, under penalty of perjury, that "Defendant believes the value of the check or property does not exceed $950," and that defendant had completed his sentence on the felony.
The People filed a form response requesting a hearing be set to determine "value [and] circumstances."
The trial court thereafter set the matter for a hearing and appointed a public defender to represent defendant.
A hearing on defendant's petition was held on December 11, 2015. At that time, the trial court partially granted defendant's petition, and ordered defendant's felony commercial burglary charge reduced to misdemeanor shoplifting (§ 459.5). During the hearing, the prosecutor informed the court that the commercial burglary charge involved the theft at the Sports Chalet and admitted the value was less than $950. The prosecutor, however, argued that the crime involved a group of five individuals who stole together and that it was a conspiracy to commit theft. The prosecutor explained: "it's a conspiracy when you're going in there with a group of people and you're hitting other stores in the mall. I don't think this is the intent of Prop 47, like if it was a straight shoplifting where one person is going into a store and stealing something and leaving. [¶] It's a big difference between that and when you go in with a group of five and you're hitting other places as well and the grand total of the property found from various stores in the car was $2,354." Defense counsel responded that the burglary charge was "for the Sports Chalet, they did specifically have that addressed [sic] in the Complaint as well as the report. It's two pairs of Vans shoes, $40 each, and one pair of Air Jordan's for $99.99."
The court asked, "And no conspiracy alleged?" Defense counsel replied, "No conspiracy alleged." The prosecutor responded: "Your Honor, I don't even know a case where we've alleged a conspiracy on that. It's an uncharged conspiracy. It's an argument we get to make to a jury about intent. When you look at 459 and you look at their intent, it could be anything. A vandalism, to commit an assault, it could be anything. [¶] So when we're looking at intent, a conspiracy to commit theft, which is a wobbler, it still can be a felony burg, Your Honor, and I think it's a big difference between a person going into a store alone and a person going in with a group working together as a group. This isn't just one person." The court replied, "Well, I don't have a conspiracy alleged. I have him pleading to a 459. I have specific items alleged which are way under $950." The court found that defendant's commercial burglary offense was eligible for reduction to a misdemeanor and noted the People could file the police report. The court denied the petition as to defendant's receiving stolen property conviction as the loss exceeded $950.
The People filed a timely appeal.
II
DISCUSSION
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which became effective November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, sections 1170.18 and 459.5. (Rivera, supra, at p. 1091.) Section 1170.18 creates a process permitting persons previously convicted of crimes as felonies, which might be misdemeanors under the new definitions in Proposition 47, to petition for resentencing. (Rivera, supra, at pp. 1092-1093.)
Section 1170.18, subdivision (f), provides: "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." And, subdivision (g) provides that "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Penal Code section 459.5 was among the provisions added by Proposition 47. It reduces certain second degree burglaries to misdemeanors by defining them as "shoplifting," that is, "entering a commercial establishment with [the] 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)." (§ 459.5, subd. (a).)
In this case, the trial court granted defendant's petition to reduce his felony commercial burglary conviction to misdemeanor shoplifting. The People now appeal, asserting that defendant failed to establish eligibility and that defendant remained guilty of second degree burglary post-Proposition 47 because he committed the burglary with the intent to commit a conspiracy.
We review a trial court's "legal conclusions de novo and its findings of fact for substantial evidence." (People v. Trinh (2014) 59 Cal.4th 216, 236.) The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) "In interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles that govern statutory construction." (People v. Rizo (2000) 22 Cal.4th 681, 685.) " 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]' " (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) "In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.)
A. Petitioner's Burden
An applicant seeking redesignation of a felony to a misdemeanor bears the burden of producing evidence that the felony would have been a misdemeanor under Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow); People v. Perkins (2016) 244 Cal.App.4th 129, 140 (Perkins); People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449; Evid. Code, § 500.) Evidence may come from within or outside the record of conviction, or from undisputed facts acknowledged by the parties. (Perkins, supra, at p. 140 [any probative evidence]; Sherow, supra, at p. 880 [petitioning defendant's testimony].)
The People contend the trial court erred in granting defendant's petition because defendant "failed to present any evidence regarding the underlying facts of his section 459 conviction" and merely "filed the stock resentencing form, checking the box for 'Defendant believes the value of the check or property does not exceed $950.' " In effect, the People contend the trial court was not permitted to reach the merits of defendant's petition without first finding defendant had made a prima facie case of entitlement to resentencing. The People rely on this court's opinion in Perkins, supra, 244 Cal.App.4th 129 to support their position.
A trial court need not consider the merits of a Proposition 47 petition unless the petitioner has made a prima facie showing of eligibility. (Sherow, supra, 239 Cal.App.4th 875; Perkins, supra, 244 Cal.App.4th 129.) In Perkins, this court held that to satisfy this initial burden, the petitioner must attach to his petition "some evidence" of eligibility. (Perkins, supra, at p. 137.) Here, defendant filed a form petition for resentencing alleging the amount of loss did not exceed $950. The form petition included a statement under penalty of perjury that appears to be signed by defendant's attorney. The People responded by requesting a hearing to be set to determine "value [and] circumstances." The People did not allege that defendant failed to meet his burden. The trial court thereafter set a hearing on defendant's petition. At that hearing, the prosecutor recited the factual circumstances of the offense and acknowledged the value of the stolen property alleged in the burglary offense was less than $950. Defense counsel noted that the burglary offense involved the Sports Chalet only as the Sports Chalet address was specifically addressed in the complaint and that the value of the stolen property from the Sports Chalet involved two pairs of Vans at $40 each and one pair of Air Jordan's at $99.99.
It is a basic, well-settled principle that a party's duty to set out a prima facie case may be discharged by the opposing party's concession. As our high court long ago explained, "when the [party who carries the burden] has proved or the [opposing party] has conceded" an element of a claim "a prima facie case . . . is thereby made, which discharges the burden of proof." (Graham v. Larimer (1890) 83 Cal. 173, 177-178, italics added; accord, Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123 [the opposing party's "concession established the facts necessary to support a prima facie claim of privilege . . . and passed the burden to [the party opposing privilege]"].) The function of pleadings is to aid the court in determining which factual issues are in dispute. (People v. Duvall (1995) 9 Cal.4th 464, 480 [habeas pleadings "fulfill [the] function of narrowing the facts and issues to those that are truly in dispute"].) "The initial screening of the petition for resentencing is similar to the initial screening of a petition for writ of habeas corpus. California Rules of Court, [r]ule 4.551(f) provides that '[a]n evidentiary hearing is required if . . . there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact.' " (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2016 rev. ed.) p. 39, at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Mar. 8, 2017].)
Moreover, the prosecutor requested and defense counsel did not object to the trial court filing the police report, which contained the value of the stolen property from the Sports Chalet. The police report shows the total value of the stolen property from the Sports Chalet as $179.99.
With proper foundation, a police report is admissible under the official records exception to the hearsay rule. (Evid. Code, § 1280.) Neither party objected to the admissibility of the police report.
The pleadings in this case, taken together, as well as concessions made by the People conveyed to the trial court there were no disputed material facts regarding defendant's eligibility. The petition declared the amount of loss did not exceed $950, and the People agreed the value of the stolen property from the Sports Chalet was less than $950. The People's concession to defendant's petition discharged the prima facie burden thereby requiring consideration of his petition on the merits. The trial court reasonably concluded the value of the stolen property did not exceed $950, as established by the parties' statements, the complaint, the People's response to defendant's petition, and the police report. Accordingly, under these circumstances, we cannot find the trial court abused its discretion by reaching the merits of defendant's petition.
B. Conspiracy to Commit Burglary
The People contend defendant's commercial burglary conviction is not eligible for reduction to misdemeanor shoplifting under Proposition 47 because he entered the Sports Chalet with the intent to commit a conspiracy. The People argue it is irrelevant that they did not allege conspiracy in the complaint. We disagree.
"Conspiracy is an inchoate crime. [Citation.] It does not require the commission of the substantive offense that is the object of the conspiracy. [Citation.] 'As an inchoate crime, conspiracy fixes the point of legal intervention at [the time of] agreement to commit a crime,' and 'thus reaches further back into preparatory conduct than attempt . . . .' [Citation.]" (People v. Swain (1996) 12 Cal.4th 593, 599-600 (Swain).)
A conspiracy is defined as " 'two or more persons conspir[ing]' '[t]o commit any crime,' together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance thereof. (Pen. Code, § 182, subd. (a)(1), 184.) 'Conspiracy is a "specific intent" crime. . . . The specific intent required divides logically into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the offense which is the object of the conspiracy. . . . To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of that offense.' [Citation.] In some instances, the object of the conspiracy 'is defined in terms of proscribed conduct.' [Citation.] . . . In other instances, it 'is defined in terms of . . . a proscribed result under specified attendant circumstances.' [Citation.]" (Swain, supra, 12 Cal.4th at p. 600, italics omitted.) Proposition 47 does not apply to convictions for conspiracy. (People v. Segura (2015) 239 Cal.App.4th 1282.) Like aiding and abetting, conspiracy is itself a theory of liability. (People v. Hajek & Vo (2014) 58 Cal.4th 1144, 1201 (Hajek & Vo), abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Allowing the People to establish ineligibility for sentence reduction based on conspiracy, after defendant pleaded guilty to burglary, with intent to commit a theft, not a conspiracy, would violate double jeopardy and fair trial principles. Double jeopardy forbids a second trial for the purpose of affording the People a second opportunity to provide evidence it failed to produce in the first proceeding. (Burks v. United States (1978) 437 U.S. 1, 11.) Section 654, subdivision (a), "provides that '[a]n acquittal or conviction and sentence under any one [provision of law] bars a prosecution for the same act or omission under any other.' In Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [], the court stated that '[w]hen, as here, the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.' " (Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 614, fn. omitted.) The People's failure to charge defendant with a conspiracy and prosecute him for that offense bars the People from post-conviction reliance on the uncharged theory of conspiracy as a basis for preventing him from benefiting from sentence reduction under Proposition 47.
Furthermore, section 459.5 does not explicitly require that the defendant must have the "sole intent" of committing larceny, as the People read it. Rather, the statutory language requires only that the defendant have the "intent to commit larceny." (§ 459.5.) The circumstance that a defendant might also have been harboring other intents, criminal or otherwise, is irrelevant.
In addition, we doubt that the facts described in the police report in this case would support a charge of burglary based on entering the store with intent to commit conspiracy. Defendant and his accomplices did not enter into the store to conspire to commit a crime; rather, the evidence suggests that defendant entered the store to complete a crime that he and his accomplices had conspired elsewhere to commit. It is possible to imagine a burglary based on intent to commit conspiracy after an entry—a pair of outlaws, breaking into a building to find a quiet space to plot their next nefarious deed, perhaps. The People have pointed to no authority discussing such a hypothetical burglary, however, and we are aware of none.
Certainly, conspiracy to commit burglary is a felony that was not reduced to a misdemeanor by Proposition 47, as the People point out. No such conviction, however, is at issue in the present case. --------
Further, in this case, there has already been a specific judicial finding that defendant's intent and objective in committing the burglary was intent to commit larceny. By staying defendant's sentence on count 2, receiving stolen property, pursuant to section 654, the trial court implicitly made the factual finding that defendant harbored the same intent and objective for both offenses. (See People v. Coleman (1989) 48 Cal.3d 112, 162 [" 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced.' "].) The idea that defendant harbored a criminal intent separate and distinct from the intent to commit receiving stolen property, a form of larceny, is not compatible with the trial court's finding, which the People did not appeal.
Additionally, the People's argument raises the obvious question, conspiracy to do what? In this case, it is indisputable that the uncharged conspiracy at issue was a conspiracy to commit larceny. The People's notion that intent to conspire to commit larceny is not itself a species of "intent to commit larceny" in the meaning of section 459.5 is unpersuasive.
Moreover, this court recently published People v. Huerta (2016) 3 Cal.App.5th 539, rejecting the People's argument on analogous facts. We agree with the analysis expressed in Huerta.
For all of the above reasons, we agree with the trial court's rejection of the People's arguments, and conclude the trial court did not err in finding defendant's felony commercial burglary conviction was eligible for reduction to a misdemeanor under Proposition 47.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.