Opinion
H044571
11-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ERIC PESTI, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. C1371827, C1495059)
Defendant Joseph Eric Pesti appeals from his resentencing under Proposition 47. After granting his petition for resentencing, the trial court reduced two of his convictions for second degree burglary to misdemeanor burglaries. Pesti now contends the trial court erroneously reduced his convictions to misdemeanor burglaries because Proposition 47 requires the court to reduce such convictions to shoplifting. The Attorney General contends Pesti forfeited this claim by failing to object below.
We conclude Pesti did not forfeit his claim because the trial court lacked the authority to reduce the convictions to misdemeanor burglaries under Proposition 47; the trial court only had the authority to reduce the convictions to shoplifting. We will reverse the judgment and remand to the trial court to designate the second-degree burglary convictions as convictions for shoplifting.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pesti was also charged with other offenses not at issue in this appeal. The facts of those offenses are set forth in our prior opinion in this matter. (People v. Pesti (Nov. 8, 2016, H042613) [nonpub. opn.].) We granted Pesti's request for judicial notice of the record in that matter.
The parties stipulated to the following facts:
On July 22, 2013, Pesti entered the Mission Lanes Bowling Alley during business hours and stole an eight-inch black tablet; an iPod; a laptop computer; a Target gift card; and a Kindle, with a total value of $750.
On August 16, 2013, Pesti entered Golfland Video Arcade during business hours and attempted to steal an Apple iPod Mini with a value less than $950.
B. Procedural Background
In 2014, the prosecution charged Pesti with three counts of second degree burglary, among other things. (Pen. Code, §§ 459, 460, subd. (b).) On February 10, 2014, Pesti pleaded no contest to two counts of felony second degree burglary in addition to other charges. In 2015, Pesti petitioned for resentencing under Proposition 47 (section 1170.18), but the trial court denied the petition with respect to the burglaries on the ground they were ineligible for resentencing. On appeal, we reversed the denial of the petition and remanded to the trial court for reconsideration of a subsequent petition.
Subsequent undesignated statutory references are to the Penal Code. --------
In 2017, Pesti filed a new petition for resentencing in the trial court. The parties stipulated to the facts set forth above in Section I.A. The trial court granted the petition as to both counts and reduced them from felony second degree burglary to misdemeanor second degree burglary. Pesti lodged no objections. The court then resentenced Pesti to a total term of five years in prison based on other convictions and priors. As to the burglary convictions, the court imposed two six-month jail terms concurrent with the prison sentence.
II. DISCUSSION
Defendant contends the trial court erred by resentencing his convictions to misdemeanor burglaries rather than shoplifting. The Attorney General contends Pesti forfeited this claim by failing to object below. The Attorney General does not dispute the substance of Pesti's argument. We conclude Pesti did not forfeit his claim because the trial court lacked the authority to resentence him to misdemeanor burglaries.
A. Background
In 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Act), reducing certain drug- and theft-related offenses to misdemeanors. Among other things, the Act added section 459.5, making the offense of "shoplifting" a misdemeanor: "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 fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary." (§ 459.5, subd. a).) Section 459.5 mandates that shoplifting shall be punished as a misdemeanor except for persons having certain prior convictions not at issue here: "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." (§ 459.5, subd. (b).)
Proposition 47 also created a resentencing scheme for felony convictions for specified offenses made misdemeanors by the Act. (§ 1170.18, subds. (a) & (f).) Under subdivision (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." (§ 1170.18, subd. (f).)
B. The Trial Court Lacked Authority to Designate the Offenses as Misdemeanor Burglaries
The Attorney General does not dispute that the stipulated facts of Pesti's conduct constitute shoplifting offenses as a matter of law. The Attorney General's sole argument is that Pesti failed to object to having the convictions designated as misdemeanor burglaries. Pesti contends the plain language of Proposition 47 required the trial court to designate the offenses as shoplifting. He argues that the failure to object did not forfeit the claim because the trial court had no authority to designate the offenses as misdemeanor burglaries.
Pesti's failure to object did not forfeit his claim because the trial court's order constituted an unauthorized sentence. "[T]he 'unauthorized sentence' concept constitutes a narrow exception to the general requirement that only those claims properly raised and preserved by the parties are reviewable on appeal." (People v. Scott (1994) 9 Cal.4th 331, 354.) "Although the cases are varied, a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid.) The parties stipulated to the facts of the offenses below, and the question presented on appeal is purely a matter of law. We conclude we may address the substance of Pesti's claim, the merits of which the Attorney General does not dispute.
Section 1170.18 mandates that if a Proposition 47 petition satisfies the eligibility criteria for resentencing, then "the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459 .5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act . . . ." (§ 1170.18, subd. (b), italics added.) This mandate incorporates the statute defining shoplifting (section 459.5) but not misdemeanor second degree burglary (section 460, subdivision (b)). Proposition 47 left intact the offense of second degree burglary, which is punishable as either a felony or a misdemeanor—a so-called "wobbler." (§ 461, subd. (b).) Furthermore, the statute defining shoplifting mandates that any conduct meeting the definition of that offense "shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subd. (b).) The clear import of Proposition 47 is that Pesti's offenses should have been designated as shoplifting, not as misdemeanor burglaries. (See People v. Bunyard (2017) 9 Cal.App.5th 1237, 1245 [defendant's conduct underlying his second degree burglary conviction would have rendered him guilty of misdemeanor shoplifting].)
For the reasons above, we will reverse the judgment and remand to the trial court with directions to designate the relevant offenses as convictions for shoplifting.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court. On remand, the trial court shall designate Pesti's convictions for second degree burglary on February 10, 2014 as convictions for shoplifting under Penal Code section 459.5.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.