Opinion
F071852
05-17-2018
THE PEOPLE, Plaintiff and Respondent, v. NATALIE NICOLE RAGSDALE, Defendant and Appellant.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Lewis A. Martinez and Ian Whitney, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12900361, F14907684)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
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Natalie Nicole Ragsdale appeals from the denial of a petition for resentencing under Penal Code section 1170.18, which is part of the Safe Neighborhoods and Schools Act (Proposition 47). Enacted by voter initiative in November 2014, Proposition 47 reduced certain drug-related and property crimes from felonies to misdemeanors. Section 1170.18 provides a mechanism by which a person with a prior felony conviction for an offense now classified as a misdemeanor under statutes added or amended by Proposition 47 can petition to have their conviction designated as a misdemeanor and be resentenced accordingly. (§ 1170.18, subds. (a), (f).)
Except where otherwise specified, all further statutory references are to the Penal Code. --------
The trial court denied Ragsdale's petition on grounds that her prior convictions, including those for second degree commercial burglary and unlawful vehicle taking/driving, were not subject to the resentencing provisions of Proposition 47. In an earlier opinion, filed July 6, 2017, we affirmed the trial court's ruling as to the latter offense and reversed with regard to the burglary convictions. The California Supreme Court accepted the case for review on a grant-and-hold basis and subsequently transferred it back with directions to reconsider our prior opinion in light of People v. Page (2017) 3 Cal.5th 1175 (Page). Having done so, we affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2012, Ragsdale entered a guilty plea in Fresno County Superior Court Case No. F12900361 (hereafter "F12900361") to four counts in a 17-count information in exchange for limited sentencing exposure and the dismissal of all remaining charges. Accordingly, she was convicted and sentenced on three counts of second degree commercial burglary (§§ 459, 460; counts 2, 4, & 6) and one count of identity theft (§ 530.5, subd. (c)(3); count 14). Ragsdale was ordered to pay restitution to commercial entities under count 2 (Winco), and counts 4 and 6 (Fresno Ag Hardware) in stipulated amounts of $143.50 and $621.45, respectively.
On October 27, 2014, Ragsdale entered a plea of no contest in Fresno County Superior Court Case No. F14907684 (hereafter "F14907684") to five counts in a 17-count information and admitted the truth of an enhancement allegation in exchange for limited sentencing exposure and dismissal of all remaining charges. She was convicted and sentenced on three counts of identity theft (§ 530.5, subd. (a), (c)(3); counts 1, 5, & 9), one count of forgery of a driver's license or identification card (§ 470a; count 12), and one count of taking or driving a vehicle without the owner's consent (Veh. Code, § 10851; count 4).
Following the enactment of Proposition 47, Ragsdale filed a petition for resentencing as to her convictions in cases F12900361 and F14907684. The single-page document alleged, in boilerplate language, that her "conviction or convictions were for offenses which would now be punishable as misdemeanors under the Safe Neighborhoods and Schools Act." On June 29, 2015, the trial court heard the petition and summarily denied it as to F14907684, finding none of the offenses came within the purview of Proposition 47. Arguments were presented concerning F12900361, during which the People noted that although the convictions on counts 2, 4, and 6 were for commercial burglary, each crime was committed by use of a counterfeit check. The trial court thereafter denied the petition as to F12900361, incorporating by reference a legal analysis in prior Fresno County Superior Court decisions wherein convictions for commercial burglaries involving identity theft (i.e., theft of merchandise by use of stolen checks) had been deemed ineligible for resentencing under section 1170.18.
Ragsdale filed a timely notice of appeal as to the "decision regarding Prop. 47 eligibility." Her briefs clarify that she is not challenging the trial court's ruling with respect to the identity theft convictions. Since her arguments focus exclusively on counts 2, 4, and 6 in F12900361 and count 4 in F14907684, we presume all other aspects of the trial court's orders are undisputed and correct. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [arguments not raised in opening brief are waived]; People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7 [presumption of correctness].)
DISCUSSION
Standard of Review
It is the petitioning defendant's burden to make a prima facie showing of eligibility under section 1170.18, i.e., to demonstrate the conduct underlying a prior felony conviction would have constituted a misdemeanor had Proposition 47 been in effect at the time of the offense. (People v. Fernandez (2017) 11 Cal.App.5th 926, 932 (Fernandez).) The People may contest the defendant's eligibility by rebutting the proffered evidence or establishing the existence of a disqualifying conviction. (Ibid.; see § 1170.18, subd. (i).) We review a trial court's factual findings for substantial evidence and apply the de novo standard to questions of statutory interpretation and other issues of law. (Fernandez, supra, 11 Cal.App.5th at p. 932.) F12900361
The holding in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) supports Ragsdale's position with respect to the commercial burglary convictions. Key to this issue is Proposition 47's creation of a new crime, "shoplifting," which 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)." (§ 459.5, subd. (a).) "This provision is related to the general burglary statute, which also applies to an entry with intent to commit 'larceny' or any felony. (Pen. Code, § 459.)" (Gonzales, supra, 2 Cal.5th at p. 862.) Under the new law, the act of obtaining property from a commercial establishment by use of a stolen or fraudulent check - conduct "traditionally regarded as a theft by false pretenses rather than larceny" - is now considered shoplifting so long as the property is worth $950 or less. (Ibid.)
Ragsdale, citing the stipulated amounts in the restitution order, alleges counts 2, 4, and 6 are based on conduct that would have been construed as shoplifting had Proposition 47 been in effect during the relevant time period. The Attorney General counters that (1) the offenses involved the intent to commit felony identity theft, which was not made a misdemeanor by Proposition 47, and (2) shoplifting requires intent to commit larceny, "which is distinct from the intent to commit theft by false pretenses." These arguments were squarely rejected in Gonzales:
"Section 459.5, subdivision (b) requires that any act of shoplifting 'shall be charged as shoplifting' and no one charged with shoplifting 'may also be charged with burglary or theft of the same property.' ... A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct. The statute's use of the phrase 'the same property' confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge. Thus, the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the [fraudulent use of a] check to obtain less than $950." (Gonzales, supra, 2 Cal.5th at pp. 876-877.)
In light of Gonzales, the trial court erred by concluding the commercial burglary convictions were ineligible for resentencing under Proposition 47 as a matter of law. However, we do not agree with Ragsdale's contention that the error requires reversal without remand. The trial court made no factual findings with regard to the eligibility issue, and the record is inconclusive on that point. "An ' "essential distinction" ' between trial courts and appellate courts is that ' "it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law ... ." ' [Citation.] Appellate courts do not make factual findings; we review ' "the correctness of a judgment [or order] as of the time of its rendition." ' " (People v. Contreras (2015) 237 Cal.App.4th 868, 892 (Contreras).)
Furthermore, assuming Ragsdale is eligible for relief based on the nature of her crimes, the trial court had no occasion to consider or rule upon the question of suitability. Even eligible petitioners will be denied relief if the trial court, "in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) "Again, that determination must be made in the first instance by the trial court; it is not our role to find facts, especially on an incomplete record." (Contreras, supra, 237 Cal.App.4th at p. 892.) Therefore, the matter will be remanded for further proceedings. F14907684
As noted, Ragsdale pleaded guilty to a violation of Vehicle Code section 10851. "By its terms, the statute can be violated in two ways—by taking the vehicle (theft) or by driving the stolen vehicle after the theft is complete (posttheft driving)." (People v. Calistro (2017) 12 Cal.App.5th 387, 394.) In Page, the California Supreme Court held that, "[b]y its terms, Proposition 47's new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense." (Page, supra, 3 Cal.5th at p. 1183.) Therefore, we and the trial court were incorrect in concluding Ragsdale's prior conviction was categorically ineligible for re-designation and resentencing. (Id. at p. 1180.)
"To establish eligibility for resentencing on a theory that a Vehicle Code section 10851 conviction was based on theft, a defendant must show not only that the vehicle he or she was convicted of taking or driving was worth $950 or less (§ 490.2, subd. (a)), but also that the conviction was based on theft of the vehicle rather than on posttheft driving [citation] or on a taking without the intent to permanently deprive the owner of possession." (Page, supra, 3 Cal.5th at p. 1188.) In supplemental briefing, Ragsdale admits she failed to present evidence regarding the nature of her conviction under Vehicle Code section 10851, including the value of the vehicle, and thus did not carry her burden below. Therefore, we affirm the trial court's denial of relief with regard to F14907684 but do so without prejudice to Ragsdale's ability to file a new petition. (Page, supra, 3 Cal.5th at pp. 1180, 1189.) Such a petition should allege, and provide evidence of, the facts necessary to show eligibility for relief under section 1170.18. (Id. at p. 1189.)
DISPOSITION
With regard to case F14907684, the order denying appellant's petition for resentencing is affirmed without prejudice to consideration of a new petition that provides evidence of her eligibility for relief. With regard to case F12900361, the order denying appellant's petition for resentencing is affirmed as to count 14, reversed as to counts 2, 4, and 6, and remanded for further proceedings in accordance with section 1170.18 and consistent with this opinion.