Opinion
E066885
03-03-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGELA KAY VANDIVER, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1400254) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Angela Kay Vandiver appeals from an order denying her petition to reduce her burglary (Pen. Code, § 459) conviction to a misdemeanor under Penal Code section 1170.18. Based on our independent review of the record, we find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated. --------
II
FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 2013 and January 2, 2014, defendant entered an apartment complex with the intent to commit theft and a felony.
On January 6, 2014, a felony complaint was filed charging defendant with two counts of burglary (§ 459; counts 1 and 2). In pertinent part, count 1 alleged that on January 2, 2014, defendant "wilfully and unlawfully enter[ed] a certain building located at OAK TREE APARTMENTS . . . with intent to commit theft and a felony." The complaint further alleged that defendant had sustained three prior prison terms (§ 667.5, subd. (b)).
On January 29, 2014, pursuant to a negotiated plea agreement, defendant pled guilty to count 1 and waived her right to a presentence report. In exchange, the remaining allegations were dismissed and defendant was sentenced to the agreed upon term of 16 months in county jail with credit for time served.
On November 4, 2014, voters enacted Proposition 47, entitled "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47). It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person currently serving a felony sentence or a person who has completed his or her sentence, whether by trial or plea, for an offense that is now a misdemeanor under Proposition 47, may petition before the trial court that entered the judgment of conviction in his or her case to have the felony conviction designated as a misdemeanor. (§ 1170.18, subds. (a) & (f).)
On August 2, 2016, defendant filed a petition to reduce her burglary conviction to a misdemeanor pursuant to section 1170.18. The People filed a response, noting defendant was ineligible for relief because "Per complaint 'Oak Tree Apartments' not a commercial establishment. Per report [defendant] broke into mailboxes at the complex. Not a commercial establishment open during business hours."
On August 29, 2016, the trial court denied defendant's petition, finding defendant had not shown any evidence that she is eligible, noting "complaint says apartment complex—not a commercial establishment."
On September 19, 2016, defendant filed a notice of appeal and a request for a certificate of probable cause. Defendant's request for a certificate of probable cause was denied.
III
DISCUSSION
After defendant appealed, upon her request, this court appointed counsel to represent her. Upon examination of the record, counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts and potential arguable issues, and requesting this court to conduct an independent review of the record.
To aid our review, appellate counsel has summarily identified two possible appellate issues: whether defendant's petition under Proposition 47 was fatally defective because she failed to make a prima facie case for relief and whether an apartment complex and the mailboxes on the premises fall within the meaning of a " 'commercial establishment' " as that term is used in section 459.5, subdivision (a).
We offered defendant an opportunity to file a personal supplemental brief, and she has not done so.
An appellate court conducts a review of the entire record to determine whether the record reveals any issues which, if resolved favorably to defendant, would result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441- 442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra, 386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)
As previously noted, Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, are: shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2); and receiving stolen property where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).)
Section 459.5 defines "shoplifting" as "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).) An apartment complex is not a commercial establishment as defined in section 459.5. Therefore, the trial court properly denied defendant's petition.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the entire record for potential error and find no arguable error that would result in a disposition more favorable to defendant.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.