Opinion
F072052
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JAMES WILKINSON, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09900218, F14904252 & F14904795)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Detjen, J. and Peña, J.
-ooOoo-
Appellant Michael James Wilkinson appeals from the denial of his requests for resentencing or redesignation of his felony convictions pursuant to Proposition 47. Appellant contends he was eligible for resentencing or redesignation on four prior convictions, across three cases, for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). For the reasons set forth below, we affirm in part and reverse in part.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant has several prior felony convictions which he believes should be reduced to misdemeanors pursuant to Proposition 47. Each of the four contested convictions in this appeal is for second degree burglary.
In March 2009, in Fresno Superior Court case No. F09900218 (the 218 case) appellant pled nolo contendere to two charged offenses, one for second degree burglary (§§ 459, 460, subd. (b)) and one for forgery (§ 470, subd. (d)). In exchange, 18 other counts and certain charged enhancements were dismissed. Appellant was sentenced to a term of one year and four months on the second degree burglary charge, which was to be served concurrent to a parole violation.
In October 2014, appellant pled nolo contendere to additional charges in two pending cases. In Fresno Superior Court case No. F14904252 (the 252 case), appellant pled nolo contendere to two counts of second degree burglary (§§ 459, 460, subd. (b)) and two counts of identity theft (§ 530.5, subds. (a), (c)(3)). In exchange, seven additional counts were dismissed. Appellant was sentenced to a term of three years on the lead charge of second degree burglary. He received a concurrent two-year sentence for the remaining burglary charge. An additional one-year term was added for appellant's prior conviction in the 218 case.
In Fresno Superior Court case No. F14904795 (the 795 case), appellant pled nolo contendere to one count of second degree burglary (§§ 459, 460, subd. (b)) and one count of identity theft (§ 530.5, subd. (a)). In exchange a forgery charge was dismissed. Appellant received a sentence of two years for the second degree burglary charge, which was to run concurrently with appellant's sentence in the 252 case.
Following enactment of Proposition 47, appellant petitioned to have his prior convictions in the 252 and 795 cases reduced to misdemeanors. The petition consisted of a single-page request for review. However, appellant, represented by a public defender, filed virtually identical briefs in both cases arguing, among other things, that the prosecution bore the burden of proof on eligibility, an identity theft conviction did not preclude resentencing, and that appellant's petitions should not be decided prior to a resolution of a related request to reduce appellant's conviction in the 218 case to a misdemeanor. Appellant contended the record did not prove appellant was ineligible for resentencing.
Appellant also filed a brief in the 252 case, asking the court to strike the prison prior arising from the 218 case conviction and redesignate the underlying conviction as a misdemeanor. Finally, in the 218 case, appellant filed a brief supporting his request for redesignation in that case. In that brief, appellant alleged he was entitled to resentencing because he entered a building with the intent to commit forgery, which qualifies as larceny and thus satisfies the definition of shoplifting added by Proposition 47, and could demonstrate that the forged checks he cashed ranged in value from $804 to $135. Aside from this offer of proof, no additional facts regarding any of the contested convictions were submitted to the trial court.
The record on appeal does not include the probation reports for any of the three pending cases. There is no indication in the record why these have not been provided. --------
The trial court denied appellant's requests in all three cases. At the hearing on this matter, the court explained that it had previously decided, in two other cases, that the petitioner bore the burden of proof with respect to demonstrating eligibility for resentencing. The court then asked counsel for appellant whether he wished to have an evidentiary hearing to satisfy that burden. Counsel responded, "No." With respect to the 218 case, the court found the available facts showed appellant "entered with the intent to commit forgery," which the court concluded did not constitute theft, and denied the request. With respect to the 252 and 795 cases, the court noted "the defense has presented no defense that would demonstrate the crimes in question qualify for a reduction."
In all three matters, a timely appeal followed. We resolve all three cases together.
DISCUSSION
Appellant argues on appeal that the trial court erred by failing to recognize that entering a store with the intent to fraudulently obtain goods, or commit identity theft, qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47 because the conduct is equivalent to theft by false pretenses. Appellant further argues the failure to recognize appellant's convictions were eligible for relief requires a remand for resentencing or further proceedings regarding the value of the goods involved. Standard of Review and Applicable Law
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "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." ' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).)
With respect to completed sentences, "[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).) "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
"Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor '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).) '[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. (§ 459.5.)' " (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.) Proposition 47 also modified the crime of forgery, making forgery of certain items, such as checks, valued at less than $950 a misdemeanor unless a concurrent conviction for identity theft exists. (§ 473, subd. (b).)
The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of introducing facts sufficient to demonstrate eligibility. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880 (Sherow).)
The court's review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.) Factual findings of the trial court are reviewed "for substantial evidence and the application of those facts to the statute de novo." (People v. Johnson (2016) 1 Cal.App.5th 953, 960 (Johnson).) The record is viewed in the light most favorable to the trial court's ruling with a presumption that the order was correct. (Ibid.) Theft by False Pretenses Does Not Qualify as Larceny
Appellant's principal argument on appeal is that various forms of theft by false pretenses qualifies as shoplifting. This court recently analyzed the meaning of the shoplifting statute and found that larceny, as used in that statute, should be interpreted according to its common law definition. (People v. Martin (Dec. 12, 2016, F071654) ___ Cal.App.5th ___, ___ [2016 Cal.App. LEXIS 1077, *25].) As such, to demonstrate eligibility, appellant must point to facts showing an intent to commit a trespassory taking, among other elements. (Ibid.) As we detailed in Martin, intending to commit theft by false pretenses does not qualify as larceny under this definition. (Id. at pp. ___-___ [id. at pp. *25-*26].) On the record before us, appellant's second degree burglary convictions do not, therefore, qualify for resentencing under the shoplifting statute.
However, because appellant's application arose before substantial guidance had been given by the courts and there is a reasonable probability that appellant may not have understood the burden imposed upon him, it is proper to ensure appellant's application is denied without prejudice to consideration of a subsequent petition which demonstrates appellant's eligibility. (See Johnson, supra, 1 Cal.App.5th at pp. 970-971.) A Remand is Appropriate in the 218 Case
With respect to the 252 and 795 cases, appellant provided no evidence demonstrating his eligibility for resentencing and affirmatively rejected an opportunity to do so. As appellant's crimes do not qualify for resentencing absent additional facts demonstrating the value of the property and that the underlying conduct qualified as larceny, the trial court properly denied appellant's petition. (See Sherow, supra, 239 Cal.App.4th at pp. 879-880.)
With respect to the 218 case, however, appellant provided an offer of proof showing the value of the check forged in appellant's case was less than $950 and claiming appellant's intent upon entering the store was to cash a forged check. The trial court appears to have accepted these factual contentions, noting "the facts, according to the petitioner's last briefing, are that he entered with the intent to commit forgery." The court denied appellant's application, however, because "[f]orgery does not constitute theft." While the trial court was correct that appellant's crime did not qualify for redesignation under the shoplifting statute, it did not consider whether appellant's crime could qualify under any other analysis.
As noted, Proposition 47 modified the crime of forgery such that any forgery of a check worth less than $950 is a misdemeanor absent additional convictions for identity theft. (§ 473, subd. (b).) To commit a burglary, one must enter a designated building with the "intent to commit grand or petit larceny or any felony." (§ 459.) Because appellant's intent under the facts offered was to commit a forgery of less than $950, appellant has demonstrated a potential eligibility for relief as one "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." (§ 1170.18, subd. (f).) Absent evidence of a different intent, appellant offered evidence suggesting he did not have the intent to commit "grand or petit larceny or any felony." While the People may be able to demonstrate appellant's conviction would remain a felony under a theory of intent to commit theft, no opportunity was provided to make such a showing and no additional facts were accepted by the trial court. (See, e.g., People v. Manning (2014) 226 Cal.App.4th 1133, 1144 [under Proposition 36, demonstration of initial eligibility required remand so prosecutor could be given an opportunity to demonstrate disqualifying conduct].) A remand is therefore appropriate to determine whether appellant is eligible for redesignation in the 218 case.
DISPOSITION
The order is affirmed without prejudice with regard to cases Nos. F14904252 and F14904795. The order is reversed and remanded for further proceedings consistent with this opinion with regard to case No. F09900218.