Opinion
F071750
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY WILSON, Defendant and Appellant.
Robert L.S. Angres, 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, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. F11901400)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Robert L.S. Angres, 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, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
-ooOoo-
Appellant Michael Anthony Wilson appeals from the denial of his petition for resentencing filed pursuant to Proposition 47. Appellant contends the People failed to demonstrate he was ineligible for resentencing on his conviction for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On May 20, 2011, appellant pled guilty to one count of second degree burglary, and admitted to two prior strikes and additional sentence enhancements. With respect to the second degree burglary charge, appellant pled guilty to "unlawfully enter[ing] a commercial building, Banks and Company, with the intent to commit larceny or any felony therein." The item stolen was a welder, for which appellant was required to pay restitution in the amount of $475. Appellant received a total sentence of seven years.
On February 9, 2015, appellant filed a one-page petition requesting resentencing under Proposition 47. Attached to this petition was a legal status summary showing appellant's conviction and current incarceration and a statement of restitution showing the $475 restitution amount. No opposition was filed.
A hearing was set on appellant's petition. When the trial court initially noted the matter had been set for a contested hearing, appellant's counsel responded, "Your Honor, I am not going to proceed with a contested hearing. I'll simply argue, as I have done before that, the record of conviction doesn't specify whether it's eligible or not and submit that I believe that the prosecution bears the burden of proof." The People responded, "from our records, this is unlocked storage area, not a business open to the public for purposes of Prop 47 reduction, therefore, we would object to any reduction." The trial court then denied the petition, concluding the People's burden of proving disqualifying factors did not arise "unless and until the defense proves the burden of eligibility. They have failed to do so in this case." The court then asked appellant's counsel if he would like an evidentiary hearing. Counsel declined.
This appeal timely followed.
DISCUSSION
Appellant argues his petition satisfied his burden to demonstrate eligibility and the lack of additional evidence showing the nature of his underlying offense results in a record that is insufficient to sustain the trial court's determination. He seeks a remand for further proceedings. 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).)
"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.)
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).)
As the trial court's eligibility determination is factual in nature, we review that determination for substantial evidence. (People v. Johnson (2016) 1 Cal.App.5th 953, 960; see also People v. Hicks (2014) 231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331; Rivas-Colon, supra, 241 Cal.App.4th at p. 452, fn.4 [" '[T]he basic structure of Proposition 47 is strikingly similar to Proposition 36' and 'much of the appellate interpretation of Proposition 36 is likely relevant in the interpretation of Proposition 47.' "].) Appellant's Petition Failed to Demonstrate Initial Eligibility
As noted, appellant's initial petition was limited in the information it provided, demonstrating appellant had been convicted of second degree burglary and that the value of the property was $475. Thus, similar to Sherow, the "petition here gave virtually no information" regarding appellant's eligibility for resentencing. (Sherow, supra, 239 Cal.App.4th at p. 880.) Appellant provided no evidence suggesting his burglary conviction was eligible for resentencing, such as evidence of an intent to commit larceny sufficient to satisfy the shoplifting statute or, given the objections made by the prosecution, evidence the target was a commercial establishment open for business at the time of appellant's criminal conduct. As the burden was properly upon appellant to provide evidence of initial eligibility, the trial court properly denied appellant's petition.
The court recognizes that appellant's guilty plea indicated he entered a "commercial building." However, the record does not indicate what type of building appellant entered and therefore is silent on whether appellant's conduct qualifies under the shoplifting statute.
We do not agree this issue has been forfeited. We review the trial court's decision, not its reasoning, and the trial court's determination was both factually sufficient for review, considering its review of the record and the opportunity it gave appellant to supplement it, and entered on the exact grounds now on appeal. (See Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368.)
It is likely, given counsel's decision not to introduce evidence on appellant's behalf at the hearing and instead rely on allegations the People failed to demonstrate ineligibility, that this shortcoming was the result of confusion. Appellant filed his petition within months of the statute coming into effect and was thus without the substantial guidance that has followed from the courts concerning appropriate pleading and burden of proof issues. Appellant's petition is therefore properly denied without prejudice. (See People v. Perkins (2016) 244 Cal.App.4th 129, 139-140.)
DISPOSITION
The order is affirmed without prejudice.