Filed 4/18/17 P. v. Bell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

HOWARD ALLEN BELL,

Defendant and Appellant.


E066644

(Super.Ct.No. FWV 17226)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Howard Allen Bell, appeals from an order summarily denying, without a hearing, his petition to redesignate his April 1999 conviction for second degree burglary (Pen. Code, § 459) to misdemeanor shoplifting (§ 459.5). The order states that defendant did not establish that the value of the property taken during the burglary was $950 or less, as section 459.5 requires.
On this appeal, defendant claims his petition should have been granted even though he adduced no evidence in support of his petition in the superior court. He claims the court should have granted the petition based on documents in the court file, namely, hearsay statements in a sheriff’s report which indicated that the value of the property taken during the burglary was $235, and that the burglary otherwise met the definition of misdemeanor shoplifting. (§ 459.5.) Defendant also points out that the victim restitution order for $825.35 showed that the value of the property taken did not exceed $950.
The People claim the petition was properly denied for two reasons: (1) defendant did not meet his initial burden of making a prima facie evidentiary showing that the value of the property was $950 or less; and (2) the burglary conviction does not meet the statutory definition of misdemeanor shoplifting regardless of the value of the property taken, because the burglary was not based on defendant’s entry into a “commercial establishment,” as section 459.5 requires.
In support of their claim that the burglary conviction was not based on defendant’s entry into a commercial establishment, the People rely on hearsay statements in the sheriff’s report which indicate that the burglary involved defendant’s entry into the employee-only receiving area of a pet supply store, which was not open to the public, and where defendant took a cellular phone, credit cards, identification cards, and money from a store employee’s purse. Such burglaries, the People argue, do not involve the entry into a commercial establishment, as section 459.5 requires.
Although, defendant does not dispute any of the statements in the sheriff’s report, and although the People do not dispute the particular statements in the sheriff’s report indicating that the burglary occurred in the employee-only receiving area of the pet supply store, there is no showing that the sheriff’s report was presented to the superior court in connection with defendant’s petition, or that either party admitted the truth of any of the statements in the sheriff’s report in the superior court. Furthermore, the superior court did not determine, in the first instance, whether the burglary was based on defendant’s entry into a commercial establishment, within the meaning of section 459.5. For these reasons, the People’s claim that the burglary did not involve defendant’s entry into a commercial establishment is not properly before this court.
As we explain, we conclude that defendant’s petition was properly denied because defendant did not adduce any evidence that the value of the items taken or intended to be taken during the burglary was $950 or less, or that that the burglary otherwise met the definition of misdemeanor shoplifting under section 459.5. We affirm the denial of the petition without prejudice to defendant’s filing and the superior court’s consideration of a new, factually supported petition.
II. BACKGROUND
A. Applicable Provisions of Proposition 47
In the November 4, 2014 election, California voters approved an initiative statute, Proposition 47, entitled “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
As pertinent, Proposition 47 added a new sentencing provision to the Penal Code: section 1170.18. Under section 1170.18, subdivision (f), a person who has completed his or her sentence for a felony conviction that would now be a misdemeanor had Proposition 47 been in effect when the offense was committed may petition the court that entered the judgment of conviction to designate the conviction as a misdemeanor. (People v. Rivera, supra, 233 Cal.App.4th at pp. 1091, 1093.) If the petition satisfies the criteria of section 1170.18, subdivision (f), the court “shall” designate the felony offense as a misdemeanor. (§ 1170.18, subd. (g).) And, unless the applicant or petitioner requests a hearing on the petition, no hearing is necessary to grant or deny an application or petition filed under section 1170.18, subsection (f). (§ 1170.18, subd. (h).)
Proposition 47 also added section 459.5 to the Penal Code. Section 459.5 “created a new crime of ‘shoplifting,’ a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary.” (In re J.L. (2015) 242 Cal.App.4th 1108, 1112.) Section 459.5 provides: “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).) Shoplifting “shall be punished as a misdemeanor,” unless the person who committed the offense has one or more disqualifying prior convictions. (Ibid.)
Under case law interpreting section 1170.18, the applicant or petitioner has the initial burden of establishing “the facts” upon which his or her eligibility for Proposition 47 relief is based. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.) That is, the petitioner has the initial burden of making a prima facie evidentiary showing of his or her entitlement to the Proposition 47 relief the petitioner seeks.
Thus, a petition to designate a felony second degree burglary conviction (§ 459) as a misdemeanor shoplifting conviction (§ 459.5) should both describe the property taken or intended to be taken during the burglary, and should “attach some evidence” showing that the value of the property was $950 or less. (People v. Sherow, supra, 239 Cal.App.4th at p. 880; People v. Perkins (2016) 244 Cal.App.4th 129, 140.) The evidence adduced in support of the petition is not limited to the record of the underlying felony conviction. (People v. Johnson (2016) 1 Cal.App.5th 953, 962-963.)
B. Procedural Background
On January 20, 1999, a felony complaint was filed charging defendant with one count of second degree commercial burglary (§ 459; count 1) and one count of petty theft with a prior conviction (§§ 484, subd. (a), 666; count 2), and further alleging defendant had one prior strike conviction (§ 667, subds. (b)-(i)). In count 1, the complaint alleged that, on November 23, 1998, defendant “did unlawfully enter a commercial building . . . with the intent to commit larceny and any felony.”
On April 22, 1999, pursuant to a plea agreement, defendant pled guilty to the second degree burglary charge and admitted the prior strike allegation, and the People agreed to dismiss count 2. In entering the plea, the parties agreed that “the police reports” contained a factual basis for the guilty plea to count 1. The court approved the stipulation and found a factual basis for the plea. On June 9, 1999, the court sentenced defendant to four years in prison: the middle term of two years, doubled to four years based on the admitted prior strike conviction. At sentencing, defendant was ordered to pay restitution to the victim, totaling $825.35.
On June 23, 2016, after California voters enacted Proposition 47 on November 4, 2014, defendant filed a petition for resentencing, seeking to designate his April 1999 second degree burglary conviction a misdemeanor. The petition was filed on San Bernardino County Superior Court form “# 13-20067-360 Revised 12/11/14.”
The form petition did not indicate that defendant was required to adduce evidence in support of his petition or make an initial prima facie evidentiary showing that he was entitled to have his burglary conviction designated a misdemeanor. Nor did the form petition give defendant the option of requesting a hearing on the petition.
Instead, the form petition stated, in preprinted letters, that: “A hearing on this Petition for Resentencing will be held as follows.” The next line of the petition includes blank spaces after the words “Date:,” “Time:,” and “Dept:,” ostensibly for the court to insert the date, time, and place of a scheduled hearing on the petition. The court did not schedule a hearing on the petition.
On July 8, 2016, the People filed a response to the petition, stating defendant was not entitled to the relief he was requesting because “Defendant has not met his burden in [sic] establishing value of property taken was $950 or less.” On July 12, 2016, the court issued an order summarily denying the petition without a hearing. The order states: “Denied—needs to establish value of property stolen.” Defendant timely appealed from the order denying his petition.
C. The Sheriff’s Report
A report by the San Bernardino County Sheriff’s Department (the sheriff’s report) became part of the court file after the parties stipulated that “the police report”—ostensibly meaning the sheriff’s report—contained a factual basis for the plea. Hearsay statements in the sheriff’s report indicate the following: Around 2:00 p.m., on November 23, 1998, a pet supply store employee in Rancho Cucamonga encountered a man later identified as defendant in the “employee only” receiving area of the store. Defendant appeared to be concealing items under his arms. When asked whether he needed help, defendant said he needed to use the restroom.
After guiding defendant toward the restroom, the store employee returned to the receiving area and found the victim’s purse on the floor. Missing from the victim’s purse were the victim’s cell phone and wallet, containing the victim’s checkbook, driver’s license, social security card, three $5 bills, and several credit cards. An “evidence/property report” attached to the sheriff’s report states that the value of the stolen cellular phone was $200, the value of the wallet was $20, and stolen currency was $15, for a total of $235. No values were listed for the stolen checks, credit cards, driver’s license, or social security card. The victim, who worked in the receiving area of the store, had left her purse next to her desk, covered by a sweatshirt. The victim observed defendant leaving the store before she became aware that items were missing from her purse.
At the time of the burglary, defendant was on active parole for theft and had an extensive criminal history. Defendant’s identity was discovered after a sheriff’s department investigator called phone numbers that had been called from the victim’s cellular phone on November 23, 1998. Thereafter, the victim and the other store employee who worked in the receiving area separately identified defendant from a six-person photographic lineup.
On November 23 and 24, 1998, seven of the victim’s stolen checks were fraudulently passed at various locations in Southern California. The amounts of the fraudulently-passed checks totaled $3,529.46. Defendant was not charged with identity theft or with forging the checks, however, apparently because the checks were fraudulently passed by a female impersonating the female victim, and there was no evidence linking defendant to the fraudulent check transactions.
III. DISCUSSION
The Petition Was Properly Denied Because Defendant Did Not Meet His Initial Burden of Making a Prima Facie Evidentiary Showing That His Burglary Conviction Met the Requirements of the New Misdemeanor Shoplifting Statute, Section 459.5
Defendant claims the court erroneously denied his petition because “[t]he superior court records in this action”—namely, the sheriff’s report describing the circumstances of the burglary and the values of the items taken from the victim’s purse—“establish all of the elements of misdemeanor shoplifting.” We disagree.
As this court has previously observed, section 1170.18 is silent on who has the burden of demonstrating that a felony conviction constitutes a misdemeanor under Proposition 47. (People v. Perkins, supra, 244 Cal.App.4th at p. 136.) At the time defendant filed his Proposition 47 petition on June 23, 2016, however, several appellate court decisions had interpreted and applied section 1170.18 as requiring the petitioner to make an initial prima facie evidentiary showing that the petitioner’s felony conviction in question constituted a misdemeanor under Proposition 47. (E.g., People v. Sherow, supra, 239 Cal.App.4th at pp. 878-880 [issued Aug. 11, 2005]; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450 [issued Oct. 16, 2015]; People v. Perkins, supra, at pp. 136-137 [issued Jan. 25, 2016]; People v. Bush (2016) 245 Cal.App.4th 992, 1007-1008 [issued Mar. 22, 2016].)
Defendant adduced no evidence, either with his petition or subsequently in the superior court, showing that his April 1999 burglary conviction qualified as misdemeanor shoplifting under section 459.5. Specifically, defendant adduced no evidence that the value of property taken during the burglary was $950 or less, or that the burglary involved defendant’s entry into a commercial establishment during normal business hours with the intent to commit larceny. (§ 459.5.) Nor did defendant request a hearing on his petition so that he could present his own testimony or other evidence in support of his petition. (§ 1170.18, subd. (h).) Thus, defendant did not meet his initial burden of making a prima facie evidentiary showing that his burglary conviction qualified as misdemeanor shoplifting under section 459.5. (People v. Sherow, supra, 239 Cal.App.4th at pp. 878-880.)
Nonetheless, defendant claims the court erroneously denied his petition because the court’s “own records” showed his burglary conviction met the new statutory definition of misdemeanor shoplifting. (§ 459.5.) He argues this appeal “would . . . have been obviated if only the prosecutor or if only the court examined the court’s own records that were made at the time of the plea and sentencing . . . to see if the value of the stolen property involved in the commercial burglary could be ascertained.” He claims the sheriff’s report shows that the value of the property taken was around $235, and that the court’s victim restitution order of $825.35, which is reflected in the court’s sentencing minute order and in the original and amended abstracts of judgment, shows that the value of the property taken was below the statutory limit of $950 or less. (§ 459.5.)
Contrary to defendant’s argument, the court did not have an obligation to review the court file for any evidence supporting the petition—including the sheriff’s report. Furthermore, all of the statements in the sheriff’s report concerning the value of the property taken and the other circumstances in which the burglary occurred were hearsay. (Evid. Code, § 1200.) Likewise, the People were under no obligation to review the court file or to admit the truth of the hearsay statements in the sheriff’s report.
As defendant’s counsel on appeal points out, however, defendant filed his petition in propria persona, apparently without the benefit of counsel to advise and assist him. Furthermore, the form petition did not indicate that defendant had the initial burden of making a prima facie evidentiary showing that his burglary conviction met the statutory definition of misdemeanor shoplifting. (§ 459.5.) Nor did the form petition include a space or an attachment form for defendant to make a declaration under penalty of perjury describing the circumstances of the burglary, including the value of the property taken. The form petition also did not allow defendant to request a hearing on his petition by, for example, including a box to check to request a hearing. (§ 1170.18, subd. (h).)
For all of these reasons, and because the record on appeal indicates that defendant may be able to make a prima facie evidentiary showing that his burglary conviction meets the statutory definition of misdemeanor shoplifting (§ 459.5), we affirm the denial of the petition without prejudice to defendant’s filing and the court’s consideration of a new, factually supported petition (People v. Sherow, supra, 239 Cal.App.4th at p. 881).
IV. DISPOSITION
The order denying the petition is affirmed without prejudice to defendant’s filing and the superior court’s subsequent consideration of a new, factually supported petition showing that defendant’s April 1999 burglary conviction met the requirements of the new misdemeanor shoplifting statute, section 459.5.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

MILLER
J.