Filed 5/17/17 P. v. Soto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE ISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ISRAEL SOTO,

Defendant and Appellant.
D070359



(Super. Ct. No. SCD223741)

APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
In August 2010, Israel Soto pleaded guilty to one count of commercial burglary (Pen. Code, § 459), and five related such counts were dismissed. He was sentenced to local custody and probation, which expired in 2013.
In 2016, Soto filed a petition and motion for resentencing of the commercial burglary offense under Proposition 47 (§ 1170.18, Safe Neighborhoods and Schools Act [the Act]). The trial court denied the requests, noting that since the record showed Soto had cashed $5,300 in checks, and the restitution previously ordered was $2,883.50, Soto had not established eligibility for redesignation of the offense as a misdemeanor.
Soto appeals, contending (1) his conviction could properly be reclassified under section 459.5, defining the crime of shoplifting, (2) the court erred in relying on the aggregate loss from all the counts, including those dismissed, as exceeding the $950 limit for relief under the new law; and (3) because of the cursory nature of the People's opposition to his petition at the trial level, they should now be judicially estopped from contending the trial court's ruling was correct for any reason other than the issue of aggregation.
While this appeal was pending, our Supreme Court issued its opinion in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) There the court interpreted the reach of section 459.5, in the context of offenses previously charged as commercial burglaries, for which redesignations as misdemeanors were being sought. The holding in Gonzales is controlling in this case, and establishes Soto may be able to show eligibility for redesignation. However, the trial court was justified in denying relief on the current record. We affirm the order, without prejudice to Soto pursuing a new petition with proper proof supporting his eligibility for redesignation.
STATEMENT OF FACTS
This appeal arises from a guilty plea and subsequent motion. The operative facts that relate to the petition are mainly undisputed. On April 8, 2009, Soto passed a check from his codefendant's account with knowledge that insufficient funds were available (NSF; the codefendant is not involved in this appeal). Both were charged with commercial burglary in count 1 of the original complaint. It was alleged that they passed other NSF checks between April 9 and 11, 2009, from one of her banks in the amount of $1,300, and from the other for a total of $4,000.
On January 4, 2010, the court accepted Soto's guilty plea to count 1, for which the factual basis was that he entered a building with the intent to commit a theft. The five related counts, also involving allegations about a third bank where the checks were cashed, were dismissed. The record, including the probation report, does not currently contain any further itemization of the monetary losses incurred by the respective banks on the respective counts alleged. It merely states Soto cashed the checks at different branches of U.S. Bank.
The prosecutor did not oppose the imposition of local time, and sentencing took place on March 4, 2010. Soto did not object to the probation officer's recommended $2,883.50 restitution amount, which was imposed. In 2013, Soto completed his sentence of local custody and probation.
Acting in propria persona a few years later, Soto brought a petition under the Act to have the count 1 offense reduced to a misdemeanor. (§ 1170.18., subd. (f).) He obtained a hearing date and filed points and authorities seeking various forms of relief, including reduction of the degree of the conviction to a misdemeanor (§ 17, subd. (b)).
In opposition to the petition, the prosecutor merely checked a box on the form indicating that Soto was not entitled to the relief requested under the Act.
In ruling on the petition, the court's denial order stated Soto had not established he was eligible, because the record showed he had cashed $5,300 in checks, and the restitution previously ordered was $2,883.50. That amount arguably exceeded the $950 limit for relief under the new law.
In his notice of appeal of the order denying relief under the Act, Soto represented that he had cashed a check of $1,000 in 2010. On appeal, his counsel has clarified that this is an inaccurate statement and his current request is instead based on the April 8, 2009 conviction.
While the appeal was pending, Soto requested that this court take judicial notice of a police report that was referred to in the probation officer's report, but had been incorrectly cited there (two digits transposed). The correctly numbered report was later obtained through discovery efforts and was submitted in support of the request. The People opposed the request on the basis that the information was not made available to the trial court, and did not qualify for judicial notice under Evidence Code section 452. We denied the request on April 19, 2017.
DISCUSSION
This appeal raises the question of whether shoplifting under new section 459.5 includes thefts from commercial establishments, during regular business hours, other than by common law larceny. The Supreme Court in Gonzales, supra, 2 Cal.5th 858, 862 determined that the language of section 459.5 defining the crime of shoplifting does not require that the takings or planned takings be accomplished by means of larceny. The high court interpreted the term larceny in light of section 490a, and judicial interpretations of that term in burglary cases over many years, and held that thefts other than by larceny can qualify for the offense of shoplifting.
In Gonzales, supra, 2 Cal.5th 858, the defendant had entered a bank during regular business hours, where he cashed forged, stolen checks in amounts less than $950. Obtaining funds in that fashion had been characterized as theft by false pretenses, not larceny. The court summarized its holding: "Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute." (Id. at p. 862.)
Soto admittedly entered a commercial establishment with the intent to commit theft. So far as the record reveals, Soto's acts are analogous to those of the defendant in Gonzales, supra, 2 Cal.5th 858, 862. We conclude, and defense counsel's supplemental briefing concurs, that the reasoning of Gonzales is controlling in this case. However, the face of the probation report and the remainder of the record do not establish the amount of the bad check that Soto admittedly passed, for which he entered the guilty plea, or under what circumstances. (People v. Hudson (2016) 2 Cal.App.5th 575, 583, review granted Oct. 26, 2016 (S237340) [under § 459.5, subd. (a), issues on resentencing eligibility include proof of entry into business during regular business hours and value of property taken].)
Soto contends the People should not now be heard to argue eligibility issues in more detail than in their cursory denial of his allegations, when they answered the original petition. We disagree that any judicial estoppel has arisen, in view of the ongoing development of the law in this area, and continue to address the merits of the issues. (People v. Perkins (2016) 244 Cal.App.4th 129, 139 [review addresses validity of ruling of trial court, not its reasoning].) The law is now clear that a petitioning defendant has the initial burden of establishing eligibility for resentencing of the conviction under section 1170.18, subdivisions (a) and (f). (Gonzalez, supra, 2 Cal.5th at p. 863 [citing § 1170.18, subds. (a), (f) and (g)], p. 875; see People v. Sherow (2015) 239 Cal.App.4th 875, 879.)
Although Soto is eligible under Gonzalez, supra, 2 Cal.5th 858 to bring such a petition, he has not satisfied his burden of proof of showing he is factually entitled to redesignation of the felony conviction to a misdemeanor. He must make an adequate showing of the circumstances of the offenses and that the value of the property taken, for purposes of the particular count, was less than $950, to meet the standards of the Act and section 459.5. We accordingly affirm the trial court's ruling that denied Soto's requests, but observe that Soto is not precluded from filing a new petition with supporting evidence on his eligibility for redesignation.
DISPOSITION
The order denying Soto's petition under section 1170.18 is affirmed, without prejudice to the superior court's consideration of a subsequent petition supported by evidence of his eligibility for relief.



HUFFMAN, J.

WE CONCUR:




BENKE, Acting P. J.




HALLER, J.