Filed 7/6/17 P. v. Herrera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

PAUL MICHAEL HERRERA,

Defendant and Appellant.


E065814

(Super.Ct.No. RIF10004534)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva, and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
On November 17, 18, and 19, 2009, defendant entered a Clearpath Federal Credit Union branch office with the intent to deposit or cash four checks he had written, knowing there were insufficient funds in his bank account to cover the check. The aggregate value of the four forged checks exceeded $950, but the checks individually were each less than $950. Defendant pled guilty to felony burglary (Pen. Code, § 459 ) and admitted one prior strike conviction (§ 667, subd. (e)(1)). After the passage of Proposition 47, defendant filed an application for reduction of his felony burglary conviction to misdemeanor shoplifting (application). The trial court summarily denied the application on the ground the stolen property exceeded $950.
Defendant Paul Michael Herrera appeals from an order denying his application on the ground the trial court erred in denying his application for reduction of his felony burglary conviction to misdemeanor shoplifting (§ 495.5). He maintains the record shows that his second degree burglary offense qualified as misdemeanor shoplifting and therefore should be reduced to a misdemeanor under Proposition 47.
We conclude the trial court properly denied defendant’s application on the ground defendant did not meet his burden of proving eligibility for reduction of his felony burglary conviction to a misdemeanor. The order denying defendant’s application is therefore affirmed.
II
FACTS
In October 2010, the People filed a felony complaint against defendant alleging that on November 19, 2009, defendant committed second degree burglary (§ 459) by entering a Clearpath Federal Credit Union branch office (Credit Union) at 12625 Frederick St., in Moreno Valley, with intent to commit a felony (count 1). The complaint further states defendant committed two additional counts of second degree burglary on November 17 and November, 18, 2009, by entering the Credit Union building with intent to commit a felony (counts 2 and 3). In addition, the complaint alleges defendant committed grand theft (§ 487, subd. (a)) by taking $561.60 in money and personal property belonging to the Credit Union (count 4), and defendant violated section 476a by fraudulently issuing and cashing checks made out to himself in the amounts of $175, $800, $285.60, and $200, knowing there were insufficient funds in his bank account to cover the checks. He issued and/or cashed the four checks on November 16, 17, and 18, 2009, at the Credit Union (count 5). The complaint alleged a prior offense enhancement (prior) and special allegation (strike), based on defendant’s robbery conviction in 2002 (§§ 667.5, subd. (b), 667, subd. (e)(1), 1170.12, subd. (c)(1)).
In January 2011, defendant pled guilty to count 1, second degree burglary and admitted a strike. Defendant also executed a felony plea form, admitting count 1 and the strike. The trial court found a factual basis for the plea based on the felony complaint. The court sentenced defendant to four years in prison, and dismissed the remaining counts and prior.
In November 2014, California voters passed Proposition 47. In September 2015, defendant filed a form application for reduction of his felony burglary conviction (count 1) to misdemeanor shoplifting under Proposition 47 (§§ 459.5, 1170.18, subd. (f)). Defendant alleged in his application that he believed the value of the stolen property at issue in count 1 did not exceed $950.
The People filed opposition to defendant’s application, alleging that count 1 was not a qualifying felony, the Credit Union was not a “commercial establishment” within the meaning of section 1170.18, and the stolen property exceeded $950. The People stated in their form opposition that, “Per AWD – defendant went into the location btwn 11-16-09 & 11-18-09 & deposited 4 checks from his Bank of America account which had been closed b/c he was $2,000+ overdrawn. Defendant took out $571.69 before checks were cleared & eventually all 4 were returned due to insufficient funds. The 4 checks totaled $1,460.60. Defendant can’t meet his burden.”
The trial court summarily denied defendant’s application without a hearing on the ground “defendant deposited 1460.00 in checks on a closed acct into checking acct he opened. Loss exceeds 950.00.” The court filed its order denying defendant’s application on March 8, 2016. Thereafter, defendant sent the court a handwritten letter stating that the court erroneously found that the amount of the lost property exceeded $950, whereas the Credit Union loss was only $571.69.
In response to defendant’s letter, on March 24, 2016, the trial court denied defendant’s ex-parte letter request for reconsideration of his application for reduction of his felony conviction to a misdemeanor. The court explained in its minute order dated March 24, 2016, that “[t]he amount used is not the actual restitution but the value of the checks deposited. [T]hey exceed $950.” Defendant filed a notice of appeal of the March 8, 2016, order denying his application for reduction.
III
DISCUSSION
A. Proposition 47
On November 4, 2014, California voters enacted Proposition 47 (§ 1170.18), “The Safe Neighborhoods and Schools Act,” which became effective the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 reduced certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 directs the “act shall be broadly construed to accomplish its purposes.” (Cal. Voter Information Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47 (Voter Information Guide), p. 74, § 15, at <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of July 7, 2017].) One such purpose is “‘to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative.’ [Citations.] [Proposition 47] also expressly states an intent to ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.’” (People v. Gonzales (2017) 2 Cal.5th 858, 870 (Gonzales), citing Harris v. Superior Court (2016) 1 Cal.5th 984, 992 and the Voter Information Guide, supra, text of Prop. 47, §§ 2-3, par. (2-3), p. 70.)
Under Proposition 47, a defendant may be eligible for misdemeanor resentencing under section 1170.18 if he would have been guilty of a misdemeanor under Proposition 47 if the offense would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subd. (a); Gonzales, supra, 2 Cal.5th at p. 875.)
B. Shoplifting
Proposition 47 added the new shoplifting statute, section 459.5, to the Penal Code. Under section 459.5, shoplifting is a misdemeanor unless the defendant has suffered a disqualifying prior conviction. (§ 459.5, subd. (b); Gonzales, supra, 2 Cal.5th at p. 875.) Section 459.5, subdivision (a) provides: “Notwithstanding Section 459 [burglary], 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.” (Italics added.)
The term “larceny,” used in section 459.5, is interchangeable with the term “theft,” which includes the crimes of stealing property by larceny, false pretenses, and embezzlement. (Gonzales, supra, 2 Cal.5th at pp. 868, 865; §§ 484, 490a.) The term “commercial establishment,” within the meaning of section 459.5, includes businesses that conduct financial transactions, such as banks and credit unions. (Gonzales, at pp. 868, 862.)
Proposition 47 “did not change the punishment for second degree burglary, which is an alternative felony/misdemeanor, commonly known as a ‘wobbler.’ [Citation.] However, section 459.5, subdivision (b) states that ‘[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.’ Thus, defendant would qualify for relief if he can show that his conduct would have constituted misdemeanor shoplifting, so long as he has not suffered a disqualifying conviction. (See §§ 459.5, subd. (a), 1170.18, subd. (i).)” (Gonzales, supra, 2 Cal.5th at pp. 875-876.)
The trial court’s interpretation of Proposition 47 is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) When interpreting a voter initiative like Proposition 47, the courts apply the same principles governing statutory construction. (People v. Rizo (2000) 22 Cal.4th 681, 685.) “‘The first principle of statutory construction requires us to interpret the words of the statute themselves, giving them their ordinary meaning, and reading them in the context of the statute (or, here, the initiative) as a whole. If the language is unambiguous, there is no need for further construction. If, however, the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and what they intended in enacting it.’ [Citation.] ‘In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.’” (Gonzales, supra, 2 Cal.5th at p. 868.)
IV
VALUE OF PROPERTY AT ISSUE
Defendant contends the trial court erred in denying his application for reduction of his felony burglary conviction to misdemeanor shoplifting (§ 459.5) on the ground the aggregate value of the four checks exceeded $950. The complaint does not allege in count 1 the amount of the stolen property at issue. The complaint, however, alleges in count 4 the theft of $561.60 (§ 487, subd. (a)). The complaint also alleges in count 5 that defendant wrote four checks with insufficient funds (§ 476a). The value of each of the individual checks did not exceed $950 but their aggregate value alleged in count 5 totaled $1,460.60. Defendant argues he met his burden of proof by alleging in his application that the property value did not exceed $950.
A. Meeting Defendant’s Burden of Proof
The burden is on defendant to establish that his burglary conviction (count 1) qualifies for reduction from a felony to a misdemeanor under Proposition 47. (People v. Sherow (2015) 239 Cal.App.4th 875, 880). Defendant has not met his burden because he has not established that the property at issue does not exceed $950 in value. Defendant’s allegation in his application that he “believed” the value of the property did not exceed $950 does not satisfy his burden of proof where defendant did not provide any supporting documentation or evidence.
The felony complaint allegations suggest the value of the property in count 1 exceeded $950, based on the aggregate value of the four checks defendant wrote with insufficient funds to cover the checks. Count 1 of the felony complaint, to which defendant pled guilty, alleges that defendant entered the Credit Union on November 19, 2009, with intent to commit a felony. The felony burglary offense alleged in count 1 was committed within several days after defendant wrote the four checks.
Defendant did not provide any evidence in his application refuting that he entered the bank with intent to deposit or cash the four checks totaling $1,460.60, knowing he did not have sufficient funds to cover the checks. He therefore did not meet his burden of establishing the value of the property at issue in count 1 did not exceed $950.
B. Determining the Value of the Property At Issue
Citing People v. Hoffman (2015) 241 Cal.App.4th 1304, defendant argues that, in determining whether the property exceeded $950 for purposes of reducing his felony burglary conviction in count 1 to misdemeanor shoplifting, the trial court erred in relying on the aggregate value of the four checks he wrote with insufficient funds. Hoffman is distinguishable. The defendant in Hoffman was charged with 18 separate counts of felony forgery, and pled guilty to seven of the counts for forging seven of her parents’ checks (§ 470, subd. (d)). Each count was for a separate check. In the instant case, defendant was not charged with forgery, and defendant was charged in a single count with writing four checks without sufficient funds in violation of section 476a. The court in Hoffman held the trial court erred in denying the defendant’s Proposition 47 resentencing petition on the ground the property value exceeded $950 based on the aggregate value of the forged checks. In reaching its holding, the Hoffman court differentiated between a forgery conviction (§ 473) and a conviction for writing checks with insufficient funds (§476a).
A conviction for violating section 476a requires a showing that the defendant wrote checks (1) acting with the specific intent to defraud; (2) at the time the checks were written and delivered, there were not sufficient funds in the bank upon which the checks were drawn to pay in full upon their presentation and all other outstanding checks; and (3) the defendant knew of the insufficiency of the funds when he wrote the checks. (§ 476a; CALJIC No. 15.20.)
The Hoffman court noted that forgery under section 473 “does not authorize the trial court to aggregate check values,” whereas section 476a allows aggregation of check values. (People v. Hoffman, supra, 241 Cal.App.4th at p. 1310; People v. Salmorin (2016) 1 Cal.App.5th 738, 746-747.) Section 476a, subdivision (b) provides, “[I]f the total amount of all checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed nine hundred fifty dollars ($950), the offense is punishable only by imprisonment in the county jail.” (Italics added.)
Because defendant was charged with writing checks with insufficient funds in violation of section 476a, the trial court properly considered the aggregate value of the checks when determining whether the property value exceeded $950 under Proposition 47. Defendant’s reliance on Perkins and Sherow for the proposition the value of the checks issued in the course of committing the charged burglaries did not exceed $950 is misplaced. Neither Perkins nor Sherow involved burglary convictions based on a section 476a felony for writing and passing multiple checks with insufficient funds.
Here, the trial court reasonably construed the burglary conviction alleged in count 1 as based on defendant entering the Credit Union with intent to commit the section 476a felony, alleged in count 5. That section 476a felony was properly alleged as a single count, involving defendant writing and passing multiple checks totaling $1,460.60, knowing he did not have sufficient funds in his account to cover the checks. Under these circumstances, where the underlying felony defendant intended to commit during the burglary was a section 476a offense, the trial court properly found the value of the property at issue exceeded $950, based on the aggregate value of the checks alleged in the section 476a count.
V
DISPOSITION
The judgment is affirmed without prejudice to defendant filing a new application for reduction of count 1 to a misdemeanor under Proposition 47.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.