Filed 7/27/17 P. v. Greenblat CA4/2
On remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SHAWNPATRICK GREENBLAT,

Defendant and Appellant.


E062874

(Super.Ct.No. FVI021372)

OPINION


APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Shawnpatrick Greenblat (defendant) appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.18. The issue is whether defendant made a sufficient showing in his petition that he qualifies for resentencing for misdemeanor shoplifting (§ 459.5, subd. (a)) in lieu of his original sentence for second degree commercial burglary. He contends that the facts underlying a dismissed count show that he entered a business for the purpose of passing a forged check in the amount of $485 and that this supports his position that the commercial burglary to which he pled guilty constitutes misdemeanor shoplifting.
In our original opinion, we held that defendant did not meet his burden of demonstrating that the charged offense constituted misdemeanor shoplifting, in that there was nothing in the record that showed either that the value of the property he stole or intended steal was less than $950 or that the establishment was open for business, both of which are elements of section 459.5, subdivision (a). For that reason, we affirmed the judgment. In the course of reaching this decision, we concurred with the Attorney General’s contention that “passing of a bad check does not constitute larceny” and therefore cannot constitute shoplifting as that offense is defined in section 459.5. Accordingly, even if we had considered the facts alleged in count 2 as illustrating the nature of the commercial burglary, we would have concluded that defendant was not eligible for resentencing under section 1170.18.

Defendant filed a petition for review, which was granted and held pending the California Supreme Court’s resolution of People v. Gonzales, S231171. On March 23, 2107, the Supreme Court issued its opinion in that case. It held that entering a bank to cash forged checks does constitute shoplifting as defined in section 459.5, and that the defendant in that case was eligible for resentencing under section 1170.18. (People v. Gonzales (2017) 2 Cal.5th 858, 864-877 (Gonzales).) On June 28, 2017, the Supreme Court transferred this case to this court with directions to vacate the original decision and to reconsider the cause in light of the decision in Gonzales. We have vacated the original opinion by separate order. We now reconsider the cause in light of Gonzales.
HISTORY
Defendant was charged with second degree commercial burglary (§ 459; count 1), forgery with intent to pass a forged check, in the amount of $485, as genuine (§ 470, subd. (d); count 2), and identity theft (§ 530.5, subd. (a); count 3). All three counts were alleged to have occurred on or about September 13, 2004. Count 1 alleged that defendant entered the commercial premises occupied by Money Mart with the intent to commit larceny “and any felony.”
The operative first amended complaint also alleged that defendant had two prior serious felony convictions within the meaning of section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i), and had served six prior prison terms within the meaning of section 667.5, subdivision (b).
On April 5, 2010, pursuant to a plea bargain, defendant pleaded no contest to counts 1 and 3, and count 2 was dismissed. The court struck one of the prior serious felony conviction allegations. It also struck one of the prior prison term allegations because the conviction occurred after the date of the offenses charged in the instant case. The court imposed an aggregate sentence of 12 years four months.
On November 4, 2014, the electorate passed Proposition 47, the Safe Neighborhoods and Schools Act. The act, which included section 1170.18, was effective on November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) On November 24, 2014, defendant filed a petition for resentencing pursuant to section 1170.18. At a hearing on December 5, 2014, at which defendant was not present but was represented by counsel, the court heard the matter “without case file.” The court found defendant not eligible for resentencing and denied the petition. Defendant filed a timely notice of appeal.
DISCUSSION
Section 1170.18 provides, in pertinent part: “(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.
“(b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, [as] those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”
Among the crimes which may be reduced to misdemeanors are commercial burglaries where the defendant enters a store during business hours with the intent to steal. This offense is now defined as shoplifting as set forth in the newly enacted section 459.5. Shoplifting is a misdemeanor if the value of the items stolen is $950 or less. (§ 459.5, subd. (a).)
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).) The Attorney General initially argued in this case that passing a forged check is not larceny. In Gonzales, supra, 2 Cal.5th 858, however, the court held that the word “larceny,” as used in section 459.5, must be construed to mean “theft.” The court relied upon section 490a, which provides: “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” Accordingly, the court held, entering a business to pass a forged check does constitute shoplifting, and the offense is a misdemeanor if the value of the check is less than $950. (Gonzales, at pp. 869-875.)
The record of defendant’s conviction does not establish that defendant entered a business to steal items valued at less than $950 or that the business was “open during regular business hours” at the time he entered the establishment. (§ 459.5, subd. (a).) Nor does it establish that he entered the store with the intention of passing a forged check. The record of a conviction based on a guilty plea includes the charging instrument, the defendant’s guilty plea, and the preliminary hearing transcript if there is one. (People v. Reed (1996) 13 Cal.4th 217, 223-229.) Here, defendant waived a preliminary hearing. Accordingly, the record of conviction consists solely of the first amended complaint, the change of plea form and the transcript of the change of plea hearing. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1120-1123.) The parties specifically stipulated that the source of the factual basis for the plea is the first amended complaint. Count 1 of the first amended complaint alleges that defendant “did enter a commercial building occupied by Money Mart with the intent to commit larceny and any felony.” It does not allege the value of any item that defendant stole or intended to steal, nor does it allege that the establishment was open for business. Count 3, identity theft, also does not contain any allegation that would establish either of those facts. The dismissed count, for forgery, does not allege facts that would compel the conclusion that passing the forged check was the felony alleged in count 1.
However, as the California Supreme Court held in People v. Romanowski (2017) 2 Cal.5th 903, where facts that were not relevant at the time of the defendant’s guilty plea and are therefore not established by the record of conviction are newly made relevant by section 1170.18, a defendant should be afforded an evidentiary hearing “‘if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal. Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880 . . . [‘A proper petition could certainly contain at least [the petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.’].)” (Romanowski, at p. 916.) Thus, matters outside the record of the defendant’s underlying conviction may be considered if they are alleged and supported in the petition.
Here, defendant’s petition is not included in the record on appeal. At the time he filed his petition, however, section 1170.18 was newly enacted. The statute is “silent as to the burdens associated with petitioning for relief.” (People v. Johnson (2016) 1 Cal.App.5th 953, 970.) At that point, the appellate courts had not provided guidance to the trial courts and litigants as to the burden of establishing eligibility. (Ibid.) We will assume, therefore, that defendant’s petition did not contain sufficient information either to warrant relief or to warrant an evidentiary hearing to determine whether he was entitled to relief. Under the circumstances, it is appropriate to affirm the order denying the petition, but to do so “without prejudice to the superior court’s consideration of a subsequent petition that contains evidence—not limited to the record of conviction—of [the petitioner]’s eligibility for relief under [section 1170.18].” (Id. at p. 971, italics omitted.) Accordingly, although we will affirm the order denying defendant’s petition, we will do so without prejudice.

DISPOSITION
The order denying defendant’s petition for resentencing is affirmed. This affirmance is without prejudice to the superior court’s consideration of a subsequent petition that offers evidence of defendant’s eligibility for the requested relief under Penal Code section 1170.18.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:


MILLER
J.


FIELDS
J.