People v. Rodriguez

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JAMES RODRIGUEZ, Defendant and Appellant.

F071522

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

January 25, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 3843 & 4051)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge.

Sylvia W. Beckham, 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, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Timothy James Rodriguez (defendant) petitioned the Madera County Superior Court, pursuant to Penal Code section 1170.18, subdivision (f), for reduction to misdemeanors of his prior felony convictions in three separate cases.¹ His petition was granted in one case, but denied in two others. He now challenges the denials. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 15, 1972, in Madera County Superior Court case No. 3843, a jury convicted defendant of burglary in violation of section 459. According to the probation officer's report, defendant stated he went with Felipe Rubio, but did not enter the building himself. He also said he used heroin prior to committing the crime that night. Judy Benson related she was with "Phil" outside a pool hall, waiting to obtain heroin, when defendant arrived. This was approximately 9:30 or 10:00 at night. Defendant had heroin and provided them with some. He had burglarized someplace earlier. The probation report related that neither victim, both of whom were doctors, knew defendant. One did not get any of his property back. It was valued at $250. The other recovered all his property; however, a typewriter valued at $90 was so badly damaged it had to be replaced.

On December 18, 1974, in Madera County Superior Court case No. 4051, defendant was convicted, following a trial, of second degree burglary in violation of section 459. According to the Madera County Sheriff's report, as summarized in the report of the probation officer, the sheriff's department was notified of a burglary alarm sounding at a service station just before 1:00 a.m. Responding law enforcement officers found there had been a forced entry into the station, and items had been moved around inside. Defendant and another man were found hiding inside the station. Some damage was done during the break-in, but nothing was taken.

On December 22, 2014, defendant filed petitions pursuant to section 1170.18, subdivision (f), requesting reduction to misdemeanors of specified felony convictions. Insofar as is pertinent to this appeal, the petitions filed in case No. 3843 and case No. 4051 stated under penalty of perjury:

"I, Timothy James Rodriguez, request reduction of the following felony convictions in this County for which I am no longer serving the term:

"PC § 459, second deg. burglary, two counts, Case No. unknown, sentenced to CYA Dec. 6, 1972

"PC § 496, receiving stolen property, Case No. 3940, sentenced to CYA Sept. 18, 1974

"PC § 459, second deg. burglary, Case No. 4051, sentenced to prison Aug. 15, 1976 [¶] . . . [¶]

"Petitioner has no prior convictions listed in Penal Code section 667, subdivision (e)(2)(C)(iv), Penal Code section 290, or Penal Code section 368, subdivisions (d) or (e). Petitioner asks counsel be appointed at any hearing ordered in response to this Petition. . . ."

On March 19, 2015, counsel was appointed for defendant and the petitions were set for hearing. The court noted defendant appeared to be eligible for reduction only in case No. 3940.

A hearing on the petitions was held on April 17, 2015. The following took place:

"THE COURT: Mr. Rodriguez filed petitions under 1170.18 subdivision (f). And last time we were in court, I provided both counsel with information from the probation department's file, and it would appear based upon that . . . that he may be eligible in Case No. 3940, but definitely not the other two.

"[DEFENSE COUNSEL]: Your Honor, . . . I agree with that analysis in so much as in 3940, my indication is that the theft was two cartons of cigarettes, and so I don't believe that reaches the 950.

"THE COURT: Correct.

"[PROSECUTOR]: I agree, your Honor.

"THE COURT: All right. So in case No. 3940, the matter is reduced to a misdemeanor, pursuant to Section 1170.18. And I believe that's all I need to do in that case. He's already served the sentence in that matter.

"And do you agree, [defense counsel], that the other two matters are not eligible?

"[DEFENSE COUNSEL]: I do, your Honor, because my understanding is that we had a business that was closed at the time in one case — actually, in both cases.

"THE COURT: Both cases.

"[DEFENSE COUNSEL]: So, therefore, that would not be eligible for Prop 47.

"THE COURT: So in case 3843 and 4051, the petitions are denied."

DISCUSSION

On November 4, 2014, voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also provided a mechanism by which a person who has completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, can apply to the trial court that entered the judgment of conviction to have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)²

One of the felonies reduced to a misdemeanor by the Act was second degree commercial burglary. Now if a person "enter[s] a commercial establishment with intent to commit larceny while that establishment is open during regular business hours" and takes or intends to take property with a value not exceeding $950, that person has committed misdemeanor shoplifting, unless he or she has "one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 . . . ." (§ 459.5, subd. (a).) "Any other entry into a commercial establishment with intent to commit larceny is burglary." (Ibid.) Thus, in order for a defendant to qualify to have his or her prior second degree burglary conviction reduced to a misdemeanor under this statute, " 'the trial court must determine whether [the] 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. [Citation.]' [Citation.]" (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.)

"We review the trial court's construction of Proposition 47 de novo. [Citation.] We review any factual findings in connection with the court's ruling on the petition for substantial evidence. [Citations.]" (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)

Defendant, as the petitioner, had the burden of showing he was eligible to have his prior convictions reclassified as misdemeanors.³ (People v. Sweeney (2016) 4 Cal.App.5th 295, 302; People v. Johnson (2016) 1 Cal.App.5th 953, 956, 962, 963; People v. Hall (2016) 247 Cal.App.4th 1255, 1263; People v. Bush (2016) 245Cal.App.4th 992, 1007; People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow (2015) 239 Cal.App.4th 875, 877, 879-880; see Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting."].) It appears defendant met his initial burden of demonstrating he had no prior convictions that made him categorically ineligible for resentencing under section 1170.18, subdivision (i), by so declaring under penalty of perjury in his petitions. (See People v. Hall, supra, 247 Cal.App.4th at p. 1263; see also People v. Abarca (2016) 2 Cal.App.5th 475, 480, review granted Oct. 19, 2016, S237106.) He failed, however, to make a prima facie showing establishing his prior felony convictions were for offenses that would have been misdemeanors had Proposition 47 been in effect at the time the crimes were committed. (People v. Hall, supra, 247 Cal.App.4th at p. 1263.) He simply listed the offenses as second degree burglary, without even stating they involved commercial establishments, let alone that he entered during regular business hours and took or intended to take property with a value of less than $950. (See § 459.5, subd. (a).) This was patently insufficient (see People v. Sweeney, supra, 4 Cal.App.5th at p. 302; People v. Johnson, supra, 1 Cal.App.5th at p. 961; People v. Hall, supra, 247 Cal.App.4th at p. 1263; People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450; People v. Sherow, supra, 239 Cal.App.4th at p. 880), particularly since even after Proposition 47, some entries into commercial establishments with intent to commit larceny remain second degree burglaries that can be punished as felonies (see § 461, subd. (b)).

We recognize that at the time defendant's petitions were filed, the law on this point was not yet clear.⁴ As a result, some courts have either granted the defendant leaveto file an amended petition (People v. Sweeney, supra, 4 Cal.App.5th at p. 303), or affirmed the...