People v. Thompson CA4/2 ( 2016 )

Filed 7/7/16 P. v. Thompson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E063223
v. (Super.Ct.No. RIF1408317)
JASON CHRISTOPHER THOMPSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Allison V.
Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
1
Following passage of Proposition 47, defendant Jason Thompson sought
resentencing on his second degree burglary conviction pursuant to Penal Code1 section
1170.18, subdivision (a). The trial court denied relief, finding defendant was ineligible to
have his felony reduced to a misdemeanor because he broke into a closed business.
Defendant appeals that determination on the ground the court resolved the factual issue of
his eligibility without competent evidence. Although we agree that the trial court relied
upon improper information outside the record of conviction, that record of conviction
fails to establish an essential element of the new crime of shoplifting, pursuant to section
459.5. Therefore, we affirm, but do so without prejudice to allow defendant to refile his
petition.
BACKGROUND
On June 13, 2014, defendant, along with two others,2 entered a building with the
intent to steal. On June 27, 2014, defendant was charged with second degree burglary
(§ 459, count 1), and with a violation of probation in another case.
On July 30, 2014, defendant entered into a plea agreement whereby he pled guilty
to count one, second degree burglary, in return for a stipulated sentence of two years, of
which one year would be served in local custody and the remaining time would be served
1 All further statutory references are to the Penal Code, unless otherwise stated.
2 The named co-participants were Richard Owen Simms and Sean Paul Anthony
Frazier. Frazier brought a separate petition for resentencing after Proposition 47, which
was also denied. That denial is before us in a separate appeal, People v. Frazier,
E064238. Simms, the third defendant, does not have an appeal pending in this court.
2
under mandatory supervision, pursuant to section 1170, subdivision (h).3 By way of
factual basis for the plea, defendant’s change of plea form indicates, “I agree I did the
things that are stated in the charges I am admitting.” During the oral proceedings,
defendant assented when the court asked, “Sir, is it true that on June 13, 2014 in
Riverside County, you entered a building with the intent to steal something?” On August
28, 2014, defendant was sentenced to county jail, in accordance with the plea agreement.
On December 10, 2014, defendant petitioned for resentencing on the ground his
felony second degree burglary conviction had been made a misdemeanor pursuant to
Proposition 47. The petition alleged defendant’s belief that the value of the check or
property did not exceed $950. In response, the People asserted defendant was not entitled
to the relief requested because he broke into a closed business. The trial court summarily
denied the petition on the ground defendant was ineligible because he broke into a closed
business. Defendant appealed.
3 Defendant filed a request to augment the record to include the Reporter’s
Transcript of the change of plea proceedings. The People opposed the request on the
ground there is no evidence that this record was before the trial court at the time of the
ruling on defendant’s petition for resentencing. However, the reporter’s transcript of a
change of plea is considered part of the normal record on appeal. (Cal. Rules of Ct., rule
8.320(c)(1).) The transcript is also considered part of the record of conviction and, as we
will show in our discussion, because the determination of whether a defendant’s
conviction qualifies for resentencing depends on the nature of the conviction as
demonstrated by the record of conviction, it was presumably considered by the trial court
even if by implication. (Evid. Code, § 664.) We therefore grant the request.
3
DISCUSSION
Defendant argues that the trial court erred in denying his petition. Specifically, he
argues that the trial court erroneously resolved the factual issue of his eligibility without
competent evidence or an evidentiary hearing. While we agree that the court improperly
relied on an unsworn statement in the People’s response, we nevertheless disagree that
remand is necessary because the record of conviction does not establish the requisite
elements of shoplifting, needed to qualify for resentencing pursuant to section 459.5.
Proposition 47 created a new sentencing provision in section 1170.18. (People v.
Rivera (2015) 233 Cal. App. 4th 1085, 1092.) In pertinent part, subdivision (a) of section
1170.18 provides that “[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 . . . 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.” (§ 1170.18, subd. (a); People v. Rivera, supra, at p. 1092.)
Proposition 47 added section 459.5, which reclassifies certain second degree
burglaries as shoplifting, a misdemeanor. However, “‘to qualify for resentencing under
the new shoplifting statute, the trial court must determine whether defendant entered “a
commercial establishment with intent to commit larceny while that establishment [was]
4
open during regular business hours,” and that “the value of the property that [was] taken
or intended to be taken” exceeded $950. (§ 459.5, subd. (a).)’” (People v. Rivas-Colon
(2015) 241 Cal. App. 4th 444, 448, quoting People v. Contreras (2015) 237 Cal. App. 4th
868, 892.)
Section 1170.18, subdivision (b), provides that upon receipt of a petition for
resentencing, “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 Section 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, . . ..”
The petitioner has the initial burden of establishing eligibility for resentencing
under section 1170.18, subdivision (a). (People v. Sherow (2015) 239 Cal. App. 4th 875,
879.)4 However, section 1170.18, subdivision (b), does not indicate how the trial court
should make its determination or what matters the court may consider in making the
determination. We are thus guided by decisions addressing the related question of
eligibility for resentencing under section 1170.126.
As is the case under section 1170.18, section 1170.126 provides that upon
receiving a petition for recall of sentence under that section, the court shall determine
whether the petitioner satisfies the criteria in subdivision (e). (See, People v. Guilford
4 The defendant in this case filed his petition before Sherow was decided, so he
did not have the benefit of that authority.
5
(2014) 228 Cal. App. 4th 651, 657.) The trial court has the burden to make the
determination whether a defendant meets the prima facie criteria for recall of the
sentence. (Ibid.) The determination of eligibility must be based on the whole record of
conviction, including any prior appellate decision. (Id. at p. 660, citing People v.
Woodell (1998) 17 Cal. 4th 448, 454-457 (Woodell); People v. Bradford (2014) 227
Cal. App. 4th 1322, 1327 (Bradford).)
In Bradford, the reviewing court relied on the holdings of People v. Guerrero
(1988) 44 Cal. 3d 343 (Guerrero), and Woodell, supra, 17 Cal. 4th 448, addressing the
type of materials which may be reviewed and considered to prove a prior conviction
allegation. (Bradford, supra, 227 Cal.App.4th at pp. 1337-1339.) It concluded that the
statutory language and framework of Proposition 36 contemplated a determination of a
petitioner’s eligibility for resentencing based on the “record of conviction,” pursuant to
Guerrero and Woodell. (Bradford, supra, 227 Cal.App.4th at p. 1338.)
Under Guerrero, a court may look to the entire record of the conviction, “but no
further,” in determining the nature of a prior conviction. (Guerrero, supra, 44 Cal.3d at
p. 355, italics original.) The record of conviction comprises the statutory definition, the
charging document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented. (Shepard v. United
States (2004) 544 U.S. 13, 16 [125 S. Ct. 1254, 161 L. Ed. 2d 205].) A police report could
not be considered in making this determination, as it is not ordinarily a part of the record
of conviction. (Shepard, supra, 544 U.S. at p. 16; Moles v. Gourley (2003) 112
6
Cal. App. 4th 1049, 1060, citing Draeger v. Reed (1999) 69 Cal. App. 4th 1511, 1523
[relating to proof of drunk driving conviction for purposes of license suspension
proceedings].)
Statements regarding the circumstances of an offense made after the court has
accepted defendant’s guilty plea are not part of the record of conviction. (People v.
Roberts (2011) 195 Cal. App. 4th 1106, 1127-1128.) However, the parties may stipulate
to evidence or facts on remand. (See People v. Jackson (1985) 37 Cal. 3d 826, 835
[defendant’s admitted that his prior generic burglary conviction was residential, which
established that it was a prior serious conviction].)5 Because the petition in this case was
filed before Sherow was decided, and because it was filed using a mandatory form that
did not include space for allegations or evidence that might establish a prima facie case,
defendant was deprived of the opportunity to prove his eligibility for resentencing.
In the present case, the trial court apparently relied upon an unsworn statement in
the People’s opposition to defendant’s petition, in which the prosecutor stated defendant
was not entitled to the relief requested because he “[b]roke into a closed business.” There
is nothing in the record of conviction to indicate the time of day when the second degree
burglary occurred: the charging document is silent on that point, there was no
preliminary hearing at which such evidence might have been adduced, and defendant’s
5 The California Supreme Court recently granted review in People v. Triplett
(2016) formerly at 244 Cal. App. 4th 824, (S233172, rev.gtd. April 27, 2016), which
suggested that the court could consider matters to which the parties stipulated in addition
to the record of conviction.
7
admission at the time of his plea did not elucidate the time of the offense. The
information on which the court relied was not a part of the record of conviction and was
not stipulated by the parties. It was therefore improper for the court to base its
determination upon the basis of an unsworn statement, outside the record of conviction.
But that, too, does not end our inquiry, because defendant’s eligibility for
resentencing depends upon whether the record of conviction establishes all the elements
of the newly enacted offense of shoplifting, pursuant to section 459.5. In addition to
showing that defendant entered a commercial establishment during regular business hours
with the intent to commit larceny, he was also required to show that the value of the
property taken or intended to be taken does not exceed $950. (§ 459.5, subd. (a).) Here,
the record is silent as to the nature of the building, the time of the offense, or the value of
the property taken or intended to be taken. Therefore, the record of conviction does not
establish that defendant entered a commercial establishment during regular business
hours, and took or intended to take property with a value not exceeding $950. Defendant
did not meet the requirements for eligibility for resentencing.
Defendant argues that the trial court’s ruling, which resolved the “contested
factual issue” without a hearing or evidence, denied him due process. We disagree that
he was entitled to an evidentiary hearing on a contested factual issue. However, his
inability to establish a prima facie eligibility for resentencing is attributable in part to the
shortcomings of the mandatory form, and the fact he did not have the benefit of the
decision in Sherow. Having argued to limit review to the record of conviction, he cannot
8
now argue for an evidentiary hearing to consider new evidence, not contained in that
record of conviction.
Although the trial court improperly considered information outside the record of
conviction, its denial of the petition was nonetheless correct. Nevertheless, because
defendant filed his petition before Sherow was decided, he should have the opportunity to
refile his petition.
DISPOSITION
The judgment is affirmed without prejudice to allow defendant to refile his
petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
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