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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


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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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