Filed 11/24/15 P. v. Zepeda CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B262223

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA098151)
         v.

RICHARD SANCHEZ ZEPEDA,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Jack Hunt,
Judge. Reversed and remanded.


         Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                  ________________________________
       In 2012, Richard Sanchez Zepeda pled no contest to one count of second degree
commercial burglary. In January 2015, Zepeda petitioned for resentencing pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18;
Proposition 47).1 The trial court denied the petition on the ground that the statute was
prospective only. We reverse the trial court order and remand for further proceedings.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In October 2012, Zepeda pled no contest to one count of second degree
commercial burglary (§ 459), a felony. He admitted one prior strike. (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d).)2 The charge arose out of an incident in which Zepeda was
caught shoplifting items worth a total of $124.94 from a Target store. Zepeda was
sentenced to a total prison term of four years.
       In January 2015, Zepeda filed a petition pursuant to section 1170.18, seeking
recall of his sentence and resentencing, pursuant to Proposition 47. The trial court denied
the petition, stating: “In this matter, the defendant was charged with second degree
burglary. It’s not subject to Prop. 47. As to burglaries, it’s prospective, not retroactive.
Denied.” This appeal timely followed.
                                       DISCUSSION
       Zepeda argues, and the People concede, that the trial court erred in denying the
petition on the ground that Proposition 47 is not retroactive.
       Under section 1170.18, subdivision (a), “ ‘A person currently serving a sentence
for a conviction . . . 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
[enumerated sections, including section 459.5], as those sections have been amended or
added by this act.’ The trial court must then determine if the petitioner is eligible for


1      All further statutory references are to the Penal Code.
2      The strike was a 2008 conviction for attempted robbery (§§ 211, 664.)

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resentencing; if so, the trial court must recall and resentence the petitioner, unless it
determines that doing so ‘would pose an unreasonable risk of danger to public safety.’
(§ 1170.18, subd. (b).) A person seeking relief under this section must file his or her
petition ‘within three years after the effective date of the act that added this section or at a
later date upon a showing of good cause.’ (§ 1170.18, subd. (j).)” (People v. Scarbrough
(2015) 240 Cal.App.4th 916, 924.)
         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.
Shoplifting shall be punished as a misdemeanor, except that a person with 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 may be punished pursuant to subdivision (h) of Section
1170.”
         Under section 459.5, Zepeda’s offense—stealing under $200 of merchandise from
a store—would be characterized as misdemeanor shoplifting, not burglary. There was no
allegation in the underlying case or any other indication in the record that Zepeda
suffered a disqualifying conviction under section 667, subdivision (e)(2)(C)(iv), or
section 290, subdivision (c). In accordance with section 1170.18, subdivisions (a) and
(b), he was entitled to recall of his sentence and resentencing.
         The trial court denied the petition on the ground that Proposition 47 is not
retroactive as to burglaries. However, retroactivity was not at issue in this case. Zepeda
was not, for example, contending on direct appeal that he was entitled to a misdemeanor
sentence. His case was final at the time the initiative was enacted. (See e.g., People v.
Shabazz (2015) 237 Cal.App.4th 303, 312-313.) Thus he was proceeding solely under
section 1170.18, subdivision (a), which squarely applied to defendants like him, serving a
sentence for a felony and who would have been guilty of a misdemeanor had Proposition

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47 been in effect at the time of the offense. That provision authorized him to seek a
recall of his sentence and resentencing.
       Because the trial court incorrectly concluded Proposition 47 could not apply to
Zepeda’s conviction, we reverse the order and remand for further proceedings.
                                     DISPOSITION
       The trial court order denying Zepeda’s petition is reversed. On remand, the trial
court is directed to grant the petition and resentence Zepeda to a misdemeanor under
section 459.5 unless it “determines that resentencing [him] would pose an unreasonable
risk of danger to public safety.” (§ 1170.18, subd. (b).)




                                                            BIGELOW, P.J.
We concur:


                     FLIER, J.




                     GRIMES, J.




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