Filed 4/28/16 P. v. Stevens CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,                                   A144047

v.                                                                   (Solano County
DAVID CHARLES STEVENS,                                               Super. Ct. Nos. FCR307424,
                                                                     FCR309815)
         Defendant and Appellant.


         Appellant David Charles Stevens was convicted of receiving a stolen vehicle (Pen.
Code, § 496d)1 and second degree commercial burglary (§ 459) pursuant to his felony
pleas of no contest in two separate matters. He was denied resentencing under The Safe
Neighborhoods and Schools Act, which was adopted by voter initiative as Proposition 47
on November 4, 2014. We address three recurring issues regarding interpretation and
application of Proposition 47: (1) whether a person convicted of receiving a stolen motor
vehicle in violation of section 496d, where the motor vehicle was worth $950 or less, is
eligible for resentencing under section 496, subdivision (a) (misdemeanor receipt of
stolen property worth $950 or less; hereafter section 496(a)); (2) whether a person
convicted of felony commercial burglary in violation of section 459, who entered a
commercial establishment during open hours with the intent to pass a forged check worth
$950 or less, is eligible for resentencing under section 459.5 (misdemeanor “shoplifting”



         1
             Undesignated statutory references are to the Penal Code.


                                                             1
of property worth $950 or less); and (3) what evidence the trial court should consider in
determining eligibility for Proposition 47 resentencing.
       We affirm the trial court’s denial of Stevens’s petition for misdemeanor
sentencing under section 496(a), but reverse its denial of his petition for resentencing
under section 459.5. We also conclude that the trial court should consider the evidence
within and outside the record of a petitioner’s conviction as well as undisputed facts
acknowledged by the parties.
                                 I.      PROPOSITION 47
       Proposition 47 was intended to “ensure that prison spending is focused on violent
and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to
invest the savings generated from this act into prevention and support programs in K–12
schools, victim services, and mental health and drug treatment.” (Voter Information
Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, Proposition 47
reduced most possessory drug offenses and thefts of property valued at less than $950 to
straight misdemeanors and created a process for persons currently serving felony
sentences for those offenses to petition for resentencing for misdemeanors.
       Proposition 47 added section 490.2, which provides that “[n]otwithstanding
Section 487 or any other provision of law defining grand theft, obtaining any property by
theft where the value of the money, labor, real or personal property taken does not exceed
nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as
a misdemeanor.”2 The initiative also amended section 496(a) to provide that receipt of
stolen property worth $950 or less is a misdemeanor, and amended the punishment
provision for certain forgery crimes to provide that the crimes are misdemeanors when
the value of the forged property is $950 or less. (§ 473, subd. (b).) Finally as relevant
here, the initiative added section 459.5 to define the new crime of “shoplifting”:
“Notwithstanding Section 459 [which defines burglary], shoplifting is defined as entering
a commercial establishment with intent to commit larceny while that establishment is

       2
        Section 490.2 and the other statutes discussed in this paragraph do not apply if
the defendant has certain prior convictions, which are not relevant here.

                                             2
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).” (§ 459.5,
subd. (a).)
       Proposition 47 created a procedure for persons currently serving felony sentences
to petition for recall of their sentences and resentencing if their crimes would have been
misdemeanors under the statutes amended or added by the initiative. Under
section 1170.18, “(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
[Proposition 47] had [it] 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 [Proposition 47]. [¶] (b) . . . If the
petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be
recalled and the petitioner resentenced to a misdemeanor . . . unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”
                                    II.    BACKGROUND
       In May 2014, Stevens was charged with one count of receiving a stolen motor
vehicle (§ 496d, subd. (a)), and it was alleged that he had served two prior prison terms
within the meaning of section 667.5, subdivision (b). The following September, he was
charged with second degree commercial burglary of a Wells Fargo bank (§ 459) and
check forgery (§ 475, subd. (a)), again with prior prison term allegations.
       On September 22, 2014, pursuant to a plea agreement, Stevens pled no contest to
the receiving charge (§ 496d, subd. (a)) and admitted section 667.5, subdivision (b)
allegations. He also pled no contest to the burglary charge (§ 459) from the newer case.
He was sentenced to an aggregate sentence of three years eight months to be served in
county jail pursuant to section 1170, subdivision (h), with two years eight months
suspended. His sentence on the burglary charge was two years in prison, and his


                                               3
sentence on the receiving charge was eight months in state prison plus a one year
enhancement pursuant to section 667.5, subdivision (b).
       On November 25, 2014, Stevens filed petitions in each case to recall his sentence
and redesignate the convictions as misdemeanors pursuant to Proposition 47. Stevens
first sought resentencing on his section 496d conviction for receiving a stolen motor
vehicle. He argued that “in order for the crime of possession of stolen property to be a
felony, the value of the item must be more than $950. (See . . . § 496(a).) . . . [T]o
effectuate the [initiative’s] intent . . . and under the Equal Protection Clause . . .
section 496d(a) [must be construed to also] require[] that the value of the vehicle at issue
exceed $950 in order to be a felony offense.” Stevens further argued that section 496d
should be so construed in light of section 490.2, which reduced the punishment for theft
of property worth $950 or less to a misdemeanor. He argued that, because receiving
stolen property was “really a second level of criminality[,] . . . it would seem to be both
illogical and inconsistent . . . that if a person actually took a vehicle . . . that was under
[$]950, they would be covered by [section 490.2], but that somehow 496d, the next level,
. . . is not covered. [¶] It certainly is inconsistent with what is the clear intent of the
statute to come up with sentencing alternatives for nonviolent, nonserious offenses” and
is an equal protection violation. The prosecutor argued in opposition that Proposition 47
did not expressly authorize reductions of sentences under section 496d and the initiative
should not be construed to do so in contradiction of its plain language. The trial court
denied the petition. “I don’t believe 496d(a) is encompassed by Prop 47.”
       In relation to the petition for resentencing on his section 459 burglary conviction,
Stevens pointed out “[t]here was no preliminary hearing in this case, but according to the
police report, the basic allegation . . . [was] that Mr. Stevens entered a Wells Fargo bank
and attempted to cash a forged check for $450.” Stevens argued he was entitled to
resentencing to a misdemeanor pursuant to section 459.5 or section 490.2. In opposition,
the prosecutor acknowledged that Stevens entered a bank with the intent to pass a forged
check for $450, but argued that Stevens was not eligible for resentencing because his
crime did not meet the definition of shoplifting under section 459.5; she did not address


                                                4
section 490.2. At the initial hearing on Stevens’s recall petitions, the prosecutor relied
solely on the argument that a bank is not a “commercial establishment” within the
meaning of section 459.5. At a later hearing, she argued that Stevens did not enter the
bank with the “intent to commit larceny,” as required by section 459.5. The court denied
the petition on the ground that an intent to pass a forged check is not an intent to commit
“larceny” as required by section 459.5, rejecting Stevens’s argument that section 490a
incorporates all forms of theft into the statutory term “larceny.”
                                     III.   DISCUSSION
       “In interpreting a voter initiative, ‘we apply the same principles that govern
statutory construction’ [citation], and ‘our primary purpose is to ascertain and effectuate
the intent of the voters who passed the initiative measure. [Citations.]’ [Citation.] ‘ “In
determining such intent, a court must look first to the words of the statute themselves,
giving to the language its usual, ordinary import and according significance, if possible,
to every word, phrase and sentence in pursuance of the legislative purpose.” [Citation.]
At the same time, “we do not consider . . . statutory language in isolation.” [Citation.]
Instead, we “examine the entire substance of the statute in order to determine the scope
and purpose of the provision, construing its words in context and harmonizing its various
parts.” [Citation.] Moreover, we “ ‘read every statute “with reference to the entire
scheme of law of which it is part so that the whole may be harmonized and retain
effectiveness.” ’ ” ’ ” (People v. Valencia (2016) 245 Cal.App.4th 730, 734 (Valencia).)
We decide issues of statutory interpretation de novo. (People ex rel. Lockyer v.
Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
A.     Receipt of a Stolen Vehicle
       Stevens argues the trial court erred in ruling that convictions for section 496d are
not eligible for resentencing under section 496(a) where the vehicle’s value was $950 or
less.3 He argues section 496(a) provides that receipt of “any” stolen property (i.e.,


       3
        The value of the vehicle at issue here was never established at the hearings on
Stevens’s petitions.


                                              5
including vehicles) is a misdemeanor, and it would not make sense to construe
Proposition 47 to reduce the crimes of stealing a vehicle worth $950 or less or receiving
property other than a vehicle worth $950 or less to misdemeanors, but not to reduce the
crime of receiving a stolen vehicle worth $950 or less to a misdemeanor. We conclude
the voters did so intend and therefore affirm the trial court.
       Stevens’s argument has facial appeal. Section 496(a) provides that when any
person “buys or receives any property that has been stolen” worth $950 or less, the
offense is a misdemeanor unless the person has the proscribed prior convictions. (Italics
added.) Section 1170.18 requires resentencing of any person serving a felony sentence
“who would have been guilty of a misdemeanor under [Proposition 47] had
[Proposition 47] been in effect at the time of the offense,” unless he or she “would pose
an unreasonable risk of danger to public safety.” (§ 1170.18, subds. (a), (b), italics
added.) Section 1170.18 does not limit the resentencing remedy to a person who would
only have been guilty of a misdemeanor under Proposition 47 and would not also have
been guilty of an alternate felony/misdemeanor “wobbler” or felony under some other
provision of the Penal Code. Therefore, Stevens arguably was entitled to resentencing
under section 496(a) even though he was also guilty of violating section 496d, which was
not reduced to a misdemeanor by Proposition 47.
       Some courts have reasoned that persons convicted under certain statutes are
ineligible for resentencing under Proposition 47 because those specific statutes are not
listed in section 1170.18. The Fourth District, for example, reasoned, “Had the intent of
Proposition 47 been to include section 368 [elder abuse] as a crime eligible for
resentencing, section 368 would have been listed in section 1170.18 or amended. . . .
Because Proposition 47 has specified which crimes are subject to resentencing, we reject
defendant's contention Proposition 47 encompasses section 368, which is not listed as
eligible for resentencing . . . . (Gikas v. Zolin (1993) 6 Cal.4th 841, 852) [‘The
expression of some things in a statute necessarily means the exclusion of other things not
expressed . . .’].)” (People v. Bush (2016) 245 Cal.App.4th 992, 1005.) We do not find
this rationale persuasive. Eligibility for resentencing cannot be determined solely by


                                              6
whether the statute under which a person was convicted is listed in section 1170.18. Two
of the statutes listed there (§§ 490.2, 459.5) were added by Proposition 47, so they
necessarily apply to persons were convicted of other crimes, and courts have approved
resentencing under those statutes of persons who were convicted of crimes not listed in
section 1170.18. (See, e.g., People v. Perkins (2016) 244 Cal.App.4th 129, 141 (Perkins)
[petitioner convicted of grand theft under § 487 might be eligible for resentencing under
§ 490.2].) It therefore cannot be correct that the mere nonappearance of a crime of
conviction in the list of statutes contained in section 1170.18 means that a defendant is
ineligible for resentencing under Proposition 47.
       We nevertheless agree that, when read in its entirety, Proposition 47 reflects an
intent to exclude those convicted of section 496d from eligibility for resentencing. When
the voters amended or added statutes that reduced the penalty for other theft-related
crimes in Proposition 47, they expressly stated that the new penalties would apply
“notwithstanding” the continuing existence of other penal statutes that might also
encompass the described offenses. For example, section 459.5, which carved out the new
offense of shoplifting from what had previously been defined as commercial burglary
under section 459, provides that it applies “[n]otwithstanding Section 459.” (§ 459.5,
subd. (a).) Section 490.2, which reduced the penalty for theft of property worth $950 or
less to a misdemeanor, provides that the section applies “[n]otwithstanding Section 487
or any other provision of law defining grand theft.” (§ 490.2, subd. (a).) Section 473,
which reduced the penalty for forgery involving property worth $950 or less, provides
that it applies “[n]otwithstanding” the provision that forgery is a wobbler. (§ 473,
subd. (b); see § 476a, subd. (b) [after defining crime of passing bad checks as a wobbler,
providing “[h]owever, if the total amount . . . [is $950 or less], the offense is punishable
only” as a misdemeanor absent the proscribed prior convictions].)4 Section 496(a),


       4
        The only other theft-related statute listed in section 1170.18, is section 666,
which is distinguishable because it increases the penalty for certain theft crimes if the
defendant has the listed prior convictions. Proposition 47 narrowed the range of prior
convictions that triggered increased penalties under section 666, which makes it not

                                              7
however, does not provide that it applies “notwithstanding” section 496d or any other
penal statute relating to receipt of stolen property.5 “It is a general rule of statutory
construction that ‘[w]hen one part of a statute contains a term or provision, the omission
of that term or provision from another part of the statute indicates the Legislature
intended to convey a different meaning.’ ” (Klein v. United States (2010) 50 Cal.4th 68,
80.) We conclude that if the voters intended section 496(a) to apply to receipt of a stolen
motor vehicle, they would have expressly provided that section 496(a) applies
notwithstanding section 496d, similar to the language they used in sections 459.5 and
490.2. Because they did not, we hold section 496(a) does not apply to receipt of a stolen
motor vehicle worth $950 or less.
       Stevens argues this interpretation of the initiative is inconsistent with the purposes
and overall design of Proposition 47.6 One purpose of the initiative was to “[r]equire
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft”
unless the defendant has the proscribed prior convictions. (Prop. 47, § 3, subd. (3).)
Since Proposition 47 reduced the punishment for stealing a motor vehicle and receiving
any other stolen property worth $950 or less, Stevens argues it must be construed to also
reduce the punishment for receiving a stolen motor vehicle worth $950 or less. He


analogous to the other added and amended statutes discussed ante. The remaining penal
statutes listed in section 1170.18 are simple drug possession offenses under the Health
and Safety Code, for which there was no apparent need to include “notwithstanding”
clauses in the Proposition 47 amendments.
       5
         Section 496(a) includes “however” language, but it refers only to
section 496(a)’s opening language that receipt of stolen property is ordinarily a wobbler.
It does not refer to offenses described in any other penal statute.
       6
         Stevens also argues, curiously, that “section 496, the general statute, should
operate to bring the specific and essentially identical statute, section 496d,
subdivision (a), within the ambit of section 1170.18.” He cites no authority for this
proposition, which seems to conflict with the rule of statutory construction that a
particular or specific provision will take precedence over a conflicting general provision.
(See Warne v. Harkness (1963) 60 Cal.2d 579, 588.) In any event, section 496d is more
specific in that it applies to receipt of stolen motor vehicles whereas section 496 applies
to receipt of any stolen property.


                                               8
suggests the omission of motor vehicles from section 496(a) was a legislative oversight.
He notes that the legislative analysis in the ballot pamphlet informed the voters, “Under
current law, individuals found with stolen property may be charged with receiving stolen
property, which is a wobbler crime. Under this measure, receiving stolen property worth
$950 or less would always be a misdemeanor.” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, p. 35.) The pamphlet did not specify that stolen motor
vehicles would be excluded from this leniency measure.
         We are not persuaded. First, before adoption of Proposition 47, the Legislature
treated receipt of a stolen motor vehicle as an equivalent or more severe offense than
theft of a motor vehicle or receipt of other stolen property. Before Proposition 47, grand
theft was defined to include the theft of any motor vehicle (§ 487, subd. (d)(1)) and was
punishable as a wobbler, with the felony punishment set at 16 months, two years, or three
years in county jail pursuant to section 1170, subdivision (h). (§§ 489, subd. (c), 1170,
subd. (h)(1), (2); see § 486.) Receipt of a stolen vehicle was also a wobbler with the
same felony incarceration penalty but alternatively with a fine of up to $10,000.
(§ 496d.) Before Proposition 47, punishment for receipt of unspecified stolen property
was less severe: the offense was defined as a wobbler with the same felony incarceration
penalty but no fine, and the statute expressly gave prosecutors the discretion to charge the
crime as a straight misdemeanor if the value of the stolen property was $950 or less.
(Former § 496(a), as amended by Stats. 2011, ch. 15, § 372, italics added; see § 1170,
subd. (h)(1), (2).) In light of this statutory history, we do not find it self-evidently absurd
that voters intended to treat receipt of a stolen motor vehicle worth $950 or less more
harshly than receipt of other stolen property or theft of a motor vehicle worth $950 or
less.7


         7
           In contrast, People v. Noyan (2014) 232 Cal.App.4th 657, cited by Stevens, held
omission of section 4573.5 from realignment legislation was a legislative oversight and
an equal protection violation in part because “prior to the Realignment Legislation,
violations of section 4573.5 were punished less severely than violations of section 4573
. . . [but] [s]ince the enactment of the Realignment Legislation, violations of section

                                               9
       Second, it is not difficult to see why the voters might want to treat receipt of a
stolen vehicle more harshly than the other offenses. One plausible reason for the
sentencing disparity between sections 496(a) and 496d is that motor vehicle owners often
depend on those vehicles for transportation to work and school and for obtaining the
necessities of life, which is not as often the case with other forms of property. Moreover,
stolen vehicles are often dismantled and sold for parts in “chop shops,” which can raise
their worth above retail value. The latter reason could also explain the disparity in
sentencing between section 490.2 (theft) as applied to motor vehicles and section 496d
(receipt of stolen vehicle)—punishment for receipt, rather than theft, tends to apply to
such chop shops. Finally, as the People suggest on appeal, the voters might not have
wanted prosecutors to bear a burden of proving the value of stolen motor vehicles in
order to establish felony convictions under section 496, given that most vehicles are
worth more than $950. This would explain the exclusion of motor vehicles from
section 496(a), which operates prospectively as well as retroactively following the
adoption of Proposition 47. (See People v. Solis (2016) 245 Cal.App.4th 1099, 1112–
1113 [exclusion of a lesser included offense from Proposition 47 relief not necessarily
irrational because “lesser included” does not necessarily mean “less serious”].)8
       For the foregoing reasons, we also reject Stevens’s equal protection challenge to
the exclusion of receipt of stolen motor vehicles from resentencing under Proposition 47.
“Where, as here, a disputed statutory disparity implicates no suspect class or fundamental
right, ‘equal protection of the law is denied only where there is no “rational relationship

4573.5 are punished more severely than violations of section 4573.” (Id. at p. 665; see id.
at pp. 663–664, 671.)
       8
         We also reject Stevens’s argument that the rule of lenity requires us to adopt his
preferred construction of the initiative. “ ‘ “The rule of statutory interpretation that
ambiguous penal statutes are construed in favor of defendants is inapplicable unless two
reasonable interpretations of the same provision stand in relative equipoise, i.e., that
resolution of the statute’s ambiguities in a convincing manner is impracticable.” [¶] Thus,
although true ambiguities are resolved in a defendant’s favor, an appellate court should
not strain to interpret a penal statute in defendant’s favor if it can fairly discern a contrary
legislative intent.’ ” (People v. Solis, supra, 245 Cal.App.4th at p. 1112, fn. 8.)


                                              10
between the disparity of treatment and some legitimate governmental purpose.” ’
[Citation.] ‘This standard of rationality does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor must the underlying
rationale be empirically substantiated. [Citation.] While the realities of the subject
matter cannot be completely ignored [citation], a court may engage in “ ‘rational
speculation’ ” as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review “whether or not” any such speculation has “a foundation in the
record.” ’ [Citation.] To mount a successful rational basis challenge, a party must
‘ “negative every conceivable basis” ’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts may not second-guess its
‘ “wisdom, fairness, or logic.” ’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 881.) The plausible reasons for the sentencing disparity discussed ante demonstrate
that the voters had a rational basis to treat Stevens differently from persons eligible for
resentencing under sections 490.2 and 496(a), even assuming Stevens was similarly
situated to those persons.
        We therefore hold that persons convicted under section 496d are not eligible for
resentencing pursuant to section 496(a) even if the stolen vehicles were worth $950 or
less.
B.      Commercial Burglary
        Stevens next argues that his crime of entering a bank with intent to cash a forged
check was “shoplifting” within the meaning of section 459.5, and the trial court erred in
denying him resentencing on that charge. We agree and reverse.9
        Unlike section 496(a), section 459.5 expressly states that it applies
“notwithstanding Section 459” and further provides, “Any act of shoplifting defined in
subdivision (a) shall be charged as shoplifting. No person who is charged with

        9
        Because we so hold, we need not address Stevens’s alternative arguments that he
was entitled to be resentenced under section 490.2 for his burglary conviction, or that
under equal protection principles his offense should be treated the same as check forgery
and writing a bad check and reduced to a misdemeanor. (§§ 473, 476a.)


                                              11
shoplifting may also be charged with burglary or theft of the same property.” (§ 459.5,
subds. (a), (b).)
        Stevens’s petition for resentencing under section 459.5 raises two legal questions.
First, what constitutes entry with “intent to commit larceny” within the meaning of the
shoplifting statute?10 Second, what evidence should the trial court consider in
determining eligibility for Proposition 47 resentencing? We address these questions in
turn.
        1.     “Intent to Commit Larceny” in Section 459.5
        Stevens argues that his burglary offense falls within the statutory definition of
shoplifting because he entered a commercial establishment (a bank) with the intent to
commit larceny (passing a forged check for $450). The People argue that “larceny” in
section 459.5 is limited to common law larceny and does not include other forms of
theft.11 We conclude that sections 490a and 484 compel the conclusion that “larceny”
encompasses all forms of theft and thus agree with Stevens’s interpretation of the statute.
        Section 490a provides that “[w]herever 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.” Section 484,
subdivision (a) provides, “Every person who shall feloniously steal, take, carry, lead, or
drive away the personal property of another, or who shall fraudulently appropriate
property which has been entrusted to him or her, or who shall knowingly and designedly,
by any false or fraudulent representation or pretense, defraud any other person of money,
labor or real or personal property, . . . is guilty of theft.” (Italics added.) Under these
statutes, “intent to commit larceny” in section 459.5 means “intent to commit theft,” and



        10
       The People do not renew on appeal the argument that a bank is not a
“commercial establishment” within the meaning of section 459.5.
        11
          The People’s argument relied, in part, on authority that has been superseded by
a grant of review. (People v. Gonzales (2015) 242 Cal.App.4th 35, review granted
Feb. 17, 2016, S231171.)


                                              12
“theft” includes taking the personal property of another by false pretenses. As we explain
post, Stevens’s crime satisfies the definition of theft by false pretenses.
        The People cite People v. Williams (2013) 57 Cal.4th 776, 786, as authority that
“larceny” in section 459.5 does not include theft by false pretenses. They misconstrue
the case. Williams acknowledged that section 484, subdivision (a) consolidated the
crimes of larceny, theft by false pretenses and embezzlement into a single crime of theft,
and noted that the consolidation “did not change the elements of those offenses.”
(Williams, at p. 786.) “ ‘The purpose of the consolidation was to remove the
technicalities that existed in the pleading and proof of these crimes at common law’ ” (id.
at pp. 785–786, italics added), while leaving “[t]he elements of the several types of theft
included within section 484 . . . [un]changed” under the common law (id. at p. 786.) The
high court, however, held that despite the consolidation statutes the crime of robbery
requires proof of common law larceny as distinct from other forms of common law theft.
Section 490a does not apply to the robbery statute (§ 211), the court explained, because
section 211 refers to a “felonious taking” rather than “larceny.” (Williams, supra,
57 Cal.4th at pp. 786–789.) Further, applying section 490a to the robbery statute would
effectively “alter two of the substantive elements of robbery: asportation and a
trespassory taking,” a result inconsistent with the legislative history of the robbery
statute. (Williams, at pp. 789–790.)
        As other courts have held, Williams’s holding about the definition of robbery has
no bearing on our interpretation of the shoplifting statute. Section 459.5—which refers to
“larceny” rather than “felonious taking”—does not have the same legislative history as
the robbery statute and does not necessarily include the elements of asportation and
trespassory taking. (See Valencia, supra, 245 Cal.App.4th at pp. 734–735; People v.
Root (2016) 245 Cal.App.4th 353, 358–360.) Further, even before enactment of
section 459.5, courts had held that burglary may be based on an intent to commit a form
of theft other than common law larceny. (See People v. Parson (2008) 44 Cal.4th 332,
354.)



                                              13
       The People alternatively argue that “shoplifting” as defined in section 459.5
should be limited to the ordinary lay understanding of “shoplifting.” We agree with
Valencia’s rejection of a similar argument: “While section 459.5 sets forth the new crime
of shoplifting, it does not use that term to define the criminal conduct that constitutes the
offense. Rather than leaving the term ‘shoplifting’ undefined or defining it by reference
to the common meaning of that term, section 459.5 gives it a more technical, legal
definition as a subset of commercial burglary, entry into a commercial establishment
during regular business hours with the intent to commit or committing larceny.”
(Valencia, supra, 245 Cal.App.4th at p. 734.) Courts must apply the statutory rather than
the lay meaning of “shoplifting” when applying section 459.5.
       We conclude that the phrase “intent to commit larceny” in section 459.5 means an
intent to commit any theft listed in section 484, including theft by false pretenses.
       2.     Determining Eligibility Under Proposition 47
       The People contend that the felony of forgery “premised” Stevens’s burglary
conviction, and that he is therefore not eligible for resentencing under section 459.5
because he committed entry with intent to commit forgery, not entry with intent to
commit larceny. The People also argue that Stevens failed to meet his burden of proving
the forged check he tried to cash was for $950 or less. We reject both arguments.
              a.     Relevant Evidence
       As a preliminary matter, we hold that the petitioner bears the burden of producing
evidence that his or her offense would have been a misdemeanor under Proposition 47.
That evidence may come from within or outside the record of conviction, or from
undisputed facts acknowledge by the parties.
       Section 1170.18 establishes a three-step process in a petition for recall of a felony
sentence and misdemeanor resentencing—an eligibility determination, a discretionary
dangerousness assessment, and resentencing. The first step requires the trial court to
“determine whether the petitioner satisfies the criteria [for resentencing] in
subdivision (a).” (§ 1170.18, subd. (b).) “The trial court’s decision on a section 1170.18
petition is inherently factual, requiring the trial court to determine whether the defendant


                                             14
meets the statutory criteria for relief. . . . [Whether] the value of the property defendant
stole disqualifies him from resentencing under sections 459.5 and 1170.18 . . . is a factual
finding that must be made by the trial court in the first instance.” (People v. Contreras
(2015) 237 Cal.App.4th 868, 892.)
       While Proposition 47 does not explicitly allocate a burden of proof, courts
applying Proposition 47 have consistently held that it is a petitioner’s burden to establish
the facts upon which his or her eligibility is based. (People v. Sherow (2015)
239 Cal.App.4th 875, 879–880 [“ ‘ “[a] party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief or defense he is
asserting” ’ ”]; see People v. Bush, supra, 245 Cal.App.4th at pp. 1007–1008; Perkins,
supra, 244 Cal.App.4th at p. 140; People v. Rivas-Colon (2015) 241 Cal.App.4th 444,
449; Evid.Code, § 500.) “[I]t is important to keep in mind a person, like [the petitioner],
was validly convicted under the law applicable at the time of the trial of the felony
offenses. It is a rational allocation of burdens if the petitioner in such cases bears the
burden of showing that he or she is eligible for resentencing of what was an otherwise
valid sentence.” (Sherow, at p. 878.)
       The record of a petitioner’s conviction may suffice to establish a prima facie case
for resentencing, but may well not, particularly where there was no reason for either party
to fix the value of the property stolen when the plea was taken. (See People v. Bradford
(2014) 227 Cal.App.4th 1322, 1333–1334 [prosecutor had no incentive to plead and
prove factors not relevant to a case, but which later became relevant to resentencing
under § 1170.126].) In the latter circumstance, a petitioner may and should submit extra-
record evidence probative of the property’s value when filing for resentencing. (People
v. Sherow, supra, 239 Cal.App.4th at p. 880 [“[a] proper petition could certainly contain
at least [petitioner’s] testimony about the nature of the items taken”]; Perkins, supra,
244 Cal.App.4th at p. 140 [petitioner “should describe the stolen property and attach
some evidence, whether a declaration, court documents, record citations, or other




                                              15
probative evidence showing he is eligible for relief”].)12 “That does not mean there will
be a mini-trial on the value of stolen property in every case, only that offenders may
submit extra-record evidence probative of the value when they file their petitions for
resentencing.” (Perkins, at p. 140, fn. 5.)
       The record of conviction (here, the accusatory pleading, plea agreement, and plea
hearing transcript) does not disclose the exact nature of Stevens’s offense, and Stevens
did not submit extra-record evidence on the issue. However, we conclude that a
Proposition 47 resentencing court may also consider any factual stipulations or clear
agreements by the parties that add to, but do not contradict, the record of conviction.
Here, Stevens stated in his petition for resentencing on the burglary conviction that,
according to the police report, “Stevens entered a Wells Fargo bank and attempted to
cash a forged check for $450.” In opposition, the prosecutor wrote, “The facts, as
summarized in the Pre-Sentence report for October 20, 2014 are as follows: On

       12
           Since the petitioner has the burden of proof on eligibility, it would be patently
unfair to preclude him or her from submitting extra-record evidence that would establish
eligibility for resentencing. In contrast, an resentencing eligibility determination under
the Three Strikes Reform Act of 2012, added by Proposition 36 (§ 1170.126), must be
made by reference to the record of conviction only. (People v. Bradford, supra,
227 Cal.App.4th at p. 1327; People v. Manning (2014) 226 Cal.App.4th 1133, 1141–
1142.) The difference in approach is sensible given the nature of the resentencing
schemes. “Eligibility for resentencing under [the Three Strikes Reform Act] turns on the
nature of the petitioner’s convictions—whether an offender is serving a sentence on a
conviction for nonserious, nonviolent offenses and whether he or she has prior
disqualifying convictions for certain other defined offenses. (§ 1170.126, subd. (e).) By
contrast, under Proposition 47, eligibility often turns on the simple factual question of the
value of the stolen property. In most such cases, the value of the property was not
important at the time of conviction, so the record may not contain sufficient evidence to
determine its value. For that reason, and because petitioner bears the burden on the issue
(Evid.Code, § 500), we do not believe the Bradford court’s reasons for limiting evidence
to the record of conviction are applicable in Proposition 47 cases.” (Perkins, supra,
244 Cal.App.4th at p. 140, fn. 5.) As another example of the distinctions between the two
statutory schemes, at least one court has held that the eligibility determination under
section 1170.126 is a question of law (see People v. Oehmigen (2014) 232 Cal.App.4th 1,
7), but courts have viewed the eligibility determination under section 1170.18 (Prop. 47)
as a question of fact, as noted ante.


                                              16
September 6, 2014, the defendant went into the Wells Fargo Bank and attempted to cash
a forged check in the amount of $450.00.”13 The trial court could properly base its
eligibility determination on these facts acknowledged by both parties.
              b.      “Intent to Commit Larceny” in this Case
       Other courts have held that entering a bank with an intent to cash a forged check is
entry with an intent to commit theft by false pretenses and thus constitutes entry with
“intent to commit larceny” within the meaning of section 459.5 if the value of the check
was $950 or less. (See, e.g., People v. Root, supra, 245 Cal.App.4th at p. 355 [acts of
“enter[ing] banks, during regular business hours, for the purpose of cashing forged
checks in amounts less than $950” qualify as shoplifting under § 459.5]; see also People
v. Williams, supra, 57 Cal.4th at p. 787 [elements of theft by false pretenses].) We agree.
       One court has held on similar facts that a petitioner was not eligible for
resentencing under section 459.5 because he entered with an intent to commit felony
identity theft (§ 530.5, subd. (a)), rather than forgery or petty theft. (People v. Bias
(2016) 245 Cal.App.4th 302, 304–308 [intent basis for burglary charge and conviction
not specified; also charged with forgery (§ 475, subd. (c)) but not identity theft
(§ 530.5)].) We find Bias distinguishable. First, the People argued in Bias that the
petitioner’s offense was entry with intent to commit identity theft (id. at p. 306), whereas
the People do not make that argument in this appeal. Second, the record of conviction in
Bias included more detailed information about the forged check in support of its
conclusion that the petitioner intended to commit identity theft. (Id. at p. 305.) Any such
information is missing here.
       As noted ante, the People argue Stevens’s burglary conviction was “premised” on
forgery not larceny. The record of conviction does not support this contention. The
accusatory pleading charged Stevens with “unlawfully enter[ing] a commercial building

       13
          The October 20, 2014 presentencing report that is in the appellate record does
not disclose the amount of the check. On appeal, the People note the absence of that
information in the report, but they do not note any contrary representation to the trial
court or explain why they should not be bound by the parties’ representations.


                                              17
occupied by WELLS FARGO with the intent to commit larceny and any felony” (italics
added). The italicized phrase tracked the statutory language that defines burglary as entry
with an intent to commit “grand or petit larceny or any felony.” (§ 459.) The stipulated
factual basis for his no contest plea was similar: he “unlawfully enter[ed] Wells Fargo
with the intent to commit larceny and a felony.” Although Stevens was also charged with
check forgery pursuant to section 475, subdivision (a) in the underlying case, that
violation was complete once Stevens “possess[ed] or receive[d]” the forged check with
the intent to pass it—which occurred before he entered the bank.14 (Cf. § 470, subd. (d)
[forgery by “uttering” a false document].)
       Because the only alternative intent to commit burglary suggested by the People
here is forgery, we conclude the record established that Stevens entered with the intent to
commit theft by false pretenses, which constitutes “larceny” within the meaning of
section 459.5. Because both parties acknowledged in the trial court that the check’s value
was less than $950,15 and the status of the bank as a “commercial establishment” is not
contested on appeal, Stevens was eligible for resentencing under section 459.5.
       The People did not argue below, nor do they on appeal, that the trial court should
have exercised its discretion to deny resentencing to Stevens because he posed an
unreasonable risk to public safety. (See § 1170.18, subd. (b).) Therefore, we remand
with directions to reduce Stevens’s burglary conviction to misdemeanor shoplifting
(§ 459.5) and resentence Stevens on all counts accordingly.16


       14
         “Every person who possesses or receives, with the intent to pass or facilitate the
passage or utterance of any forged, altered, or counterfeit items, or completed items
contained in subdivision (d) of Section 470 with intent to defraud, knowing the same to
be forged, altered, or counterfeit, is guilty of forgery.” (§ 475, subd. (a), italics added.)
       15
          The prosecutor not only stated in her opposition brief that Stevens “attempted to
cash a forged check in the amount of $450.00,” but also argued Stevens had to prove
value only with respect to the section 496d conviction—not the section 459 conviction—
in the event the court found Stevens otherwise eligible for resentencing.
       16
          When a defendant is resentenced as a misdemeanant on an eligible count but
will remain sentenced as a felon on one or more other counts, the court should resentence
on all counts. (Couzens et al., Sentencing California Crimes (The Rutter Group 2015)

                                             18
                                    IV.    DISPOSITION
       The trial court’s denial of Stevens’s petition for resentencing regarding his
conviction for receipt of a stolen motor vehicle is affirmed. The trial court’s denial of
Stevens’s petition for resentencing regarding his burglary conviction is reversed. On
remand, the trial court shall recall the sentence, reduce the conviction for burglary to a
section 459.5 misdemeanor, and resentence Stevens accordingly.




§ 25:6(B)(4), p. 25-63.) The only limitation is that “the term” on resentencing may not
be longer than the term originally imposed. (§ 1170.18, subd. (e); see People v. Burbine
(2003) 106 Cal.App.4th 1250, 1253, 1258 [“ ‘an aggregate prison term is not a series of
separate independent terms, but one term made up of interdependent components’ ”].)


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                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.




A144047


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