Filed 1/27/16 P. v. Morales 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062734

v.                                                                       (Super.Ct.No. FSB1204501)

STEPHEN MORALES,                                                         OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Brian S.

McCarville, Judge. Affirmed.

         Rex Adam Williams, 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, Peter Quon, Jr., and Quisteen S.

Shum, Deputy Attorneys General, for Plaintiff and Respondent.




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         Defendant and appellant Stephen Morales was charged by felony complaint with

second degree commercial burglary. (Pen. Code,1 § 459, count 1.) The complaint also

alleged that defendant had served two prior prison sentences. (§ 667.5, subd. (b).)

Pursuant to a plea agreement, defendant pled guilty to count 1. The parties stipulated that

the police reports provided a factual basis for the plea. The court dismissed the

remaining allegations. In accordance with the agreement, the court then sentenced

defendant to a two-year split sentence and released him on mandatory supervision.

(§ 1170, subd. (h).) The court later revoked defendant’s mandatory supervision after

finding that he violated its terms. The court then imposed the previously suspended

sentence of two years in state prison.

         Defendant filed a petition for resentencing pursuant to section 1170.18

(Proposition 47). The court found him ineligible for relief and denied the petition.

Defendant now appeals from the denial of his petition for resentencing. We affirm.

                                  FACTUAL BACKGROUND2

         On October 7, 2012,3 about 2:00 p.m., police officers responded to a silent alarm

at an elementary school, where they saw a male sitting at a table near a classroom. The

officer asked if anyone was inside, and he responded affirmatively. Defendant then came

         1   All further statutory references will be to the Penal Code, unless otherwise
noted.

         2   The facts are taken from the probation officer’s report.

         3
       We note that the probation report states the burglary occurred on July 7, 2012.
However, the felony complaint alleges the burglary occurred on October 7, 2012.


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quickly out of a door. Another male was found inside the building wearing a pair of

athletic socks, as if they were gloves. Inside the classroom, storage cabinets had been

rummaged through, and there were items on the ground. There was a backpack on a desk

with a printer inside of it. There was also a 50-gallon trash bag that contained the

classroom stereo, tapes, a CD player, and a speaker system.

                                      DISCUSSION

     The Court Properly Found Defendant Ineligible for Relief Under Proposition 47

       Defendant argues that the court erred in denying his Proposition 47 petition,

claiming that the record establishes he was guilty of shoplifting (§ 459.5) and not

commercial burglary (§ 459), “as there was no allegation or admission of an intent to take

property exceeding $950 in value or entry outside of normal business hours.” We

conclude that the court properly denied defendant’s petition.

       A. Relevant Law

       On November 4, 2014, voters enacted Proposition 47, and it went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug-and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition



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47, may petition for a recall of that sentence and request resentencing in accordance with

the statutes that were added or amended by Proposition 47.” (Id. at p. 1092.) Proposition

47 added section 459.5, the crime of shoplifting, as a misdemeanor. (People v. Contreras

(2015) 237 Cal.App.4th 868, 890; §§ 459.5, 1170.18, subd. (a).)

       B. Defendant Failed to Establish His Eligibility for Relief

       Defendant admits that he pled guilty to second degree commercial burglary, yet

argues that “the People failed to establish [that his] plea was to a commercial burglary

rather than shoplifting within the meaning of section 459.5.” He specifically asserts that

“[n]othing in the charging documents or the guilty plea itself establishes an entry into the

establishment outside of normal business hours or an intent to take property valued at

more than $950.” Defendant appears to be arguing that the prosecution failed to show

that his offense was not shoplifting. He concludes that, “[c]onsequently, the record of

conviction established [] shoplifting under section 459.5, but not a commercial burglary

under section 459.” Defendant’s claim is meritless.

       First, defendant was charged with second degree commercial burglary (§ 459), not

shoplifting (§ 459.5).{ct 1} Section 459 provides that “[e]very person who enters any

house, room, . . . or other building, . . . with intent to commit grand or petit larceny or any

felony is guilty of burglary.” On the other hand, section 459.5 provides that “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).”



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(§ 459.5.) The record shows that defendant pled guilty to second degree commercial

burglary. (§ 459.) “[A] guilty plea constitutes an admission of every element of the

offense charged and constitutes a conclusive admission of guilt. [Citation.] It waives a

trial and obviates the need for the prosecution to come forward with any evidence.”

(People v. Turner (1985) 171 Cal.App.3d 116, 125.) Thus, the record of conviction

establishes that defendant was guilty of second degree commercial burglary. (§ 459.)

          Second, defendant failed to establish eligibility for resentencing under section

1170.18. “[A] petitioner for resentencing under Proposition 47 must establish his or her

eligibility for such resentencing.” (People v. Sherow (2015) 239 Cal.App.4th 875, 878.)

Thus, defendant had the burden of showing that the offense of which he was convicted

qualified as shoplifting under the definition contained in the newly enacted section 459.5.

Specifically, he had to show the value of the property taken or intended to be taken did

not exceed $950, and that he entered a commercial establishment while it was open

during regular business hours. (§ 459.5.) He did not provide any supporting

documentation with his petition and did not cite to the record or other evidence. In other

words, defendant simply failed to satisfy his burden to show that he was eligible for

relief.

          We further note that, as discussed above, “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).” (§ 459.5, subd. (a), italics



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added.) The probation report reflects that the offense here involved defendant entering a

school classroom to steal items of school property. Moreover, the offense was alleged to

have occurred on October 7, 2012, which was a Sunday.4 Thus, the record reflects that

defendant did not enter a commercial establishment that was open during regular business

hours. (§ 459.5.)

       We conclude that the court properly denied defendant’s Proposition 47 petition.

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                               HOLLENHORST
                                                                         Acting P. J.


We concur:


KING
                          J.


MILLER
                          J.




       4 By order filed on September 14, 2015, this court took judicial notice of the fact
that October 7, 2012, was a Sunday. (Evid. Code, §§ 452, subds. (g), (h).)


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