Filed 6/15/16 P. v. Gallegos 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063786

v.                                                                      (Super.Ct.No. SWF1101186)

JASON ANDREW GALLEGOS,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

         Jared G. Coleman, 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, Scott C. Taylor, and Paige B.

Hazard, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                      INTRODUCTION

       Defendant and appellant Jason Andrew Gallegos appeals from an order denying

his petition for resentencing under section 1170.18.1 In 2011, defendant pleaded guilty to

one count of commercial burglary, a felony, under section 459. The trial court denied

defendant’s petition, finding that the commercial burglary offense did not qualify as

misdemeanor shoplifting under section 459.5. On appeal, the parties focus on the

shoplifting issue, disagreeing sharply on whether defendant’s conviction should be

reclassified from felony burglary to misdemeanor shoplifting. After reviewing the

record, however, we conclude the record of conviction is too limited to find that

defendant has met his burden of proof to justify granting his petition. We affirm the trial

court’s order denying the petition.

                                              II

                    FACTUAL AND PROCEDURAL BACKGROUND

   A. The Underlying Offense of Commercial Burglary

       The record of conviction includes the charging document, the felony plea, and the

hearing transcript. The felony complaint, filed on June 2, 2011, alleged six counts, plus

additional allegations. Counts 1 and 3 alleged that, on April 5, 2011, defendant “did

wilfully and unlawfully enter a certain building located at BRAND X LIQUOR 41740

IVY ST., MURRIETA, with intent to commit theft and a felony.” (§ 459.) Counts 2 and


       1   All statutory references are to the Penal Code unless stated otherwise.

                                              2
4 alleged that, on April 5, 2011, defendant “did wilfully and unlawfully make, pass, utter,

publish, or possess, with intent to defraud any other person, a FRAUDULENT CHECK.”

(§ 476.)

           Count 5 alleged defendant’s possession of methamphetamine, a controlled

substance. (Health & Saf. Code, § 11377, subd. (a).) Count 6 charged defendant with

resisting arrest. (§ 148, subd. (a)(l).) It was further alleged that defendant had one prison

prior (§ 667.5, subd. (b)), and one strike prior (§§ 667, subds. (c) & (e)(l), 1170.12 subd.

(c)(l)).

           There was no preliminary hearing. After initially pleading not guilty, defendant

pleaded guilty on September 22, 2011, to one count of second-degree felony burglary (§

459) and admitted the strike prior. (§ 667, subds. (c) and (e)(1).) Counts 2 through 6

were dismissed in the interests of justice. (§ 1385.) The court sentenced defendant to

two years in prison, which was doubled due to the strike, for a total of four years in

prison.2

    B. The Petition for Resentencing

           On December 10, 2014, defendant filed a petition for resentencing as a

misdemeanant pursuant to section 1170.18. The district attorney responded that

defendant is not entitled to relief because he did not commit a qualifying felony; instead,

he “went into liquor store with stolen checks & tried to cash them. Entered w/ intent to

commit ID theft in addition to larceny.” In opposition, the People maintained that the


           2   Defendant has been released from prison.

                                                3
check-related offenses actually occurred on two days, April 5 and April 8, 2011, and the

store manager had called the police the second time. The People argued defendant did

not meet his burden of proof to show he was guilty of misdemeanor shoplifting (§ 459.5)

rather than felony burglary. (§ 459.)

       In his reply, defendant asserted that the two fraudulent checks listed himself as the

payee and Scottys Tuxedo Warehouse as the payor. He attached photocopies of one

check payable for $400 and one check payable for $550. Defendant asserted he was

eligible for resentencing, arguing he should be resentenced for misdemeanor forgery.

       On May 15, 2015, the court denied defendant’s petition for resentencing. The

court noted that defendant was convicted of burglary, not forgery, and a new additional

category of burglary is shoplifting under section 459.5. The court commented the

dictionary defines shoplifting as “the stealing of displayed goods from a shop.” The

court held the plain meaning of the word should be applied: “Under no plain-meaning

definition of that word do I find that entering any business with the intent to cash a

fraudulent check falls within the plain meaning of the term ‘shoplifting’.” Otherwise,

section 459.5 could have been titled, “Thefts Under $950” instead of “Shoplifting.”

Accordingly, because defendant was convicted of burglary, not forgery, the court found

defendant did not engage in misdemeanor shoplifting as defined in section 459.5, and

was therefore not entitled to relief under section 1170.18. The court denied defendant’s

petition for resentencing.




                                              4
                                               III

                                        DISCUSSION

   A. Standard of Review

        On November 4, 2014, California voters enacted the Safe Neighborhoods and

Schools Act (Proposition 47, or the Act, effective 11/5/14). (People v. Rivera (2015) 233

Cal.App.4th 1085, 1089.) The Act reclassified certain theft- and drug-related crimes

from felonies to misdemeanors unless they were committed by ineligible defendants.

(Rivera, at p. 1091.) It also established a procedure for qualifying defendants to petition

for recall and resentencing of their prior convictions. (§ 1170.18, subd. (a).) If a person

satisfies the statutory criteria, he is eligible to have his sentence recalled and to be

resentenced as a misdemeanant, unless the court, in its discretion, determines that

resentencing the petitioner would pose an unreasonable risk of danger to public safety.

(§ 1170.18, subd. (b); T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2;

People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.)

        Reviewing courts independently determine issues of law, such as the interpretation

and construction of statutory language. (People v. Love (2005) 132 Cal.App.4th 276,

284.) The interpretation of a ballot initiative is governed by the same rules that apply in

construing a statute enacted by the Legislature. (People v. Park (2013) 56 Cal.4th 782,

796.)

        First, the language of the statute is given its ordinary and plain meaning. (Robert

L. v. Superior Court (2003) 30 Cal.4th 894, 901.) Second, the statutory language is

construed in the context of the statute as a whole and within the overall statutory scheme

                                               5
to effect the voters’ intent. (Ibid.) “The drafters of an initiative and the voters who

enacted it are presumed to have been aware of the existing statutory law and its judicial

construction. [Citations.]” (People v. Superior Court (Gevorgyan) (2001) 91

Cal.App.4th 602, 610, disapproved of on other grounds by Guillory v. Superior Court

(2003) 31 Cal.4th 168, 178, fn. 5; see Anderson v. Superior Court (1995) 11 Cal.4th

1152, 1161 [voters are presumed to know the law]; People v. Weidert (1985) 39 Cal.3d

836, 844 [“The enacting body is deemed to be aware of existing laws and judicial

constructions in effect at the time legislation is enacted”].)

       Third, where the language is ambiguous, the court will look to “other indicia of the

voter’s intent, particularly the analyses and arguments contained in the official ballot

pamphlet.” (Robert L. v. Superior Court, supra, 30 Cal.4th at p. 901.) Any ambiguities

in an initiative statute are “not interpreted in the defendant’s favor if such an

interpretation would provide an absurd result, or a result inconsistent with apparent

legislative intent.” (People v. Cruz (1996) 13 Cal.4th 764, 783.)

   B. Section 459.5

       Proposition 47 reduced the penalties for a number of crimes, including second

degree burglary, where a defendant “enters a commercial establishment with the intent to

steal. Such offense is now characterized as shoplifting” under new section 459.5, which

requires shoplifting to be punished as a misdemeanor. (People v. Sherow (2015) 239

Cal.App.4th 875, 879; People v. Contreras (2015) 237 Cal.App.4th 868, 890.)

       Section 459.5 states: “Notwithstanding Section 459, shoplifting is defined as

entering a commercial establishment with intent to commit larceny while that

                                               6
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 the intent to commit larceny is

burglary. . . . “(§ 459.5, subd. (a).) Therefore, shoplifting under section 459.5 requires

the following elements: (1) entry into a commercial establishment; (2) while the

establishment was open during regular business hours; and (3) with the intent to commit

theft. (CALCRIM No. 1703.) If the value of the property taken, or intended to be taken,

is more than $950, the crime constitutes burglary. (§ 459; CALCRIM No. 1700.)

       “The trial court’s decision on a section 1170.18 petition is inherently factual,

requiring the trial court to determine whether the defendant meets the statutory criteria

for relief. For example, 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] open during regular business

hours,’ and whether ‘the value of the property that [was] taken or intended to be taken’

exceeded $950.” (People v. Contreras, supra, 237 Cal.App.4th at p. 892.)

       On appeal, defendant contends that entering a store with the intent to cash

fraudulent checks, not exceeding $950, satisfies the elements of the crime of shoplifting.

The People counter that defendant is not eligible for resentencing because the burglary

was not committed for the purpose of stealing merchandise but for the purpose of passing

a fraudulent check. (See People v. Williams (2013) 57 Cal.4th 776, 780, 788.)

       However, in this case the sparse record of defendant’s conviction does not

establish that defendant entered a commercial establishment to pass a forged check. The

                                             7
record of a conviction based on a guilty plea includes the charging instrument, the

defendant’s guilty plea, and the preliminary hearing transcript if there is one. (People v.

Reed (1996) 13 Cal.4th 217, 223-229.) Here, defendant waived a preliminary hearing.

Accordingly, the record of conviction consists solely of the felony complaint, the change

of plea form, and the transcript of the change of plea hearing. (People v. Roberts (2011)

195 Cal.App.4th 1106, 1120-1123.) Counts 1 and 3 of the complaint do not allege that

the victim, BRAND X LIQUOR, was a commercial establishment or that that the

objective of the burglary was to pass a forged check. The dismissed forgery counts 2 and

4 describe the charged offenses as including the intent to pass a forged check but they do

not refer to BRAND X LIQUOR or any commercial establishment as the locus or the

victim of the crime. Accordingly, the record does not contain any information which

supports the People’s contention that defendant’s burglary does not qualify as shoplifting.

       By the same token, however, the record of conviction also does not demonstrate

that defendant entered for the purpose of stealing merchandise as opposed to passing a

forged check. Nor does it establish that any property defendant stole or intended to steal

was valued at less than $950 or that the store was “open during regular business hours” at

the time the theft occurred. (§ 459.5, subd. (a).) Accordingly, the record of conviction

neither supports nor refutes a factual basis for resentencing under section 1170.18.

                                             IV

                                      DISPOSITION

       Defendant pleaded guilty to commercial burglary. The record of conviction does

not demonstrate defendant was guilty of either shoplifting or check forgery. The trial

                                             8
court correctly found defendant was ineligible for resentencing on shoplifting under

Proposition 47. We affirm the trial court’s denial of the petition for resentencing without

prejudice to filing a new petition for resentencing.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               CODRINGTON
                                                                                          J.

We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.




                                              9
