Filed 2/2/16 P. v. Allen 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063474

v.                                                                       (Super.Ct.No. SWF1302061)

ERIC CHRISTIAN ALLEN,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed.

         Jan B. Norman, 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, Eric A. Swenson and Kristine A.

Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Eric Christian Allen appeals after the trial court denied

his petition for resentencing under Penal Code section 1170.18. Defendant argues that

the trial court mistakenly believed defendant had been convicted of an offense for which

resentencing is not allowed, and the court therefore erred in denying his petition.

Defendant is correct; the order is reversed, and the matter is remanded for a new hearing

on defendant’s petition for resentencing.

                        FACTS AND PROCEDURAL HISTORY

       In July 2013, defendant took some beer kegs from a brewery/restaurant, and

delivered them to a recycling center for recycling. As a result, defendant was charged by

a felony complaint with second degree burglary (Pen. Code, § 459) and receiving stolen

property (Pen. Code, § 496). In August 2013, defendant pleaded guilty to count 2, the

receiving stolen property charge.

       In January 2015, defendant filed a petition for resentencing pursuant to Penal

Code section 1170.18. The trial court denied defendant’s petition on the ground that the

recycling center was not a “commercial establishment” for purposes of Penal Code

section 1170.18. Although defendant’s petition plainly indicated that the conviction

offense was for receiving stolen property, the People’s response incorrectly stated that

defendant sought resentencing for a conviction of “459 PC,” i.e., burglary. The

prosecutor may have been misled by an error in the minutes of the plea hearing,

indicating that defendant had pled guilty to “Count(s) 1,” second degree burglary; in fact,

he pled guilty to count 2, receiving stolen property. Taking its cue from the People’s

response, the trial court conducted a hearing on the petition, focusing on the issue of


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whether the purported burglary involved a noncommercial establishment. The court

found that the recycling center was not a commercial establishment; a burglary is

permitted to be reclassified and resentenced as misdemeanor shoplifting under a new

section, Penal Code section 459.5, if the burglary consisted of theft from a commercial

establishment, and if the value of the property taken did not exceed $950. Accordingly,

the court denied defendant’s petition for resentencing.

       Defendant appealed.

                                         ANALYSIS

       Defendant contends, and the People concede, that the trial court’s ruling was

erroneous because it was based upon the assumption that his conviction was for burglary,

rather than for receiving stolen property.

       On November 4, 2014, California voters approved Proposition 47, The Safe

Neighborhoods and Schools Act, which went into effect the following day. (People v.

Diaz (2105) 238 Cal.App.4th 1323, 1327-1328.) Proposition 47 reduced certain

nonserious, nonviolent felonies to misdemeanors. It added and amended sections of the

Penal Code to achieve this aim.

       Subdivision (a) of Penal Code section 1170.18, provides in pertinent part:

“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]

that added this section . . . had [Proposition 47] 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,


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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].” Under Penal Code section 1170.18, subdivision (b), the trial court first

determines whether the petition has presented a prima facie case for relief under Penal

Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria in

subdivision (a), then he will be resentenced to a misdemeanor, unless the court, within its

discretion, determines the petitioner would pose an unreasonable risk to public safety.

(Pen. Code, § 1170.18, subd. (b).)

       Penal Code section 459.5 was added by Proposition 47, and provides for a new

misdemeanor offense of shoplifting. It provides in part: “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. . . .” (Pen. Code, § 459.5, subd. (a).)

       Here, the prosecutor and the trial court mistakenly believed that defendant’s

petition was based on a conviction of burglary, for which he sought reduction to

misdemeanor shoplifting; for that reason, the hearing on his petition was focused on

whether the theft involved a commercial establishment and whether the property taken

exceeded the value of $950.




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       As the People observe in the respondent’s brief, “Because [defendant] was

convicted of receiving stolen property, not burglary, it was irrelevant whether the

recycling center was a commercial establishment. Instead, the relevant question was

whether the value of the property exceeded $950.”

                                      DISPOSITION

       The order denying defendant’s petition for resentencing is reversed. The matter is

remanded for a new hearing on defendant’s petition for resentencing. Because

defendant’s conviction was for receiving stolen property, the relevant inquiry is whether

the value of the property exceeded $950. (See Pen. Code, § 496, subd. (a).) In addition,

the court may consider whether resentencing defendant would pose an unreasonable risk

of danger to public safety. (Pen. Code, § 1170.18, subd. (b).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 McKINSTER
                                                                                            J.
We concur:



RAMIREZ
                       P. J.



MILLER
                          J.




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