Filed 7/5/16 P. v. Camargo CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063204

v.                                                                       (Super.Ct.No. BLF1400228)

NIGEL THOMAS CAMARGO,                                                    OPINION

         Defendant and Appellant.




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

Affirmed.

         Steven L. Harmon, Public Defender, Laura B. Arnold, Deputy Public Defender,

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 Marilyn L.

George, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Nigel Thomas Camargo appeals the denial of his motion

to reconsider his petition to reduce his second degree conviction of burglary (Pen. Code,

§§ 459, 460)1 to a misdemeanor pursuant to Proposition 47. For the reasons stated

below, we affirm the order without prejudice.

                                               I

                    FACTUAL AND PROCEDURAL BACKGROUND

       On September 18, 2014, a felony complaint was filed charging defendant with

burglarizing the Salud Corporation (Penal Code, § 459; count 1) located in the city of

Blythe; possession of a controlled substance, to wit, acetaminophen and codeine

phosphate (Tylenol 3) (Health & Saf. Code, § 11350, subd. (a); count 2); and petty theft

with a prior from “Dr. David Brooks/Salud Corporation” of 608 prescription tablets of

Tylenol 3 with three prior theft-related prior convictions (Penal Code, §§ 459, 484,

subd. (a), 666, subd. (a); count 3).

       On September 25, 2014, pursuant to a negotiated plea agreement, defendant pled

guilty to second degree burglary (count 1) and petty theft with a prior (count 3). In

return, count 2 was dismissed and defendant was sentenced to the agreed upon term of

three years eight months in county jail.2




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

       2 In two other matters, defendant pled guilty to misdemeanor trespassing and
admitted to violating probation.


                                               2
       On November 4, 2014, voters enacted Proposition 47, entitled “the Safe

Neighborhoods and Schools Act” (hereafter Proposition 47). It went into effect the next

day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47

classifies as misdemeanors certain drug- and theft-related offenses that previously were

felonies or “wobblers,”3 unless they were committed by certain ineligible defendants.

(§ 1170.18, subd. (a).)

       Proposition 47 also included a provision that allows certain offenders to seek

resentencing. Defendants who are serving a sentence for a felony that would have been a

misdemeanor had Proposition 47 been in effect at the time of the offense may file a

petition for recall of sentence. (§ 1170.18.)

       On December 2, 2014, defendant filed a petition for resentencing asking the

court to reduce his second degree burglary conviction to a misdemeanor pursuant to

section 1170.18.4 The People filed a brief response to the petition asserting defendant

was not entitled to relief because a “[doctor’s office is] not a commercial establishment.

Entered doctor’s office & stole medication from storage room.”

       On January 30, 2015, the trial court summarily denied the petition, noting “459 PC

2nd—theft from Doctors Office.”

       On March 19, 2015, defendant filed a motion to reconsider the summary denial of

his section 1170.18 petition with declaration and attachments. Defendant argued that a

       3   A “wobbler” is a crime that can be charged as either a felony or a misdemeanor.

       4   Defendant’s petition failed to mention his petty theft with a prior conviction.


                                                3
doctor’s office was a “commercial establishment,” and therefore under Proposition 47,

his crime constituted shoplifting as provided in section 459.5. Attached to the motion

were copies of Blythe City Code Ordinances. The motion noted that the Blythe Code of

Ordinances define “administrative/professional services, medical services, and retail sales

stores as ‘Commercial’ uses for zoning purposes” and therefore “the city of Blythe itself

has decreed by ordinance that a doctor’s office is as much a ‘commercial establishment’

as a retail sales store.”

       On March 30, 2015, the People filed an opposition to defendant’s motion, arguing

that a doctor’s office was “not a ‘commercial establishment’ within the meaning of

section 459.5.”5 The People asserted that since the Penal Code did not define the

meaning of “commercial establishment,” the court should “utilize the plain,

commonsense meaning” of the term. The People noted that one dictionary definition of

“ ‘commercial’ ” is “ ‘pertaining to commerce’ ”; that “ ‘commerce’ ” is defined as the

“ ‘buying and selling of goods’ ”; and that the dictionary definition of “shoplifting” is

“ ‘to steal goods on display from a store.’ ” The People concluded that “the newly-

defined [sic] crime of shoplifting does not apply to entries into a doctor’s office,” noting

that in this case, the items were stolen out of the doctor’s back supply room.

       The hearing on defendant’s motion to reconsider the denial of his petition to recall

his sentence and for resentencing was held on March 30, 2015. At that time, the court


       5 The People conceded defendant’s petty theft with a prior conviction (count 3)
was “eligible for a reduction” to a misdemeanor.


                                              4
stated it had denied the initial request because defendant had stolen from a doctor’s

office, which the court determined was not a commercial establishment, noting its main

job is a service. The court added that it recalled “it wasn’t even that he went into the

front of the doctor’s office that was engaged in business, I think he entered an upstairs

section of a storage part of a doctor’s office.”

       The court further explained: “You are not entering into the establishment where

the commercial part of it is happening. [¶] So, number one, I don’t find a doctor’s office

is a commercial establishment, but, secondly, he had to enter into the storage area of a

doctor’s office, and I believe it was literally on the second floor of the doctor’s office, not

even where the doctor’s office was doing business. [¶] So for all those reasons, I’m

going to deny the motion. I think it’s appropriate that it’s not eligible. I don’t think

Prop 47 intended it to be eligible.”

       Defendant’s counsel disputed the storage room being on the second floor, noting

the store room was “comparable to a storage room like at a Best Buy or Target.” Defense

counsel objected on the record to the court’s factual determination the storage room was

on the second floor, noting the court was looking beyond the record of conviction. The

court replied that it may have obtained the information in a declaration in support of

an arrest warrant, which is part of the record, and that it did not rely on the police

reports.6 The court also noted that when it accepted defendant’s guilty plea, it was not

anticipating Proposition 47, and was only looking for a factual basis that defendant

       6   The record does not contain any police reports or arrest warrant declarations.


                                               5
entered a building with an intent to steal. The court added, “And even if it wasn’t

upstairs, it was in a storage part of the doctor’s office that was not where they even

practice. But even if it—even so, I don’t think a doctor’s office is included.”

                                             II

                                       DISCUSSION

       Defendant argues that the trial court violated its own protocol as well as his due

process rights when it summarily denied his section 1170.18 petition without notice and

the opportunity to be heard. He further asserts that the trial court erred in denying his

motion to reconsider his section 1170.18 petition because its factual determination of

ineligibility was not supported by competent admissible evidence. Finally, he argues his

felony conviction for second degree burglary based on his theft of 608 tablets of

acetaminophen and Tylenol 3 from a doctor’s office supply room may be reduced to

misdemeanor shoplifting under section 459.5.

       The People respond that defendant’s first claim is moot as the trial court ultimately

conducted a hearing on his section 1170.18 petition; that burglary is not one of the

Penal Code sections that qualifies for resentencing; and that a doctor’s office is not a

“commercial establishment.” The People further argue that defendant’s separate entry

into a store room within the doctor’s office with the intent to steal was a burglary and that

defendant failed to show the value of the pills he stole was less than $950 as required by

section 1170.18.




                                              6
       A.     Standard of Review

       When interpreting a voter initiative, we apply the same principles that govern

statutory construction. (People v. Briceno (2004) 34 Cal.4th 451, 459 (Briceno); People

v. Rizo (2000) 22 Cal.4th 681, 685-686.) We first look “ ‘ “to the language of the statute,

giving the words their ordinary meaning.” ’ ” (Briceno at p. 459; Rizo at p. 685.) “ ‘The

statutory language must also be construed in the context of the statute as a whole and the

overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the

language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the

analyses and arguments contained in the official ballot pamphlet.” [Citation.]’

[Citation.] In other words, ‘our primary purpose is to ascertain and effectuate the intent

of the voters who passed the initiative measure.’ ” (Briceno, supra, at p. 459.) Our

review is de novo. (California Chamber of Commerce v. Brown (2011) 196 Cal.App.4th

233, 248.)

       B.     Overview of Proposition 47 and Section 1170.18

       As previously noted, on November 4, 2014, voters approved Proposition 47,

which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085,

1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or

wobblers to misdemeanors for qualified defendants and added, among other statutory

provisions, section 1170.18. (People v. Contreras (2015) 237 Cal.App.4th 868, 889-

890.) Section 1170.18 creates a process through which qualified persons previously

convicted of crimes as felonies, which would be misdemeanors under the new definitions



                                             7
in Proposition 47, may petition for resentencing. (See generally People v. Lynall (2015)

233 Cal.App.4th 1102, 1108-1109.)

       Specifically, Penal Code section 1170.18 provides: “(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 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 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 this act.”

       “A person who satisfies the statutory criteria shall have his or her sentence

recalled and be ‘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.’ ([Penal Code, § 1170.18], subd. (b).)” (People v. Lynall, supra, 233

Cal.App.4th at p. 1109.)

       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.” (Ballot Pamp., Gen.

Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Pamphlet).)




                                              8
       C.     Defendant’s Offenses

       Before Proposition 47 was passed, defendant was charged with, and pleaded

guilty to “wilfully and unlawfully” entering a “certain building located at Salud

Corporation . . . with [the] intent to commit theft and a felony” (italics omitted) in

violation of section 459. Section 459 defines burglary as the unauthorized entry into a

variety of locations with the intent to commit a felony or petit larceny. The crime

defendant committed was breaking into a doctor’s office supply room and stealing 608

Tylenol 3 tablets. The term “commercial” became relevant in the context of the crime of

burglary only after the enactment of Proposition 47, which created the new crime of

“shoplifting,” a misdemeanor offense that punishes certain conduct that previously would

have qualified as a burglary. Now codified at section 459.5, the statute added by the

initiative provides: “(a) Notwithstanding Section 459 [the burglary statute], 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. . . . [¶] (b) Any act of shoplifting as

defined in subdivision (a) shall be charged as shoplifting. No person who is charged with

shoplifting may also be charged with burglary or theft of the same property.” (Pamphlet,

text of Prop. 47, § 5, p. 71.) The ballot pamphlet for Proposition 47 explained that

“[u]nder current law, shoplifting property worth $950 or less (a type of petty theft) is



                                              9
often a misdemeanor. However, such crimes can also be charged as burglary, which is a

wobbler. Under this measure, shoplifting property worth $950 or less would always be a

misdemeanor and could not be charged as burglary.” (Pamphlet, analysis of Prop. 47,

p. 35.)

          Section 1170.18 clearly states that a defendant must show he was convicted of a

felony but would have been convicted of a misdemeanor if Proposition 47 had been in

effect at the time of the offense. For an offense under section 459.5, which was added to

the Penal Code, defendant had to allege facts in the petition that he would have been

guilty of a misdemeanor violation of section 459.5 rather than the felony conviction.

          In this case, defendant failed to prove, or to allege any facts to support, the value

of the 608 Tylenol 3 tablets was less than $950. The petitioner has the burden of

establishing eligibility for relief under section 1170.18. (People v. Sherow (2015) 239

Cal.App.4th 875, 879-880 (Sherow).)

          In Sherow, supra, 239 Cal.App.4th 875, the court observed that “Proposition 47

does not explicitly allocate a burden of proof.” (Id. at p. 878.) The court stated that

“applying established principles of statutory construction we believe a petitioner for

resentencing under Proposition 47 must establish his or her eligibility for such

resentencing” (ibid.) and therefore must “show the property loss . . . did not exceed

$950 and thus fell within the new statutory definition of shoplifting.” (Id. at p. 877.)

The court noted the well-settled principle that “ ‘ “[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



                                                10
defense he is asserting” ’ ” (id. at p. 879) and explained, “ ‘[t]he petitioner will have the

initial burden of establishing eligibility for resentencing under section 1170.18[,

subdivision] (a): i.e., whether the petitioner is currently serving a felony sentence for a

crime that would have been a misdemeanor had Proposition 47 been in effect at the time

the crime was committed. If the crime under consideration is a theft offense under

sections 459.5 . . . or 496, the petitioner will have the additional burden of proving the

value of the property did not exceed $950.’ ” (Sherow, supra, at p. 879, quoting Couzens

& Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (Feb. 2015)

<http://www.courts.ca.gov/documents/Prop-47-Information.pdf> [as of Aug. 11, 2015]

p. 40.) The court further noted, “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; accord, People v. Rivas-Colon

(2015) 241 Cal.App.4th 444, 449 (Rivas-Colon).) Thus, “[a] proper petition could

certainly contain at least [defendant’s] testimony about the nature of the items taken. If

he [or she] made the initial showing the court can take such action as appropriate to grant

the petition or permit further factual determination. [Citation.]” (Sherow, supra, at

p. 880.) We believe the court in Sherow reached the correct result on the issue, and we

adopt the analysis and conclusion of that court.

       In Rivas-Colon, supra, 241 Cal.App.4th 444, citing Sherow, supra, 239

Cal.App.4th 875, the court rejected the defendant’s argument that the prosecution had the

burden of establishing the value of the property was more than $950. (Rivas-Colon, at



                                              11
p. 449.) The defendant in Rivas-Colon had stipulated to a factual basis for the plea

contained in the police report, which listed the value of the property he removed from a

store as $1,437.74. (Id. at p. 447.) The appellate court explained that the defendant had

not provided any evidence or argument demonstrating that he was eligible for

resentencing and therefore the trial court properly denied his resentencing petition. (Id. at

pp. 447-448.)

       Here, defendant’s petition gave the trial court no information on the value of the

stolen property. He has thus failed to show his eligibility for resentencing. (Sherow,

supra, 239 Cal.App.4th at p. 878-880; Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-

450; § 1170.18, subd. (b) [“the court shall determine whether the petitioner satisfies the

criteria in subdivision (a)”] & subd. (g) [court must designate the offense as a

misdemeanor “[i]f the application satisfies the criteria”].) As such, the court properly

denied defendant’s resentencing petition.

       In his reply brief, defendant argues the People forfeited any claim regarding the

value of the stolen property; that the People’s reliance on Sherow is misplaced; and that

the use of the superior court’s petition form for mandatory use indicated his belief the

value of the property in question did not exceed $950. We reject these assertions. We

agree with the reasoning in both Sherow and Rivas-Colon. These courts’ analyses are

consistent with the well-established rule set forth in Evidence Code section 500, which

reads: “Except as otherwise provided by law, 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



                                             12
that he is asserting.” (See People v. Barasa (2002) 103 Cal.App.4th 287, 295-296 [under

Evidence Code section 500, defendant has the burden of proving that his drug possession

or transportation was for personal use and that he was therefore eligible for sentence

reduction under Proposition 36]; People v. Atwood (2003) 110 Cal.App.4th 805, 812

[under Evidence Code section 500, “[t]he burdens of producing evidence and of

persuasion flow from a party’s status as a claimant seeking relief”].) Defendant is the

party who petitioned for relief, and therefore he had the initial burden of demonstrating

eligibility under section 1170.18, subdivision (a). Accordingly, we reject defendant’s

forfeiture claim.

       A due process argument has also been soundly rejected in Sherow, supra, 239

Cal.App.4th 875. The Sherow court explained that due process is relevant to the initial

prosecution for an offense, not resentencing under Proposition 47. Resentencing

concerns people who have already been proven guilty of their offense beyond a

reasonable doubt. (Sherow, supra, at p. 880.) In any event, a defendant, like in the

instant case, has an opportunity to present briefing to the trial court on the issue of value.

Defendant’s petition could have contained facts, evidence, and arguments regarding the

value of the property, but the petition was devoid of any such facts, evidence, or

arguments. (See Sherow, supra, at p. 880.)




                                              13
       Based on the foregoing, defendant was not entitled to resentencing under

section 1170.18 because he did not meet his burden of showing he was eligible for

resentencing under Proposition 47.7

       In his reply brief, defendant argues that “No justification has ever been offered, in

the trial court or on appeal, as to the denial of his request for resentencing as to the felony

petty theft count.” However, defendant never petitioned the trial court to reduce his petty

theft with a prior conviction to a misdemeanor. Defendant’s petition for resentencing and

application for reduction to misdemeanor only notes his second degree burglary

conviction. Section 1170.18 provides a petition or an application must be filed to secure

the reduction to a misdemeanor. Section 1170.18 specifies that a defendant must file a

petition, and it describes a procedure for the trial court to make its ruling. Here, although

a petition had been filed under section 1170.18 as to his second degree burglary

conviction, the petitioner failed to seek reduction of his petty theft with a prior conviction

to a misdemeanor. As such, the trial court never determined whether the petty theft with

a prior conviction would be a misdemeanor under Proposition 47.

       Defendant is essentially asking this court on appeal that we should declare his

petty theft with a prior conviction to be a misdemeanor. Nonetheless, “the plain language

of section 1170.18 set forth above demonstrates that both for persons who are currently


       7 Having reached this result, we need not consider the parties arguments relating
to whether or not a doctor’s office is considered a “commercial establishment” within the
meaning of Proposition 47. We express no opinion on what evidence the trial court may
consider when ruling on a petition for resentencing brought pursuant to section 1170.18.


                                              14
serving a sentence for a felony reduced by Proposition 47, and for those who have

completed such a sentence, the remedy lies in the first instance by filing a petition to

recall (if currently serving the sentence) or an application to redesignate (if the sentence

is completed) in the superior court of conviction. [Citations.]” (People v. Diaz (2015)

238 Cal.App.4th 1323, 1331-1332, citing People v. Shabazz (2015) 237 Cal.App.4th 303,

313-314 [plain meaning of section 1170.18 requires person who has completed sentence

for a Prop. 47 crime to file an application in the superior court]; People v. Awad (2015)

238 Cal.App.4th 215, 220 [section 1170.18 vests the trial court, not the appellate court,

with authority to reduce a felony for person currently serving a sentence].) Accordingly,

we cannot provide the remedy defendant seeks as to his petty theft with a prior

conviction, and he has an effective remedy in the trial court.

                                             III

                                       DISPOSITION

       The order denying defendant’s petition for resentencing is affirmed without

prejudice to subsequent consideration of a properly filed petition. (Sherow, supra, 239

Cal.App.4th at p. 881.)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 RAMIREZ
                                                                                           P. J.
We concur:

McKINSTER
                           J.

MILLER
                           J.


                                             15
