Filed 11/3/15 Certified for publication as modified 12/3/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                               DIVISION TWO


THE PEOPLE,                                                     B261189

        Plaintiff and Respondent,                               (Los Angeles County
                                                                Super. Ct. No. BA382238)
        v.

JUAN CARLOS AMAYA,

        Defendant and Appellant.




        APPEAL from an order of the Superior Court of Los Angeles County.
Kristi Lousteau, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Affirmed in part, reversed in part, and remanded with directions.

        Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Robert M.
Snider, Deputy Attorneys General, for Plaintiff and Respondent.


                                       _______________________
       In a felony complaint filed by the Los Angeles County District Attorney’s Office,
defendant and appellant Juan Carlos Amaya was charged with six counts of second
degree commercial burglary with intent to commit larceny, each a violation of Penal
Code section 459.1 The burglaries occurred on the premises of six different business
establishments, namely party supply stores. According to his preconviction probation
report, appellant admitted entering each party supply store and renting tables and chairs
without any intention of returning them.
       Appellant pleaded no contest to all six charges. The trial court accepted the plea
and found appellant guilty. He was sentenced to three years formal probation on
conditions, including 60 days of work for the California Department of Transportation
(Caltrans), and to make direct victim restitution, totaling $4,540.2
       On January 26, 2012, appellant failed to appear in court. The trial court revoked
his probation and issued a bench warrant.
       On June 3, 2013, appellant returned to court. On June 17, 2013, he admitted that
he was in violation of probation for not reporting to the probation office, not working for
Caltrans, and not paying restitution. The trial court reinstated probation and ordered that
appellant serve 180 days in the county jail forthwith, with presentence custody credit for
17 days actually in jail and 17 days in conduct credit. He was ordered to report to
probation within two days of his release from custody. His work requirement was
deleted.
       On December 2, 2013, appellant again failed to appear in court. The trial court
again revoked appellant’s probation and issued a bench warrant.
       On December 8, 2014, appellant returned to court. About two weeks later, he
admitted that he was again in violation for not reporting to probation. He said that he had


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

2      Appellant was ordered to pay direct restitution to the victims in counts one
through five in amounts less than $950 each and to the victim in count six in the amount
of $2,200.

                                              2
not paid any restitution for about 14 months. The trial court reinstated appellant’s
probation with the modification that he serve an additional 32 days in the county jail,
with credit for time already served. Appellant then made an oral motion to reduce “this”
to a misdemeanor under Proposition 47. The trial court denied the motion.
       Appellant timely appealed from the order denying his Proposition 47 petition.
                                        DISCUSSION
       Appellant contends that the trial court erred when it denied his petition to reduce
his felony burglary charges to misdemeanor shoplifting, a violation of new section
459.5.3
       Section 1170.18, subdivision (a), provides, in relevant part, that a “person
currently serving a sentence for a conviction . . . of a felony or felonies who would have
been guilty of a misdemeanor under the act that added this section . . . 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.” At issue in this appeal is whether appellant’s
oral motion satisfies the statutory requirement of a “petition.” We conclude that, in this
case, it does.
       The statute does not specify that the petition be filed or that it be in writing. The
underlying elements of five of the six counts fall within the scope of section 459.5,
subdivision (a): Appellant entered a commercial establishment with intent to commit
larceny while that establishment was open during regular business hours and the property
taken did not exceed $950. And, there is no evidence or argument that appellant posed
“an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) Because
appellant satisfies the criteria in section 1170.18, subdivision (a), he must be resentenced
to a misdemeanor on counts one through five4 under section 459.5. (§ 1170.18, subd. (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”].)


3      New section adopted November 5, 2014.
4      Appellant agrees that he is not entitled to the requested relief for count six.

                                               3
       In urging us to affirm, the People point out that appellant made an oral motion; he
did not file a written petition. But, as noted above, there is no statutory requirement for
the filing of a written petition. And the People fail to cite any legal authority to support
their construction of the word “petition” necessarily always means “written petition.”
The statutes cited by the People, which also use the term “petition,” are different because,
by their express language, they contemplate a document in writing. (See, e.g., §§ 851.8
[petition for destruction of arrest records must be served], 1474 [petition for writ of
habeas corpus must be signed], 4852.01 [eligibility for “filing” petition for certificate of
rehabilitation and pardon].) Similar language is not found in section 1170.18.
       The People also direct us to the fact that appellant did not specify which offenses
he sought to have reduced; he only asserted that he wanted to reduce “this” to a
misdemeanor. While appellant’s motion is arguably vague, it is clear what relief
appellant was requesting.
                                      DISPOSITION
       The order on counts one through five is reversed. The matter is remanded to the
trial court with directions to issue a new order changing appellant’s commercial burglary
offenses (§ 459) to misdemeanor shoplifting (§ 459.5). The order on count six is
affirmed.




                                                  _____________________________, J.
                                                        ASHMANN-GERST
We concur:



____________________________, P. J.               _____________________________, J.
           BOREN                                            HOFFSTADT




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Filed 12/2/15
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                         DIVISION TWO


THE PEOPLE,                                            B261189

        Plaintiff and Respondent,                      (Los Angeles County
                                                       Super. Ct. No. BA382238)
        v.
                                                       ORDER MODIFYING OPINION;
JUAN CARLOS AMAYA,                                     DENYING PETITION FOR
                                                       REHEARING; AND CERTIFYING
        Defendant and Appellant.                       OPINION FOR PUBLICATION

                                                      [CHANGE IN JUDGMENT]


THE COURT:*

      It is ordered that the opinion filed herein on November 3, 2015, be modified as
follows:

        At the end of the third paragraph on page 3, after the sentence “We conclude that,
in this case, it does,” add as footnote 4 the following footnote:
                  4
                    Based on the arguments raised in the appellate briefs, it appears the parties
                  presumed that the only issue on appeal was whether appellant’s petition was
                  properly denied because it was not filed in writing. In the People’s petition
                  for rehearing, for the first time, the People argue that appellant does not
                  qualify for resentencing, pursuant to People v. Gonzales (Nov. 12, 2015,
                  D067554) 2015 Cal.App. Lexis 1006 (Gonzales) and People v. Williams
                  (2013) 57 Cal.4th 776 (Williams). Tailoring our decision to the arguments
                  raised in the appellate briefs, we only determine that a defendant’s petition
                  for resentencing may be made orally. On remand, the trial court is directed

*       BOREN, P. J., ASHMANN-GERST, J., HOFFSTADT, J.
              to consider appellant’s petition, including any arguments made by the
              People pursuant to Gonzales and Williams.

       On page 3, the fourth full paragraph beginning “The statute does not specify” is
deleted in its entirety.

      On page 4, the second sentence of the first full paragraph, the words “as noted
above” are deleted, so the sentence now reads:

              But, there is no statutory requirement for the filing of a written petition.

       On page 4, in the first sentence of the second full paragraph, add as footnote 5, the
following footnote after the words “sought to have reduced”:
              5
                  Appellant agrees that he is not entitled to the requested relief for count six.

       On page 4, under the heading Disposition, the second sentence beginning, “The
matter is remanded” is deleted and replaced with:

              The matter is remanded to the trial court with directions to consider
              appellant’s oral petition.

       This modification changes the judgment.

       Respondent’s petition for rehearing is denied.

        The opinion in the above-entitled matter filed on November 3, 2015, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.

       CERTIFIED FOR PUBLICATION.




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