Filed 12/8/15 P. v. Cooper 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063068

v.                                                                       (Super.Ct.Nos. FSB1003620 &
                                                                          FWV1202728)
LEE MITCHELL COOPER,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Ronald M.

Christianson and Michael A. Smith, Judges. Affirmed.

         Patrick J. Hennessey, Jr., 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, Barry Carlton and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                     INTRODUCTION

       Defendant Lee Mitchell Cooper appeals from orders denying his petitions for

resentencing. He contends his convictions of attempted grand theft (Pen. Code,1 §§ 664,

487, subd. (a)) and second degree burglary of a vehicle (§ 459) should be reduced to

misdemeanors under Proposition 47 and section 1170.18. We affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       Defendant was charged in a felony complaint with receiving a stolen motor

vehicle, a 1987 Chevy Capri. (§ 496d, subd. (a).) In October 2010, defendant entered a

plea of guilty in case No. FSB1003620 to attempted grand theft. (§§ 664, 487, subd. (a).)

He stipulated that the trial court could consider the police reports in the court’s file for the

factual basis for the plea. He was sentenced to a term of eight months in state prison to

run concurrent to his sentence on charges not relevant to this appeal.

       In June 2013, a jury found defendant guilty in case No. FWV1202728 of second

degree burglary of a vehicle. (§ 459.) Allegations of a prior strike conviction

(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior prison term convictions

(§ 667.5, subd. (b)) were found true. Defendant was sentenced to a term of four years in

state prison for the burglary and consecutive one-year terms for each of the three prior

prison term convictions, for a total of seven years in state prison. Victim restitution was

ordered in the amount of $285.




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


                                               2
       Defendant filed petitions in both cases requesting resentencing under

Proposition 47. At the hearing on the petition in case No. FSB1003620, the prosecutor

argued that the dollar amount was $1,500. Defense counsel responded, “Your Honor,

that is what was estimated in the report. This was an attempt, however. So I would ask

the court to still grant the request.” The trial court denied the petition on the ground that

the value of the targeted property exceeded $950.

       The trial court denied the petition in case No. FWV1202728 on the ground that

defendant did not satisfy the criteria in section 1170.18 and was not eligible for

resentencing.

                                       DISCUSSION

       Standard of Review

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

statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to

the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We

construe the statutory language “in the context of the statute as a whole and the overall

statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the

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

pamphlet.’” (Ibid.)

       Proposition 47 and Statutory Amendments

                Overview of Proposition 47 and Section 1170.18

       On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods

and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233


                                              3
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. Section 1170.18 creates a process through

which persons previously convicted of crimes as felonies, which would be misdemeanors

under the new definitions in Proposition 47, may petition for resentencing. (See

generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically,

section 1170.18, subdivision (a), provides: “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] . . . 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, 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].”

              Defendant Has Failed to Establish His Eligibility for Resentencing in

Case No. FWV1202728

       In case No. FWV1202728, defendant was convicted of second degree burglary of

a vehicle under section 459, which provides: “Every person who enters any . . . vehicle

as defined by the Vehicle Code, when the doors are locked, . . . with intent to commit

grand or petit larceny or any felony is guilty of burglary. . . .” He contends that he broke

into a parked vehicle on a commercial lot, and the only damages to the vehicle were a




                                              4
broken window that cost about $285 to repair. He argues that his offense should be

reclassified as a misdemeanor.

        As the petitioner, defendant bore the burden of establishing that he satisfied the

criteria for relief. (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) However, his

petition did not allege that the value of the targeted property was less than $950. Indeed,

as noted, defendant stipulated that the police reports in the court’s file constituted the

factual basis for the plea. The record indicates that the police reports showed that the

value of the targeted property was $1,500. At the hearing on defendant’s petition for

recall of his sentence, his counsel agreed that $1,500 was the amount that was reflected in

the file.

        We conclude the trial court did not err in denying the petition in

case no. FWV1202728 because defendant failed to meet his burden of proving that

the value of the targeted property was less than $950.

               Defendant Has Failed to Establish His Eligibility for Resentencing in

Case No. FSB1003620

        As noted, ante, section 1170.18, subdivision (a), does not list second degree

burglary (§ 459) as an offense eligible for resentencing. However, Proposition 47 added

section 459.5, defining the offense of shoplifting. Section 459.5, subdivision (a), states:

“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




                                              5
taken does not exceed nine hundred fifty dollars ($950). Any other entry into a

commercial establishment with intent to commit larceny is burglary.”

       Defendant argues that entry into a locked vehicle with the intent to commit larceny

is a similar offense to shoplifting with similar elements, and Proposition 47 impliedly

applies to his offense. The Legislature’s inclusion of specific statutory sections, but not

section 459, shows the Legislature intended to exclude section 459. Under the statutory

interpretation canon expressio unius est exclusio alterius, the inclusion of one thing in a

statute indicates exclusion of another thing not expressed in the statute. (People v.

Whitmer (2014) 230 Cal.App.4th 906, 917-918.) Thus, when the items expressed in a

statute are members of an associated group or series, a conclusion is justified that items

not mentioned were excluded by deliberate choice, not inadvertence. (The Formula Inc.

v. Superior Court (2008) 168 Cal.App.4th 1455, 1463.)

       For example, in People v. Gray (1979) 91 Cal.App.3d 545, 551, the court

concluded that the legislative inclusion of only four crimes as exceptions to the sentence

enhancement for great bodily injury in the commission of a felony (§ 12022.7)

demonstrated the legislative intent to exclude other crimes, like attempted murder, from

the list. When a statute lists specific exemptions, courts may not infer additional

exemptions in the absence of a clear legislative intent that such exemptions are intended.

(Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, superseded by statute on another

ground as stated in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th

1086, 1107.) We therefore reject defendant’s contention that his conviction of a violation

of section 459 was eligible for resentencing.


                                                6
                                  DISPOSITION

     The orders appealed from are affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                McKINSTER
                                                            J.
We concur:



RAMIREZ
                    P. J.



HOLLENHORST
                       J.




                                         7
