Filed 2/11/16 P. v. Todd CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                             C078684

                   Plaintiff and Respondent,                                    (Super. Ct. Nos.
                                                                             NCR76668, NCR90756)
         v.

HOWARD MONROE TODD,

                   Defendant and Appellant.




         Defendant Howard Monroe Todd filed a petition pursuant to Penal Code section
1170.181 to recall the sentences in 2009 and 2014 convictions for second degree burglary
of a commercial establishment. This provision provides retrospective relief in accord
with the prospective redesignation of certain offenses as misdemeanors in a 2014 voter



1 Undesignated statutory references are to the Penal Code.



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initiative. As to these three convictions, the trial court denied the petition, finding they
were not eligible for retrospective reduction to misdemeanors.2

       Defendant contends that the prosecutor failed to rebut the presumption that the
conduct underlying his 2009 conviction (which he labels “the Purple Rose Café” case)
was the least offense included in section 459, which is akin to the new misdemeanor of
shoplifting less than $950 in property during the regular business hours of a commercial
establishment (§ 459.5) enacted as part of the 2014 initiative. He further argues that the
factual basis for his 2014 plea to second degree burglary and possession of stolen
property (the “Shell/7-Eleven” case) also established violations of section 459.5. He
claims he is thus entitled as a result to resentencing of all three counts of conviction under
section 459.5 as misdemeanors. He also contends that the trial court erred in failing to
appoint counsel to litigate his eligibility, elicited statements from him at the hearing on
the petition in violation of his privilege against self-incrimination, and should be directed
to appoint counsel in the event we reverse and remand the order denying the petition. We
shall affirm the order.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In December 2014, after the enactment of section 1170.18, defendant filed his
form petition (which appears to be a form that the trial court drafted). It asserted his 2014
convictions, for which he had received a sentence of three years eight months in county
jail, had been reclassified under this statute as misdemeanor violations of section 459.5
and section 496, and he did not represent an unreasonable risk of danger to public safety
(§ 1170.18, subd. (c)). He therefore requested the court to resentence him accordingly.
The petition did not include any other supporting information about the 2014 convictions,



2 The trial court granted the petition as to an August 2013 conviction in a third case and
gave defendant credit for time served, which consequently is not part of this appeal.


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or include any information about the 2009 or 2013 convictions. The prosecution’s form
response simply checked the box asserting that the “specified offenses are not eligible”
for resentencing. It also did not include any supporting information.

       At the hearing on the petition, the prosecutor was present. Defendant appeared in
propria persona. Defendant asserted that in the 2014 convictions, he had “used a bank
card at a store . . . [and i]t was under $100.” The prosecutor responded that “use[ of]
stolen credit cards to commit the theft . . . is not classic shoplifting” coming within
section 459.5. The prosecutor also asserted that the 2009 conviction involved a theft
outside of ordinary business hours. Defendant did not offer any rebuttal to this
characterization. As noted in footnote 2, ante, the trial court reduced the 2013 conviction
(for a violation of § 496) to a misdemeanor and otherwise denied the petition as to the
2009 and 2014 convictions.

                                       DISCUSSION

       The parties allude to a broad range of facts underlying the convictions in the 2009
and 2014 cases. However, the parties do not establish that the trial court took any of
these materials into consideration in making its ruling. We do note that the trial judge
who ruled on the petition was the trial judge who received defendant’s guilty plea on the
first day of trial in the 2014 case—the stipulated factual basis of which was a police
report—and sentenced him to county jail and mandatory supervision (with a consecutive
term for the violation of probation in the 2013 case). However, other trial judges
received defendant’s July 2009 guilty plea—the stipulated basis of which was the
transcript of the preliminary hearing—and granted probation in August 2009 after
suspending imposition of sentence. (After a fourth violation, yet another trial judge
ultimately revoked probation in Mar. 2013 and imposed sentence.) We will address the
extent to which any of this is pertinent anon.



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       We note at the outset that the People contend section 1170.18 cannot apply to a
negotiated plea. Authority is to the contrary. (T.W. v. Superior Court (2015)
236 Cal.App.4th 646, 651.) Although the People ask that we come to a different
conclusion, we note that this holding has not been the subject of any criticism since it was
filed in April 2015, and has been followed in Harris v. Superior Court (2015)
242 Cal.App.4th 244, 248, petition for review pending, petition filed December 28, 2015,
S231489. Absent good reason, we will adhere to it.

       Defendant asserts the absence of any evidence introduced in connection with the
petition inures to the detriment of the prosecution, because defendant believes that his
limited representations in the petition were sufficient to demonstrate his entitlement
prima facie to relief, at which point it was the prosecution’s burden to produce evidence
of his ineligibility. He is incorrect.

       Unlike section 1170.126, which is primarily concerned—in defining a defendant’s
eligibility for resentencing of an indeterminate life sentence imposed for recidivism under
section 667, subdivision (e)—with the nature on their face of the commitment and prior
convictions,3 section 1170.18 is entirely concerned with whether the conduct underlying
a prior conviction would be one of the specified misdemeanors in subdivision (a) (or
included by operation of law under one of the specified misdemeanors). In particular,
this involves a showing that the value of the property involved in the prior conviction is
less than $950. As a result, a defendant does not establish eligibility prima facie absent a
showing in a petition (whether evidentiary, or by means of a declaration at least based on
information and belief) that the prior conviction meets these criteria. (People v. Sherow



3 The exception disqualifies a defendant for conduct underlying these convictions if it
involves personal use of a firearm, being armed with a firearm or deadly weapon, or an
intent to inflict great bodily injury. (§ 1170.126, subd. (e)(2) [cross-referencing § 667,
subd. (e)(2)(C)(iii)].)


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(2015) 239 Cal.App.4th 875, 879-880 (Sherow) [based on principle that party has burden
of proof of facts essential to claim for relief, a petition devoid of any showing that prior
conviction eligible for resentencing is insufficient]; accord, People v. Rivas-Colon (2015)
241 Cal.App.4th 444, 449 [rejecting a claim that defendant is presumptively entitled to
relief absent prosecution’s proof to contrary].) As noted above, defendant’s petition is
devoid of any showing that his prior convictions satisfy the criteria of section 1170.18.
The trial court was therefore entitled to make a summary denial of the petition without
holding a hearing (cf. People v. Oehmigen (2014) 232 Cal.App.4th 1, 7 (Oehmigen)
[§ 1170.126]). As a result, any of the representations at that hearing (none of which
amounted to stipulations regarding the underlying conduct) are irrelevant to the
disposition of the petition. (People v. Triplett (Feb. 8, 2016, C078492) ___ Cal.App.4th
___, ___ [2016 Cal.App. Lexis 92 at pp. *10-*11, *13, *17-*18].) We therefore do not
need to reach defendant’s doubtful contention that the trial court should have first advised
him of his privilege against self-incrimination before making his statements about the
circumstances of the Shell/7-Eleven case in attempting to establish eligibility.

       Given that the trial court’s own form failed to communicate to defendant the need
to establish the conduct underlying his prior convictions in order to demonstrate his
eligibility for relief, it would be appropriate to affirm the order “without prejudice to
subsequent consideration of a proper[] . . . petition.” (Sherow, supra, 239 Cal.App.4th at
p. 881.) We therefore return to the other facts included in the record on appeal to decide
whether this would be an idle act.

       We will hazard a presumption that a busy trial court would recall the factual basis
for a plea over which it presided. The factual basis (the police report) for the
Shell/7-Eleven case is not part of the record on appeal. However, the probation report
(which we emphasize would not properly be part of the record of conviction for the
purpose of determining defendant’s eligibility for resentencing (Oehmigen, supra,


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232 Cal.App.4th at p. 5)), purported to summarize its contents. The victim discovered
that her debit card was missing, and there were two unauthorized charges on her
statement. The amounts were slightly over $16 and $28. The owner of the 7-Eleven
identified defendant as the person using the debit card in a surveillance video. When
contacted, defendant returned the victim’s debit card to the police, but claimed someone
else had given it to him to use with authorization to sign her name. Whether or not this
constitutes a larceny for purposes of section 459.5 by operation of section 490a4 is at
least debatable (People v. Triplett, supra, ___ Cal.App.4th at p. ___ [2016 Cal.App.
Lexis 92 at pp. *14-*18], a point not properly before us at present. In any event,
defendant should have the opportunity to make a proper showing of the facts underlying
the offense and litigate the question of whether this conduct is a misdemeanor under
section 459.5. If these facts arguably establish eligibility, defendant is entitled to counsel
for the purpose of input in the form of briefing on the issue. (Cf. Oehmigen, supra,
232 Cal.App.4th at p. 7 [§ 1170.126].)

       As for the Purple Rose Café case, the factual basis was the transcript of the
preliminary hearing, which again is not included in the record on appeal. However, the
probation report purported to summarize the police reports, which asserted that defendant
had been involved as a passenger in a traffic stop in which the police found a flat-screen
television in the back seat as to which everyone disclaimed any ownership interest. The
owner of the Purple Rose Café had reported the television and other items were missing
when he arrived to open the establishment and found the door pried open. Defendant was
a former employee who admitted committing the crime at 4:00 a.m. (claiming he felt his



4 Section 490a provides, “Wherever any law or statute of this state refers to or mentions
larceny, embezzlement, or stealing, said law or statute shall hereafter be read and
interpreted as if the word ‘theft’ were substituted therefor.” Fraudulent use of an access
card is a form of theft. (§ 484g.)


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Christmas bonus had been inadequate). Therefore, even if the value of the television may
have been less than $950, it would be an idle act to give leave to file a new petition with
respect to this conviction unless defendant can establish that, contrary to the probation
report’s summary, the police report indicates it in fact occurred during regular business
hours.

                                       DISPOSITION

         The order denying the petition to recall sentence is affirmed without prejudice to
the subsequent consideration of a proper petition in case No. NCR90756.




                                                         BUTZ                  , J.



We concur:



         BLEASE               , Acting P. J.



         DUARTE               , J.




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