Filed 11/26/19

                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                      D074352

        Plaintiff and Respondent,

        v.                                       (Super. Ct. No. SCD271876)

BRIAN CHRISTOPHER JENNINGS,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County, Michael S.

Groch, Judge. Affirmed in part, reversed in part and remanded.

        John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Marvin E.

Mizell and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
       Brian Christopher Jennings appeals a judgment following his jury conviction on

four counts of burglary (Pen. Code, § 459)1 and one count of attempted burglary (§§ 664,

459). Jennings challenges only his count 3 burglary conviction, which offense involved

his alleged entry into a commercial establishment with intent to commit larceny while

that establishment was open during regular business hours. Proposition 47, enacted in

2014, created a new misdemeanor offense of "shoplifting," as set forth in section 459.5,

subdivision (a), providing: "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. . . ."

       On appeal, Jennings contends that because the new section 459.5 shoplifting

offense was "carved out" of the general section 459 burglary offense, the prosecution was

required, in the circumstances of this case, to prove that he intended to take property with

a value exceeding $950. He further contends that because there is insufficient evidence

to support a finding that he intended to take property with a value exceeding $950, his

count 3 burglary conviction must be reversed. Alternatively, he contends the trial court

prejudicially erred by not sua sponte instructing the jury on the prosecution's duty to

prove beyond a reasonable doubt the elements of burglary, including proof that he



1      All statutory references are to the Penal Code unless otherwise specified.
                                             2
intended to take property with a value exceeding $950. In his supplemental letter brief,

he argues that newly enacted Senate Bill No. 136, which amended section 667.5,

subdivision (b), to limit its prior prison term enhancement to only prior prison terms for

sexually violent offenses, should be applied retroactively to his case pursuant to In re

Estrada (1965) 63 Cal.2d 740 (Estrada) and therefore his one-year prior prison term

enhancement under section 667.5, subdivision (b), should be stricken.

       As discussed below, we conclude that Proposition 47 changed the definition of

burglary to exclude from that offense an entry of a commercial establishment with intent

to commit larceny of property with a value of $950 or less while that establishment is

open during regular business hours, which conduct now constitutes the misdemeanor

offense of shoplifting under section 459.5. We conclude there is insufficient evidence to

support a finding that Jennings intended to take property with a value exceeding $950

when he entered the commercial establishment in count 3. We further conclude that the

trial court prejudicially erred by not instructing sua sponte on the $950 property value

requirement for the count 3 burglary charge. Finally, we agree Senate Bill No. 136

applies retroactively to Jennings's case pursuant to Estrada and therefore reverse the

court's imposition and execution of a consecutive one-year section 667.5, subdivision (b)

prior prison term enhancement. Accordingly, we reverse his count 3 burglary conviction

and one-year section 667.5, subdivision (b) prior prison term enhancement and remand

for resentencing.




                                             3
                   FACTUAL AND PROCEDURAL BACKGROUND

       An amended information charged Jennings with five counts of burglary (§ 459,

counts 1 through 5) and one count of attempted burglary (§§ 664, 459, count 6). The

amended information also alleged that Jennings: (1) was ineligible for probation pursuant

to section 1203, subdivision (e)(4); (2) had served five prior prison terms within the

meaning of sections 667.5, subdivision (b), and 668; (3) had been convicted of a serious

felony within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7,

subdivision (c); and (4) had been convicted of a serious or violent felony within the

meaning of sections 667, subdivisions (b) through (i), 668, and 1170.12.

       Jennings waived his right to counsel and represented himself at trial. Prior to trial,

he admitted the truth of the prior conviction allegations.

       Count 2.2 At trial, the prosecution presented evidence showing that on December

24, 2016, Jennings committed a burglary of the office of Planck Aero Systems (count 2).

Jennings and a male accomplice took two high-end commercial drones and their two hard

plastic "Pelican" carrying cases from the office. One drone had a hardware value of

about $2,000 and the second drone had a hardware value of about $3,000 to $5,000.

Their retail prices were between $19,000 and $25,000 each.

       Count 3. The prosecution also presented evidence showing that on January 6,

2017, Jennings entered the Discount Hobby Warehouse in Kearny Mesa with a drone.

The store sold radio-controlled (RC) cars, helicopters, and drones. John Weaver, the


2      For purposes of disposing of this appeal, we need discuss only the evidence
regarding the alleged burglaries in counts 2 and 3.
                                              4
store's owner, testified that Jennings asked him whether he could trade the drone for an

RC car or truck. However, Weaver was not interested in the drone and Jennings left the

store without any of the store's merchandise.

       In his defense, Jennings testified that he knew the drone was stolen when he took

the drone to the hobby store. His intent was to get rid of the drone by trading it for "a

small RC or something for my neighbor," explaining that his neighbor had four children.

       Verdict and sentencing. The jury found Jennings guilty on counts 2 through 6.

Because the jury was unable to reach a verdict on count 1, the court declared a mistrial

on, and later dismissed, that count. The court sentenced him to a four-year prison term

for his count 2 burglary, consecutive 16-month terms for each of his other burglary

convictions (counts 3, 4, and 5), a consecutive eight-month term for his count 6 attempted

burglary conviction, and a consecutive one-year term for one of the prior prison term

enhancements, for a total prison term of nine years eight months.3 Jennings timely filed

a notice of appeal. On August 2, 2019, we requested supplemental letter briefs by the

parties on the impact of In re E.P. (2019) 35 Cal.App.5th 792 (E.P.), which opinion was

issued after the parties' briefs were filed in this case. At oral argument on October 18,

2019, we requested supplemental letter briefs to be filed by the parties within 30 days on

the application to this case of Senate Bill No. 136, which was enacted on October 8,

2019, after the parties' briefs were filed in this case.



3     The court struck the punishment for the remaining four prior prison term
enhancements.

                                                5
                                       DISCUSSION

                                               I

                         Proposition 47 and New Crime of Shoplifting

       In November 2014, "the electorate passed initiative measure Proposition 47,

known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for

certain theft and drug offenses by amending existing statutes. [Citation.] The Act also

added several new provisions, including . . . section 459.5, which created the crime of

shoplifting." (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) "Proposition

47 changed the law by defining a new crime of misdemeanor shoplifting and, in effect,

'carving out' this 'lesser crime' from the 'preexisting felony' [of burglary]." (People v.

Colbert (2019) 6 Cal.5th 596, 602 (Colbert), quoting People v. Martinez (2018) 4 Cal.5th

647, 651.) "Through its various provisions, Proposition 47 made clear that certain types

of criminal conduct once punishable as felonies now constitute only misdemeanors."

(Martinez, at p. 651.) The Legislative Analyst explained in the Proposition 47 voter

pamphlet: "Under current law, shoplifting property worth $950 or less (a type of petty

theft) is often a misdemeanor. However, such crimes can also be charged as burglary,

which is a wobbler. Under [Proposition 47], shoplifting property worth $950 or less

would always be a misdemeanor and could not be charged as burglary." (Voter

Information Guide, Gen. Elect. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p.

35, quoted in Gonzales, at pp. 869-870.) Therefore, section 459.5 shoplifting is " 'always'

. . . classified as [a] misdemeanor[] when the value of property [is] $950 or less."

(Gonzales, at p. 870.)

                                              6
        New section 459.5, enacted by Proposition 47, provides:

           "(a) 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. 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."

The new misdemeanor crime of shoplifting "covers conduct that previously would have

been classified as a burglary." (E.P., supra, 35 Cal.App.5th at p. 797.)

        Section 459 defines the offense of burglary, providing in pertinent part that a

"person who enters any . . . store . . . with the intent to commit grand or petit larceny or

any felony is guilty of burglary." However, on its enactment in 2014, "section 459.5

amended section 459 to exclude certain wrongful conduct which previously was second

degree burglary." (E.P., supra, 35 Cal.App.5th at p. 798.) Therefore, a defendant now

cannot "simultaneously commit shoplifting and second degree burglary." (E.P., at p.

798.)

        E.P. stated: "Because a person cannot commit burglary if he actually committed

shoplifting, a prosecutor who wishes to convict a defendant of burglary must prove the

defendant did not commit shoplifting. [Citations.] Evidence the defendant committed

shoplifting disproves the elements of the charged commercial burglary. Under these

circumstances, the court must instruct the jury the prosecution has the burden to disprove

the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction."

                                              7
(E.P., supra, 35 Cal.App.5th at p. 798.) Alternatively stated, to prove that a defendant

committed section 459 burglary based on a theory of intent to commit larceny when

entering a commercial establishment that is open during regular business hours, "the

prosecution [has] the burden of proving beyond a reasonable doubt that [the defendant]

did not commit shoplifting." (Id. at p. 799.)

                                                II

              Insufficient Evidence to Support Count 3 Burglary Conviction

       Jennings contends the prosecution was required, in the circumstances of this case,

to prove that he intended to take property with a value that exceeded $950 to prove his

guilt on the count 3 burglary charge. He further contends that the prosecution did not

meet that burden of proof (i.e., there is insufficient evidence to support a finding that he

intended to take property with a value exceeding $950) and therefore his count 3 burglary

conviction must be reversed. We agree.

                                                A

       When a conviction is challenged on appeal for insufficient evidence to support it,

we apply the substantial evidence standard of review. (People v. Vines (2011) 51 Cal.4th

830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we review the

whole record in the light most favorable to the judgment to determine whether there is

substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at p. 578.)

Substantial evidence is evidence that is reasonable, credible, and of solid value such that

a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People

v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We do not reweigh the evidence, resolve

                                                8
conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran

(2002) 103 Cal.App.4th 8, 13.)

                                              B

       Contrary to the People's assertion, the language and legislative intent of section

459.5 and the cases interpreting that statute support Jennings's assertion that section

459.5 shoplifting is a separate and distinct offense from section 459 burglary. In defining

the new offense of shoplifting, section 459.5, subdivision (a) begins with the introductory

phrase "[n]otwithstanding [s]ection 459," thereby expressly excluding its shoplifting

offense from the section 459 offense of burglary. Section 459.5, subdivision (a) further

provides: "Any other entry into a commercial establishment with intent to commit larceny

is burglary." (Italics added.) If shoplifting and burglary were coextensive offenses, that

statutory language would be superfluous and redundant. (E.P., supra, 35 Cal.App.5th at

p. 798.) Whenever reasonably possible, we must interpret statutes to avoid redundancy

and give significance to each word and phrase. (Pacific Legal Foundation v.

Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114.)

       Proposition 47's voter pamphlet expressed the intent that under new section 459.5,

"shoplifting property worth $950 or less would always be a misdemeanor and could not

be charged as burglary." (Voter Information Guide, supra, analysis of Prop. 47 by Legis.

Analyst, p. 35.) Colbert concluded that section 459.5 "in effect, 'carv[ed] out' [the] 'lesser

crime' [of shoplifting] from the 'preexisting felony' [of burglary]." (Colbert, supra, 6

Cal.5th at p. 602.) Therefore, conduct that violates section 459.5 always constitutes

misdemeanor shoplifting and cannot be punished as section 459 felony burglary. (People

                                              9
v. Martinez, supra, 4 Cal.5th at p. 651; Gonzales, supra, 2 Cal.5th at p. 870; E.P., supra,

35 Cal.App.5th at p. 797.) Colbert stated: "[T]he whole point of section 459.5 is to

redefine a class of burglary offenses as shoplifting." (Colbert, at p. 606.) Accordingly,

contrary to the People's assertion, a defendant now cannot "simultaneously commit

shoplifting and second degree burglary." (E.P., at p. 798.)

       Furthermore, because section 459.5 shoplifting and section 459 burglary are

separate and distinct offenses, when the prosecution has charged a defendant with section

459 burglary in circumstances involving an alleged entry of a commercial establishment

with intent to commit larceny, the prosecution not only has the burden to prove each of

the elements of section 459 burglary, but it also has the burden to disprove that the

defendant committed section 459.5 shoplifting. (E.P., supra, 35 Cal.App.5th at p. 799.)

In particular, in such cases, the prosecutor must prove either: (1) the defendant did not

enter the commercial establishment when it was open during regular business hours; or

(2) the value of the property taken or intended to be taken exceeded $950. (§ 459.5,

subd. (a); E.P., at p. 801 ["the prosecution could have negated a finding of shoplifting by

proving either that the stolen property was worth more than $950 or that [the defendant]

did not enter the locker room when it was 'open during regular business hours' "].) As

Jennings asserts, section 459.5, in effect, made the value of the property that he allegedly

intended to take an element of section 459 burglary in this case and therefore the

prosecution was required to prove beyond a reasonable doubt that he intended to take




                                             10
property worth more than $950 when he entered the store.4 (Cf. People v. Gutierrez

(2018) 20 Cal.App.5th 847, 855 ["to obtain a felony conviction for vehicle theft [under

Veh. Code, § 10851], the People were required to prove as an element of the crime that

the rental car he took was worth more than $950 [as required by § 490.2, subd. (a),

enacted by Proposition 47]."].)

                                             C

       Jennings asserts that because the prosecution did not present any evidence

showing that the value of the property he allegedly intended to take on his entry into the

hobby store exceeded $950, his count 3 burglary conviction must be reversed for

insufficiency of evidence to support it. We agree. The People have not cited, and our

review of the record has not revealed, any evidence that would support a reasonable

inference Jennings intended to take property worth more than $950. Weaver, the store's

owner, testified that he thought the man who entered his store (who Jennings later

admitted was him) "wanted to get rid of [the drone]." Weaver stated that Jennings "sort

of got the impression I probably didn't want to buy [the drone], but he did mention that

maybe he could trade [it] for a model truck. You know, we sell radio-controlled trucks

also. But, again, I wasn't interested in [the drone]." Weaver later testified that Jennings

"mentioned that . . . maybe we could trade [the drone] for an RC car or a truck, actually."

Weaver elaborated: "The only thing I recall was that he was interested in an RC truck. I



4      Jennings does not dispute that he entered the hobby store while it was open during
regular business hours.

                                             11
think he wanted to trade [the drone] for an RC truck." Weaver also testified that Jennings

did not seem familiar with the kind of drone model he had.

       Jennings testified that he knew the drone was stolen and "just want[ed] to get rid

of it." He testified that at the time "[his] thought was, when I went there [i.e., to the

hobby store], if I could get something for -- because my intent was to get a small RC or

something for my neighbor. Because I have a neighbor that has four kids. I wanted to

get something for them to play with." Jennings admitted he was going to take the stolen

drone "to get an RC car for [his] neighbor." However, he did not obtain an RC car for his

neighbor and left the store with the drone. Jennings testified that a couple of days later,

he traded the two drones for a car someone was trying to sell on Facebook. He testified

that before the trade he did not know if the two drones "were valuable enough. I didn't

know what they were worth." After the car owner "looked at them and . . . wanted them,"

the car owner agreed to trade the car for the drones.

       The evidence discussed above does not support a reasonable inference that

Jennings intended to take property worth more than $950 when he entered the hobby

store. First, Weaver did not testify that Jennings was interested in a specific RC car or

truck, much less one that had a stated price exceeding $950. In fact, Weaver did not

testify regarding the price range of the RC cars and trucks that his store had for sale at the

time. Absent any evidence that Jennings was interested in trading the drone for a specific

RC car or truck with a price in excess of $950, there is insufficient evidence to support a

reasonable inference that he intended to take property worth more than $950 when he

entered the store with the drone.

                                              12
       Second, contrary to the People's assertion, the testimony by Joshua Wells, Planck

Aero Systems's chief executive officer, regarding the retail prices of the two drones (i.e.,

between $19,000 and $25,000 each) or their hardware values (between $2,000 and

$5,000) without their expensive installed software, did not show either that Jennings

knew the drones' true value or that he intended to trade one of the drones for an RC car or

truck worth more than $950. In fact, the value of the property Jennings intended to trade

for an RC car or truck (i.e., the drone) was essentially irrelevant to the issue of the value

of the property that he intended to trade it for (i.e., an RC car or truck).5 (Cf. People v.

Pak (2016) 3 Cal.App.5th 1111, 1120 ["[C]onsidering the value of stolen goods brought

into a pawn shop is not consistent with the plain language of the shoplifting statute. Such

property is neither 'taken' nor 'intended to be taken' from the victim pawn shop. It is

already in the defendant's possession. . . . Under the circumstances of this case, the only

property that possibly could be 'taken' or 'intended to be taken' was money from the pawn

shop. Once that money was taken, the relevant value for purposes of the shoplifting

statute became the amount [the defendant] took."].) Therefore, although there was

evidence showing the true value of each drone exceeded $950, that evidence did not

show that Jennings intended to trade the drone for an RC car or truck worth more than

$950. (Ibid.)



5      Likewise, contrary to the People's assertion, Jennings's statements to a police
detective made five months after the alleged burglary that he knew the drones were "high
end" and "custom-made" do not show that Jennings intended to trade one of the drones
for property worth more than $950.

                                              13
       Likewise, contrary to the People's assertion, evidence of Jennings's subsequent

trade of the two drones for a car did not support a reasonable inference that when he

previously entered the hobby store he intended to trade one of the drones for an RC car or

truck worth more than $950. Neither the value of the two drones, as presumably shown

by their market equivalency in a trade for the car, nor the value of that car shows that

Jennings intended to trade one of the drones for an RC car or truck worth more than $950

when he entered the hobby store a couple of days earlier. (Cf. People v. Pak, supra, 3

Cal.App.5th at p. 1120.) In any event, there was no testimony showing the market value

of the car or how that value would be divided between the two drones or, in particular,

the value attributed to the drone Jennings sought to trade for an RC car or truck.

Furthermore, Jennings testified that before the trade for the car he did not know if the two

drones "were valuable enough. I didn't know what they were worth."

       Therefore, we conclude there is insufficient evidence to support a finding that

when Jennings entered the hobby store he intended to trade the drone for property (i.e., an

RC car or truck) worth more than $950.6 (People v. Vines, supra, 51 Cal.4th at p. 869

[substantial evidence standard of review]; People v. Killebrew, supra, 103 Cal.App.4th at


6       To the extent the People argue the prosecution had discretion whether to charge
count 3 as a section 459 burglary or a section 459.5 shoplifting offense, that argument is
irrelevant to the questions of whether the $950 value of the property Jennings allegedly
intended to take is an element of the count 3 burglary charged in this case and whether
there is substantial evidence to support a finding that that element was proved beyond a
reasonable doubt. In any event, because the prosecution clearly lacked any evidence to
prove that value element, it should have exercised its discretion to charge count 3 as a
section 459.5 shoplifting offense and not a section 459 burglary. (People v. Birks (1998)
19 Cal.4th 108, 134 [regarding prosecution's charging discretion generally].)

                                             14
p. 660 [same].) Because the prosecution did not prove that element of burglary and

thereby disprove that Jennings committed section 459.5 shoplifting in the circumstances

of this case, his count 3 burglary conviction must be reversed.

                                              III

                                    Jury Instruction Error

       Jennings alternatively contends that if his count 3 burglary conviction is not

reversed for insufficiency of evidence to support it, the trial court prejudicially erred by

not instructing sua sponte on count 3 burglary that the prosecution had the burden to

prove he intended to take property worth more than $950 when he entered the hobby

store. Although we are not required to address this contention in light of our conclusion

above that there is insufficient evidence to support Jennings's count 3 burglary

conviction, we nevertheless elect to address this issue to provide trial courts with

guidance in future similar cases.

                                              A

       The trial court instructed the jury with the standard CALCRIM No. 1700

instruction on burglary, as follows:

          "The defendant is charged in Counts 1 through 5 with burglary, and
          count 6 with attempted burglary, in violation of Penal Code section
          459.

          "To prove that the defendant is guilty of burglary, the People must
          prove that: [¶] 1. The defendant entered a building, room within a
          building, or structure; [¶] AND [¶] 2. When he entered a building,
          room within a building, or structure, he intended to commit theft.

          "To decide whether the defendant intended to commit theft, please
          refer to the separate instructions that I will give you on the crime.

                                              15
           "A burglary was committed if the defendant entered with the intent
           to commit theft. The defendant does not need to have actually
           committed theft as long as he entered with the intent to do so. The
           People do not have to prove that the defendant actually committed
           theft."

However, the court's instruction on count 3 burglary did not include the additional

language recommended when the evidence in a case supports "a defense theory" that the

crime was instead section 459.5 shoplifting. (Com. to CALCRIM No. 1700.) That

omitted language would have added one of the following elements, or proof

requirements, to the two general elements in the standard CALCRIM No. 1700

instruction:

           "[AND] [¶] [3A. The value of the property taken or intended to be
           taken was more than $950](;/.)] [¶] [OR] [3B. The structure that the
           defendant entered was a noncommercial establishment(;/.)] [¶] [OR]
           [3C. The structure was a commercial establishment that the
           defendant entered during non-business hours.]" (CALCRIM No.
           1700, italics added.)

In the circumstances of this case, the italicized language in paragraph 3A, quoted above,

would have been the appropriate language for the trial court to add to correctly instruct

the jury that the prosecution had the burden to prove the value of the property Jennings

intended to take when he entered the hobby store exceeded $950.

                                               B

       "The trial court has a sua sponte duty to instruct the jury on the essential elements

of the charged offense. [Citation.] [Not instructing on the elements of a charged offense]

is, indeed, very serious constitutional error because it threatens the right to a jury trial that

both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.;

                                               16
Cal. Const., art. I, § 16.) All criminal defendants have the right to 'a jury determination

that the defendant is guilty of every element of the crime with which he is charged,

beyond a reasonable doubt." (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).)

       Furthermore, "[i]t is settled that, even in the absence of a request, a trial court must

instruct on general principles of law that are commonly or closely and openly connected

to the facts before the court and that are necessary for the jury's understanding of the

case. [Citations.] The trial court is [also] charged with instructing upon every theory of

the case supported by substantial evidence, including defenses that are not inconsistent

with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047

(Montoya).) Alternatively stated, "a trial court's duty to instruct, sua sponte, or on its own

initiative, on particular defenses is more limited [than its duty to instruct on lesser

included offenses], arising 'only if it appears that the defendant is relying on such a

defense, or if there is substantial evidence supportive of such a defense and the defense is

not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12

Cal.4th 186, 195, italics added (Barton).)

                                              C

       Jennings asserts that because the prosecution had the burden to disprove that he

committed shoplifting to prove that he committed burglary in the circumstances of this

case, the trial court erred by not sua sponte instructing with a modified version of

CALCRIM No. 1700 that would have included paragraph 3A, quoted above, instructing

the jury that the prosecution had the burden to prove beyond a reasonable doubt that the



                                              17
value of the property he intended to take when he entered the commercial establishment

(i.e., the hobby store) was more than $950. We agree.

       As quoted in part I above, E.P. concluded: "Evidence the defendant committed

shoplifting disproves the elements of the charged commercial burglary. Under these

circumstances, the court must instruct the jury the prosecution has the burden to disprove

the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction."

(E.P., supra, 35 Cal.App.5th at p. 798.) Alternatively stated, to prove that a defendant

committed section 459 burglary based on a theory of intent to commit larceny, "the

prosecution [has] the burden of proving beyond a reasonable doubt that [the defendant]

did not commit shoplifting." (Id. at p. 799.)

       Furthermore, as we stated in part II(B) above, because section 459.5 shoplifting

and section 459 burglary are separate and distinct offenses, when the prosecution has

charged a defendant with section 459 burglary in circumstances involving entry of a

commercial establishment with intent to commit larceny, the prosecution not only has the

burden to prove each of the elements of section 459 burglary, but it also has the burden to

disprove that the defendant committed section 459.5 shoplifting. (E.P., supra, 35

Cal.App.5th at p. 799.) In particular, in such cases, the prosecutor must prove either: (1)

the defendant did not enter the commercial establishment when it was open during

regular business hours; or (2) the value of the property taken or intended to be taken

exceeded $950. (§ 459.5, subd. (a); E.P., at p. 801.) Accordingly, section 459.5, in

effect, made the value of the property Jennings allegedly intended to take an element of

section 459 burglary in this case and therefore the prosecution was required to prove

                                            18
beyond a reasonable doubt that he intended to take property worth more than $950 when

he entered the store.

       Because we have concluded a finding that the value of the property Jennings

intended to take when he entered the hobby store exceeded $950 is an element of section

459 burglary in the circumstances of this case, the court was required to sua sponte

instruct on that element, along with the other elements of burglary. (Merritt, supra, 2

Cal.5th at p. 824.) In any event, assuming arguendo that the value of the property

Jennings intended to take is not an element of the charged burglary offense, the court was

nevertheless required to sua sponte instruct on that factual question as a "general

principle[] of law that [was] commonly or closely and openly connected to the facts

before the court and that [was] necessary for the jury's understanding of the case."

(Montoya, supra, 7 Cal.4th at p. 1047.) Furthermore, to the extent the $950 value of the

property Jennings intended to take was merely a defense to the burglary charge, the court

nevertheless had a duty to sua sponte instruct on that shoplifting defense theory because it

was supported by substantial evidence and not inconsistent with Jennings's theory of the

case. (Ibid.; Barton, supra, 12 Cal.4th at p. 195; cf. Mullaney v. Wilbur (1975) 421 U.S.

684, 704 ["Due Process Clause requires the prosecution to prove beyond a reasonable

doubt the absence of the heat of passion on sudden provocation"]; People v. Banks (1976)

67 Cal.App.3d 379, 384 [because "prosecution must prove beyond a reasonable doubt the

absence of justification, herein self-defense," court erred by giving contrary instruction].)

Because, as we concluded above, there is no substantial evidence to support a finding that

Jennings intended to trade the drone for an RC car or truck worth more than $950, there

                                             19
necessarily is substantial evidence to support a shoplifting theory (i.e., that the property

he intended to take was worth $950 or less). Also, the shoplifting theory was not

inconsistent with any defense theory presented by Jennings at trial. Based on our review

of the record, we conclude the shoplifting theory was consistent with Jennings's defense.

Therefore, under any of the above instructional principles, the trial court had a duty to sua

sponte instruct that the prosecution had the duty to prove beyond a reasonable doubt that

when Jennings entered the commercial establishment (i.e., the hobby store) he intended

to take property worth more than $950. Contrary to the People's assertion, because the

trial court had a sua sponte duty to give that instruction, Jennings was not required to

request that instruction and did not forfeit that instructional error by not requesting it.

(Cf. People v. Mil (2012) 53 Cal.4th 400, 409 (Mil) ["[I]t is well settled that no objection

is required to preserve a claim for appellate review that the jury instructions omitted an

essential element of the charge."].)

                                               D

       We further conclude, as Jennings asserts, that the trial court's instructional error

was prejudicial and requires reversal of his count 3 burglary conviction. "Not instructing

on [the] elements of [an offense] is constitutional error." (Merritt, supra, 2 Cal.5th at p.

824.) "[T]he omission of one or more elements of a charged offense . . . is amenable to

review for harmless error under the state and federal Constitutions . . . ." (Mil, supra, 53

Cal.4th at p. 415.) "A trial court's failure to instruct the jury on all of the essential

elements of the charged offense is reviewed for harmless error according to the standard

set out in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705

                                               20
(Chapman)." (People v. Atkins (2019) 31 Cal.App.5th 963, 980-981 (Atkins).) Under the

Chapman standard, an error is prejudicial and requires reversal of the conviction unless it

appears "beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained." (Chapman, at p. 24.) Accordingly, the error "will be deemed harmless

only in unusual circumstances, such as where each element was undisputed, the defense

was not prevented from contesting any [or all] of the omitted elements, and

overwhelming evidence supports the omitted element." (Merritt, supra, 2 Cal.5th at p.

828, italics added.) Alternatively stated, we must review the record to determine whether

it contains evidence that could rationally lead to a contrary finding with respect to the

omitted element. (Mil, at p. 417.)

       Based on our review of the record in this case, we cannot conclude the court's

instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S.

at p. 24.) As discussed above, there was no evidence presented on the value of the

property (i.e., an RC car or truck) that Jennings allegedly intended to take on his entry

into the hobby store. Therefore, there was no evidence, much less "overwhelming

evidence," to support a finding that he intended to take property worth more than $950

when he entered the store. (Merritt, supra, 2 Cal.5th at p. 828.) Likewise, because

neither the prosecution nor the court informed Jennings that the property's $950 value

was an element of the burglary alleged in count 3, he presumably was not, as a self-

represented defendant, aware of that element. Therefore, that element cannot be deemed

to have been "undisputed" by him, nor can we conclude he "was not prevented from

contesting [that] omitted element[]." (Ibid.) Furthermore, because there was no evidence

                                             21
that the property Jennings allegedly intended to take on his entry into the store was worth

more than $950, the record would support a rational finding that the omitted element was

not shown beyond a reasonable doubt (i.e., a finding that the property was worth $950 or

less). (Mil, supra, 53 Cal.4th at p. 417.) Accordingly, the court's error in omitting an

essential element on the burglary charged in count 3 was not harmless beyond a

reasonable doubt and therefore requires reversal of Jennings's conviction on count 3.

(Chapman, at p. 24; Atkins, supra, 31 Cal.App.5th at pp. 980-981.)

       Assuming arguendo that the court's instructional error did not involve the omission

of an element of the charged burglary offense and instead involved only a failure to sua

sponte instruct on a general principle of law commonly or closely and openly connected

to the facts before the court and necessary for the jury's understanding of the case

(Montoya, supra, 7 Cal.4th at p. 1047) or a failure to sua sponte instruct on the

shoplifting defense theory (ibid.), we nevertheless conclude that error was prejudicial

under either the Chapman standard, discussed above, or under the more lenient state

standard for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836. Under

the Watson standard, an error is deemed harmless if it is not reasonably probable the

defendant would have obtained a more favorable result in the absence of the error. (Ibid.)

However, because our review of the record shows there is no evidence to support a

reasonable finding that the value of the property Jennings allegedly intended to take on

his entry into the hobby store was worth more than $950, the court's error in omitting that

general principle of law or defense theory from its instructions on count 3 burglary was

prejudicial under the Watson standard (i.e., it is reasonably probable he would have

                                             22
obtained a more favorable verdict on count 3 had the court correctly instructed on that

count). (Watson, at p. 836.) Furthermore, because of the absence of evidence that the

property he allegedly intended to take (i.e., an RC car or truck) was worth more than

$950, we likewise conclude that instructional error was also prejudicial under the

Chapman standard. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, regardless of the

classification of the court's instructional error, that error was prejudicial under both the

Chapman and Watson standards and therefore Jennings's conviction on count 3 must be

reversed. (Chapman, at p. 24; Watson, at p. 836.)

                                              IV

                                     Senate Bill No. 136

       In his supplemental letter brief, Jennings contends, and the People agree, that

Senate Bill No. 136, which was enacted on October 8, 2019, and becomes effective on

January 1, 2020, applies retroactively to his case pursuant to the Estrada rule. We agree.

                                              A

       Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to

impose a one-year sentence enhancement for each true finding on an allegation the

defendant had served a separate prior prison term and had not remained free of custody

for at least five years. (§ 667.5, subd. (b).) Courts nevertheless had discretion to strike

that enhancement pursuant to section 1385, subdivision (a). (People v. Bradley (1998) 64

Cal.App.4th 386, 392-395.) Effective as of January 1, 2020, Senate Bill No. 136 amends

section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior

prison terms for sexually violent offenses, as defined in Welfare and Institutions Code

                                              23
section 6600, subdivision (b). (Sen. Bill No. 136, § 1; Cal. Const., art. IV, § 8, subd. (c);

Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute

enacted at regular session of Legislature generally becomes effective on January 1 of year

following its enactment].)

                                              B

       In Estrada, the California Supreme Court held that a statute that reduces the

punishment for an offense will generally apply retroactively to any case in which the

judgment is not yet final before the effective date of the statute. (Estrada, supra, 63

Cal.2d at pp. 742, 744-745.) Estrada stated: "When the Legislature amends a statute so

as to lessen the punishment it has obviously expressly determined that its former penalty

was too severe and that a lighter punishment is proper as punishment for the commission

of the prohibited act. It is an inevitable inference that the Legislature must have intended

that the new statute imposing the new lighter penalty now deemed to be sufficient should

apply to every case to which it constitutionally could apply. The amendatory act

imposing the lighter punishment can be applied constitutionally to acts committed before

its passage provided the judgment convicting the defendant of the act is not final." (Id. at

p. 745.) Estrada stated: "[W]here the amendatory statute mitigates punishment and there

is no saving clause, the rule is that the amendment will operate retroactively so that the

lighter punishment is imposed." (Estrada, at p. 748; see People v. Hajek and Vo (2014)

58 Cal.4th 1144, 1195.) "Estrada represents 'an important, contextually specific

qualification to the ordinary presumption that statutes operate prospectively: When the

Legislature has amended a statute to reduce the punishment for a particular criminal

                                             24
offense, we will assume, absent evidence to the contrary, that the Legislature intended the

amended statute to apply to all defendants whose judgments are not yet final on the

statute's operative date.' " (People v. Hajek and Vo, at pp. 1195-1196.) The Estrada rule

also applies to statutory amendments reducing the penalty for, or allowing a court to

strike, an enhancement. (Cf. People v. Jones (2019) 32 Cal.App.5th 267, 272-273;

People v. Valenzuela (2018) 23 Cal.App.5th 82, 87-88; People v. Chavez (2018) 22

Cal.App.5th 663, 708-712.) For purposes of the Estrada rule, a judgment is not final so

long as courts may provide a remedy on direct review. (In re Pine (1977) 66 Cal.App.3d

593, 594.)

                                               C

       By eliminating section 667.5, subdivision (b) enhancements for all prior prison

terms except those for sexually violent offenses, the Legislature clearly expressed its

intent in Senate Bill No. 136 to reduce or mitigate the punishment for prior prison terms

for offenses other than sexually violent offenses. (Cf. Estrada, supra, 63 Cal.2d at pp.

742, 744-745.) Therefore, we conclude, and the parties agree, that under the Estrada

rule, Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies

retroactively to all cases not yet final as of its January 1, 2020, effective date. Because

Jennings's case will not be final as of that date, he is entitled to the ameliorative benefit of

Senate Bill No. 136's amendment to section 667.5, subdivision (b). Therefore, we

reverse the one-year section 667.5, subdivision (b) prior prison term enhancement, which

the court imposed and executed for a prior prison term for an offense other than a

sexually violent offense.

                                              25
       Because we reverse Jennings's count 3 conviction and his one-year section 667.5,

subdivision (b) prior prison term enhancement, we remand the matter for resentencing to

allow the court to exercise its sentencing discretion in light of the changed circumstances.

(Cf. People v. Buycks (2018) 5 Cal.5th 857, 893.) We take no position on how the court

should exercise its discretion on remand.

                                      DISPOSITION

       The defendant's burglary conviction on count 3 and one-year section 667.5,

subdivision (b), prior prison term enhancement are reversed. In all other respects, the

judgment is affirmed. The matter is remanded for resentencing consistent with this

opinion.

                                                                               HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



GUERRERO, J.




                                            26
