Filed 11/19/15 P. v. Osborn 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E063108

v.                                                                       (Super.Ct.No. SWF001535)

REX OSBORN,                                                               ORDER MODIFYING OPINION
                                                                          AND DENYING PETITION
         Defendant and Appellant.                                         FOR REHEARING
                                                                          [CHANGE IN JUDGMENT]



THE COURT:

         The petition for rehearing filed by appellant Rex Osborn is denied. It is ordered

that the opinion filed herein on October 28, 2015, be modified as follows:

         On page 6, under section III, at the end of the dispositional sentence, “The order

appealed from is affirmed,” add “without prejudice to subsequent consideration of a

properly filed petition,” so the entire sentence reads as follows: “The order appealed

from is affirmed without prejudice to subsequent consideration of a properly filed

petition.”


                                                             1
      Except for the above modifications, the opinion remains unchanged. This

modification changes the judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                           HOLLENHORST

                                                                          Acting P. J.



I concur:



      KING

                               J.




                                         2
Filed 10/28/15 P. v. Osborn CA4/2 (unmodified version)

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                       E063108

v.                                                                       (Super.Ct.No. SWF001535)

REX OSBORN,                                                              OPINION

         Defendant and Appellant.



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

Affirmed.

         Sylvia W. Beckham, 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, and A. Natasha Cortina,

Meagan J. Beale, and Parag Agrawal, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       Defendant Rex Lane Osborn is currently serving a seven-year prison sentence,

which includes, as relevant here, one year imposed as a prison prior enhancement,

pursuant to Penal Code1 section 667.5, subd. (b), based on a prior felony conviction for

second degree burglary (§ 459). Subsequent to imposition of this sentence, California

voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which among

other things established a procedure for specified classes of offenders to have their felony

convictions reduced to misdemeanors and be resentenced accordingly. (§ 1170.18.) In

this appeal, defendant challenges the denial of his petition for resentencing pursuant to

Proposition 47. He contends the trial court erred by determining he was not eligible for

relief. We affirm.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

       On February 22, 2005, defendant pleaded guilty to one felony count, second

degree burglary, and admitted a prior strike allegation. The underlying felony complaint

had charged defendant with two counts of burglary (§ 459) and two counts of unlawfully

possessing a completed check with intent to defraud (§ 475, subd. (c)), as well as four

prior prison offenses, including one serious felony conviction. The four counts all relate

to the events of February 19, 2002, at a specified bank branch in Hemet, California.

       On December 26, 2014, defendant filed in propria persona a petition pursuant to

section 1170.18, seeking reduction of the 2005 felony burglary conviction to

misdemeanor. Defendant explained that he is currently serving a seven-year prison term,


       1   Further undesignated statutory references are to the Penal Code.

                                              2
on a felony conviction for resisting officers (§ 69), with one year of that term imposed as

a prison prior (§ 667.5, subd. (b)) based on the 2005 second degree burglary conviction.2

On February 4, 2015, the trial court denied defendant’s petition.3

                                    II. DISCUSSION

A. Background Regarding Proposition 47

       On November 4, 2014, voters enacted Proposition 47, and it went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People

v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition

47, may petition for a recall of that sentence and request resentencing in accordance with

the statutes that were added or amended by Proposition 47.” (Id. at p. 1092; see

§ 1170.18, subd. (a).) A person who has already completed a felony sentence for an

       2 The record in this appeal does not include any documents relating to defendant’s
current sentence, such as a copy of the plea agreement (if there was one), the transcript of
the sentencing hearing, a court minute order, or an abstract of judgment. Nevertheless,
the People have not disputed defendant’s characterization of his current sentence,
included in the petition for resentencing and defendant’s briefing on appeal. For present
purposes, therefore, we will accept the parties’ representations regarding defendant’s
current sentence.

       3 Additional facts will be discussed below as necessary to address defendant’s
claims of error.

                                             3
offense that is now a misdemeanor under Proposition 47 “may file an application before

the trial court that entered the judgment of conviction in his or her case to have the felony

conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)

       As relevant to the present case, Proposition 47 added section 459.5, which

provides in part as follows: “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).”

(§ 459.5, subd. (a).) Shoplifting, as newly defined in section 459.5, is a misdemeanor,

unless the offense was committed by certain ineligible defendants. (§ 459.5, subd. (a).)

B. Analysis

       This appeal presents two separate questions. First, is defendant entitled to have

his 2005 burglary conviction designated as a misdemeanor, pursuant to section 1170.18,

subdivision (f)? Second, what effect, if any, does the designation of that prior conviction

as a misdemeanor have on his current sentence, which includes a sentencing

enhancement treating the prior conviction as a felony? Because we answer the first

question in the negative, we need not reach the second.

       An offender may qualify to have a prior felony section 459 conviction designated

a misdemeanor, where the facts show the offense would have been a misdemeanor under

the definition of shoplifting in section 459.5. (See § 1170.18, subd. (a) [listing § 459.5

among other statutes amended or added by Proposition 47]; § 1170.18, subd. (k).)

Nevertheless, defendant bears the burden of showing the facts demonstrating his

                                              4
eligibility for relief under Proposition 47, including the value of the stolen property.

(People v. Sherow (2015) 239 Cal.App.4th 875, 877.)

       The present record does not show defendant’s entitlement to relief. We can

discern from the felony complaint that the conviction at issue related to the burglary of a

commercial establishment during business hours; specifically, defendant entered into a

bank to commit theft by passing a check or similar instrument with intent to defraud.4

(See § 459 [defining burglary]; § 459.5 [defining shoplifting]; § 484 [defining theft].)

Nothing in the record, however, establishes the value of the property defendant was

convicted of stealing.5 (See § 459.5.) As such, defendant has not met his burden of

showing that his felony section 459 conviction would have been a misdemeanor pursuant

to section 459.5, had Proposition 47 been in effect at the time.

       Because we conclude defendant did not meet his burden of showing eligibility for

relief under Proposition 47, we need not consider what effect, if any, the designation of

his prior felony conviction as a misdemeanor might have with respect to his current

offense. We are not inclined—particularly on the present, incomplete record (see fn. 2,

ante)—to issue an advisory opinion on the issue. (See People v. Slayton (2001) 26



       4  The trial court’s finding that defendant’s conviction related to burglary of a
residence is plainly erroneous. Nevertheless, we generally review the trial court’s result,
not its reasoning. (See Town of Atherton v. California High-Speed Rail Authority (2014)
228 Cal.App.4th 314, 354, fn.13.)

       5 The police report, which served as the factual basis for defendant’s 2005 plea, is
not included in the present record, and the felony complaint related to that offense does
not describe the amount defendant was accused of stealing.

                                              5
Cal.4th 1076, 1084 [“As a general rule, we do not issue advisory opinions indicating

‘“what the law would be upon a hypothetical state of facts.”’”].)

                                      III. DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               HOLLENHORST
                                                                        Acting P. J.
We concur:

       MCKINSTER
                                 J.

       KING
                                 J.




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