Filed 6/7/16 P. v. Graham CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B265704

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA052648)
         v.

RORY GRIFFIN GRAHAM,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Cynthia
L. Ulfig, Judge. Affirmed.

         Law Offices of Daniel I. Kapelovitz and Daniel I. Kapelovitz, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and
Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.




                                ___________________________________
       Rory Griffin Graham appeals from a denial of his petition for resentencing under
Proposition 47, the Safe Neighborhoods and Schools Act (Pen. Code, § 1170.18;1
Proposition 47). We affirm.
                                           FACTS
       Graham pled no contest to one count of felony conspiracy to commit second
degree commercial burglary on September 22, 2004. (§§ 182, 459.) He was sentenced to
134 days in Santa Barbara County Jail and granted three years supervised probation.
On May 18, 2015, Graham filed a petition for resentencing pursuant to Proposition 47.
(§ 1170.18, subds. (b) & (g).) Graham sought to have his felony sentence recalled and
his felony designated a misdemeanor pursuant to section 1170.18, subdivisions (a)
through (e).
       On May 18, 2015, the trial court denied the petition after considering the parties’
arguments regarding whether Proposition 47 applied to conspiracy convictions and after
reviewing the police report. It did not address Proposition 47’s application to conspiracy
convictions. Instead, it reasoned, “this does not seem . . . to the court this is a casual user
that was just going in to steal something, it appears there were drugs involved, there were
other items involved, and there was a thought process beyond that of going in and
stealing an item because he was hungry. [¶] . . . the court does not feel it falls within the
category as designated pursuant to Penal Code section 1170.18(a) through (e).”
Graham timely appealed.
                                       DISCUSSION
       Section 1170.18, the statute implementing Proposition 47, reclassifies certain
felony theft offenses to misdemeanors—specifically, those set forth in sections 459.5
(shoplifting), 473 (forgery), 476a (insufficient funds), 490.2 (petty theft), 496 (receiving
stolen property), and 666 (thefts with prior convictions). (§ 1170.18, subd. (a).) Section
1170.18 also authorizes persons who have been convicted of those enumerated offenses
and who have completed their sentences to apply to the trial court “to have the felony

1
       All further section references are to the Penal Code unless otherwise specified.

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conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).)
The petitioner has the initial burden of establishing eligibility for resentencing under
section 1170.18, subdivision (a), by demonstrating the crime would have been a
misdemeanor had Proposition 47 been in effect at the time the crime was committed
and the value of the property did not exceed $950. (People v. Sherow (2015) 239
Cal.App.4th 875; People v. Rivas-Colon (2015) 241 Cal.App.4th 444.)
       Graham contends on appeal he is eligible for resentencing under Proposition 47
because it applies to conspiracy counts when the underlying offense is Proposition 47
eligible. We review the matter de novo to the extent it involves a question of statutory
construction. (People v. Tran (2015) 61 Cal.4th 1160, 1166.)
       The Fourth District in People v. Segura (2015) 239 Cal.App.4th 1282 (Segura),
recently held Proposition 47 does not apply to convictions for conspiracy. The Segura
court found section 1170.18 specifies the sections of the Health and Safety Code and
Penal Code to which it applies and section 182 is not one. (Segura, supra, at p. 1284.)
It further declined to amend section 1170.18 to include conspiracy crimes, reasoning,
“[c]rimes committed pursuant to a conspiracy present a greater evil than crimes
committed by an individual. As the court long ago realized, ‘a group of evil minds
planning and giving support to the commission of crime is more likely to be a menace to
society than where one individual alone sets out to violate the law.’” (Segura, supra, at
p. 1284, quoting People v. Welch (1928) 89 Cal.App. 18, 22.) We agree. Thus, Graham
is not eligible to have his felony conviction reclassified as a misdemeanor under
Proposition 47.
       Nevertheless, Graham argues the trial court erred in denying his petition because
section 182 requires a defendant convicted of conspiracy to commit a felony to be
punished “in the same manner and to the same extent as is provided for the punishment of
that felony.” (§ 182, subd. (a)(6).) Graham urges us to reconcile this language in section
182 with Proposition 47 so that “a conviction for a conspiracy to commit any felony that
is Prop 47 eligible is also Prop 47 eligible.” The underlying felony in this case, however,



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is second degree commercial burglary (§ 459), which is not one of the crimes eligible to
be reclassified under section 1170.18. (See § 1170.18, subd. (a).)
       Undeterred, Graham asserts the underlying crime would have been a Proposition
47 eligible crime—petty theft under section 490.2 or shoplifting under section 459.5 or
forgery under section 473—had Proposition 47 been in effect when he committed the
crime in 2005. However, there is nothing in the record to show the facts of the
underlying case. At oral argument, Graham’s counsel indicated this issue was never
addressed below because there was no dispute that the value of the property was less than
$950 and that the crime would have been a misdemeanor had Proposition 47 been in
effect at the time. The parties argued solely about whether Proposition 47 applied to
conspiracy convictions. The Attorney General acknowledged the record was scant, but
argued Graham could have also been charged with identity theft, which is not a
Proposition 47 eligible crime. Given that it is Graham’s burden to establish eligibility for
resentencing and his burden to provide a complete record on appeal, Graham has failed to
present sufficient evidence about the underlying crime to allow us to determine whether it
could have been a Proposition 47 eligible crime. (People v. Sherow, supra, 239
Cal.App.4th 875; People v. Rivas-Colon, supra, 241 Cal.App.4th 444.)
       In any case, we decline to extend Proposition 47’s reach so far beyond its plain
language. Graham pled no contest to conspiracy to commit felony second degree
burglary; he was not simply convicted of felony second degree burglary. The crime of
conspiracy would not have been a misdemeanor had Proposition 47 been in effect at the
time the crime was committed.
                                     DISPOSITION
       The judgment is affirmed.


                                                        BIGELOW, P.J.
We concur:


                     RUBIN, J.                   FLIER, J.

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