Filed 4/29/16 P. v. Fredieu 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E064196

v.                                                                       (Super.Ct.No. FSB050720)

BENJAMIN FREDIEU,                                                        OPINION

         Defendant and Appellant.




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

Christianson, Judge. Affirmed.

         Rex Adam Williams, 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 Charles C. Ragland and

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

       Pursuant to Proposition 47, defendant and appellant, Benjamin Fredieu, petitioned

the trial court to reclassify his July 2005 felony commercial burglary conviction (Pen.

Code, § 459)1 as a misdemeanor shoplifting conviction (§§ 459.5, 1170.18, subds. (f),

(g)). Defendant pled guilty to the 2005 felony. His petition was denied following a

hearing. He appeals, claiming his petition should have been granted because nothing in

the record of his 2005 conviction establishes that the value of the property involved in the

burglary did not exceed $950. (§ 459.5, subd. (a).) We conclude that the petition was

properly denied, and affirm.

       A felony commercial burglary conviction may be reclassified as a misdemeanor

shoplifting conviction only if, among other things, it involved the taking or intent to take

money or property worth $950 or less. (§§ 459.5, subd. (a), 1170.18, subds. (f), (g).)

Further, defendant had the initial burden of making a prima facie evidentiary showing

that his 2005 commercial burglary conviction met the definition of misdemeanor

shoplifting under section 459.5, including that the burglary involved his taking or intent

to take property worth $950 or less. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-

880 (Sherow).) Defendant did not make this showing. He presented no evidence with his

petition, or at the hearing on the petition, supporting his claim that he was eligible for the

Proposition 47 relief he was seeking.




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


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       At the June 25, 2015, hearing on the petition, the People presented evidence,

namely, the “original . . . probable cause declaration,” confirming that the 2005 burglary

involved defendant’s cashing of a forged check in the amount of $1,871.55. Defendant

did not dispute this evidence at the hearing. Though the record on appeal does not

include the probable cause declaration, it ostensibly came from the court file and record

of the 2005 conviction. Defendant’s claim that the trial court was limited to considering

the record of his 2005 conviction in ruling on his petition is therefore moot, because the

court did not consider evidence outside the record of the 2005 conviction in ruling on the

petition.

                                   II. BACKGROUND

       On June 29, 2005, a felony complaint was filed charging defendant, then 20 years

of age, with commercial burglary (count 1), forgery (count 2), and grand theft (count 3),

and alleging he had a prison prior based on a November 19, 2003, conviction for

commercial burglary. The complaint alleged that, on or about June 27, 2005, defendant

entered a commercial building occupied by Arrowhead Credit Union with the intent to

commit larceny and a felony (count 1), signed the name of another person or a fictitious

person to a personal check (count 2), and unlawfully took $1,871.55 from Arrowhead

Credit Union (count 3).

       On July 8, 2005, defendant pled guilty to one count of commercial burglary

(§ 459) and was sentenced to 16 months in prison. Defendant stipulated that the police




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report provided a factual basis for his plea. The police report is not part of the record on

appeal.

       On May 5, 2015, defendant petitioned the trial court to reduce his July 8, 2005,

felony commercial burglary conviction to a misdemeanor pursuant to Proposition 47.

(§§ 459.5, subd. (a), 1170.18, subds. (f), (g).)2 On June 4, 2015, the People filed a

response, opposing the petition on the ground defendant was not entitled to the relief he

requested because: “Value over $950. Defendant entered credit union and cashed forged

check for $1,871.55.” At the June 25, 2015 hearing on the petition, counsel for the

People noted: “I was able to look in the court file, and it appears that the amount of loss

. . . was . . . $1[,]871.55 . . . .” Defendant did not object to the evidence from the “court

file,” and submitted the matter. The trial court then denied the petition, noting: “There is

no police report, but there is the original of a probable cause declaration which does

confirm that the amount of the forged check cashed was $1[,]871.55.”3




       2 Also on May 5, 2015, defendant filed a petition in San Bernardino County
Superior Court case No. FRE006521 to reduce his November 19, 2003, commercial
burglary conviction to a misdemeanor pursuant to Proposition 47. That petition was
denied, and defendant has appealed the denial of that petition in case No. E064195.

       3  The police report, which included the factual basis of defendant’s 2005 guilty
plea, was not presented to the trial court in connection with defendant’s petition and is
not part of the record on appeal.


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                                     III. DISCUSSION

A. Statutory Background

       In November 2014, California voters approved Proposition 47, “The Safe

Neighborhoods and Schools Act” (Proposition 47 or the Act), and it became effective 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 1081, 1091.) Proposition 47 added a new sentencing

provision, section 1170.18, to the Penal Code, and a new statute defining misdemeanor

shoplifting, section 459.5. (People v. Rivera, supra, at p. 1091; Voter Information Pamp.,

Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 5, 14, pp. 71, 73-74

<http://vig.cdn.sos.ca.gov/2014/general/pdf/complete-vig.pdf> [as of April 29, 2016].)

       Under section 1170.18, subdivision (f), a person who has completed his or her

sentence for a felony conviction that would have been a misdemeanor had the Act been in

effect at the time the felony was committed may petition the trial court that entered the

judgment of conviction to have the conviction designated a misdemeanor. If the petition

satisfies the criteria of section 1170.18, subdivision (f), the court “shall designate the

felony offense . . . as a misdemeanor.” (§ 1170.18, subd. (g).)

       Section 459.5, subdivision (a), defines “shoplifting” as “entering a commercial

establishment with intent to commit larceny while that establishment is open during



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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.”4 Shoplifting must

be punished as a misdemeanor, unless the defendant has one or more disqualifying prior

convictions. (Ibid.)5

B. The Court Did Not Consider Evidence Outside the Record of the 2005 Conviction

       Defendant claims his petition was erroneously denied because “[n]othing in the

record” of his 2005 felony commercial burglary conviction establishes that he admitted,

or that the court that accepted his 2005 guilty plea found true beyond a reasonable doubt,

that he intended to steal more than $950 at the time of the burglary. He maintains that, in

determining whether a person is eligible for relief under section 1170.18, the trial court is

limited to examining the record of conviction underlying the felony that the defendant

seeks to have reclassified a misdemeanor. He principally relies on People v. Bradford

(2014) 227 Cal.App.4th 1322 at pages 1338 to 1340, where the court concluded that, in


       4  The People do not dispute that the entry into a commercial establishment,
including a bank, during normal business hours, with the intent to commit larceny, where
the defendant intends to cash or cashes a forged check of $950 or less, constitutes
shoplifting under section 459.5. (People v. Root (2016) 245 Cal.App.4th 353, 359-360.)

       5 In an attachment to his petition, defendant declared under penalty of perjury that
he had no prior convictions that would disqualify him from having his 2005 felony
conviction reduced to a misdemeanor, namely, a conviction described in section 667,
subdivision (e)(2)(C), or a conviction requiring him to register as a sex offender under
subdivision (c) of section 290. (§ 459.5, subd. (a); see also § 1170.18, subd. (a).) In their
response, the People did not dispute this claim, and it was not questioned at the hearing
on the petition.


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Proposition 36 cases, the trial court is limited to examining the record of the defendant’s

prior conviction in determining whether the conviction renders the defendant ineligible to

be resentenced under section 1170.126. (See also People v. White (2014) 223

Cal.App.4th 512, 524-525.)

       Defendant further argues that “[n]either party bears a burden of proof on the

question of eligibility [for relief under Proposition 47] because [section 1170.18] does not

call for an evidentiary hearing. Instead, [the statute] provides for a sentencing hearing.

Therefore, the trial court must look to the record of conviction to determine whether any

findings were made showing the elements of the felony offense. If not, then the

defendant would have been guilty of a misdemeanor under the Act.”

       Recently, in People v. Perkins (2016) 244 Cal.App.4th 129, this court questioned

whether the trial court is limited to considering the record of the prior felony conviction

in determining the defendant’s eligibility for Proposition 47 relief. We said: “We

recognize the Third District Court of Appeal held evidence submitted at a resentencing

hearing under the Three Strikes Reform Act [Proposition 36] must be from the record of

conviction. ([People v.] Bradford, supra, 227 Cal.App.4th at pp. 1339-1340.) However,

eligibility for resentencing under that statute [section 1170.126] turns on the nature of the

petitioner’s convictions—whether an offender is serving a sentence on a conviction for

nonserious, nonviolent offenses and whether he or she has prior disqualifying convictions

for certain other defined offenses. (§ 1170.126, subd. (e).) By contrast, under

Proposition 47, eligibility often turns on the simple factual question of the value of the



                                              7
stolen property. In most such cases, the value of the property was not important at the

time of conviction, so the record may not contain sufficient evidence to determine its

value. For that reason, and because petitioner bears the burden on the issue (Evid. Code,

§ 500), we do not believe the Bradford court’s reasons for limiting evidence to the record

of conviction are applicable in Proposition 47 cases. That does not mean there will be a

mini-trial on the value of stolen property in every case, only that offenders may submit

extra-record evidence probative of the value when they file their petitions for

resentencing. [Citation.]” (Id. at p. 140, fn. 5.)

       Here, it is unnecessary to determine whether the trial court was limited to

considering the record of defendant’s 2005 conviction in determining whether the

conviction met the statutory definition of misdemeanor shoplifting under section 459.5,

because in ruling on the petition the court did not consider any evidence outside the

record of the 2005 conviction. Instead, it based its ineligibility determination solely on

the “original . . . probable cause declaration” from the “court file” and record of the 2005

conviction.6 The court noted that the probable cause declaration “confirm[ed]” that the

2005 burglary was based on defendant’s cashing of a forged check in the amount of

$1,871.55, rendering him ineligible to have his 2005 felony commercial burglary

conviction reclassified as misdemeanor shoplifting. (§ 459.5.)




       6 A defendant who has pleaded guilty or no contest to a crime may not appeal
from the judgment of the conviction unless the trial court has signed and filed a probable
cause declaration. (§ 1237.5.)


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C. Defendant Failed to Meet His Burden of Proof on His Petition

       We disagree with defendant’s additional claim that neither party bears the burden

of proof on a Proposition 47 petition. To be entitled to the relief he sought in his petition,

defendant had the initial burden of making a prima facie evidentiary showing to the trial

court that his 2005 commercial burglary conviction would have constituted misdemeanor

shoplifting, under section 459.5, had section 459.5 been in effect at the time he

committed the burglary. (Sherow, supra, 239 Cal.App.4th at pp. 879-880; People v.

Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450.)

       As explained in Sherow, a party ordinarily has the burden of proving each fact the

existence or nonexistence of which is essential to the claim for relief or defense the party

is asserting. (Sherow, supra, 239 Cal.App.4th at p. 879.) This rule is based on Evidence

Code section 500,7 which “places the burden of proof in any contested matter on the

party who seeks relief. . . . ‘That is, if you want the court to do something, you have to

present evidence sufficient to overcome the state of affairs that would exist if the court

did nothing.’ [Citation.]” (Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1163, fn.

omitted.) As Sherow further explained: “[I]t is entirely appropriate to allocate the initial

burden of proof to the petitioner to establish the facts upon which his or her eligibility is

based. [¶] Applying the burden to [the petitioner] would not be unfair or unreasonable.

He knows what kind of items he took from the stores in counts 1 and 2. . . . [¶] A proper

       7  Evidence Code section 500 states: “Except as otherwise provided by law, a
party has the burden of proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that he is asserting.”


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petition could certainly contain at least [the petitioner’s] testimony about the nature of

the items taken.” (Sherow, supra, at p. 880, italics added.)

       In our recent decision in People v. Perkins, supra, 244 Cal.App.4th at pages 136 to

140, we followed Sherow and discussed in detail the petitioner’s burden of proof on a

Proposition 47 petition. We held that, though section 1170.18 “is silent as to who has the

burden of establishing whether a petitioner is eligible for resentencing [or reclassification

of a felony conviction as a misdemeanor],” the statute requires the petitioner to “set out a

case for eligibility, stating and in some cases showing the offense of conviction has been

reclassified as a misdemeanor and, where the offense of conviction is a theft crime

reclassified based on the value of stolen property, showing the value of the property did

not exceed $950. [Citations.] The defendant must attach information or evidence

necessary to enable the court to determine eligibility.” (People v. Perkins, supra, at pp.

136-137, italics added.)

       By his petition, defendant asked the court to change the status quo by reducing his

2005 felony commercial burglary conviction to a misdemeanor. He therefore had the

burden of proving his eligibility for the relief he was requesting. (Sherow, supra, 239

Cal.App.4th at pp. 879-880; Evid. Code, § 500.) Defendant did not meet this burden. He

offered no evidence, either with his petition or at the hearing on the petition, that his 2005

burglary conviction met the new statutory definition of misdemeanor shoplifting,

including that the burglary involved his taking or intent to take no more than $950 in

money or property. (Pen. Code, § 459.5, subd. (a).)



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       Additionally, and as discussed, the People adduced evidence that defendant was

ineligible for the Proposition 47 relief he was seeking: the “original . . . probable cause

declaration” from the record of defendant’s 2005 conviction, which “confirm[ed]” that

the 2005 burglary was based on defendant’s act of cashing a forged check in the amount

of $1,871.55. (§ 459.5.) Though the probable cause declaration is not part of the record

on appeal, defendant did not dispute its authenticity in the trial court and does not dispute

it here. Because defendant did not attempt to prove his eligibility for Proposition 47

relief and the People produced evidence from the record of the 2005 conviction that he

was ineligible for such relief, the petition was properly denied.

                                    IV. DISPOSITION

       The June 25, 2015, order denying defendant’s Proposition 47 petition is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                CODRINGTON
                                                                                              J.


We concur:

MILLER
                Acting P. J.

SLOUGH
                           J.




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