Filed 3/14/18 P. v. Greene CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL E. GREENE,
Defendant and Appellant.

A146380

(Sonoma County
Super. Ct. No. SCR-630735)


Before Proposition 47 was passed, Michael Greene pleaded no contest to a felony count of identity theft and a felony count of second degree burglary. The basis for the burglary charge was Greene entering a bank and withdrawing money from an account that he had opened in someone else’s name. Greene subsequently petitioned under Proposition 47 for recall of his sentence on the burglary charge and resentencing for shoplifting. The trial court denied the request based on its understanding that the identity theft conviction disqualified Greene for resentencing on the burglary conviction.
We conclude that the trial court’s interpretation of the law was in error; furthermore, most of the alternative reasons advanced by the Attorney General to support the trial court’s ruling have been rejected by our Supreme Court’s opinion in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), issued after briefing in this case was complete. However, Greene’s petition for resentencing was deficient because it was not submitted with any evidence or information about the amount of money he withdrew in connection with the burglary for which he was convicted. (People v. Perkins (2016) 244 Cal.App.4th 129, 137; People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow).) Recognizing that Greene may have been misled about the requirements of petitioning for resentencing, we will affirm the trial court’s order without prejudice to Greene filing a new petition.
FACTUAL AND PROCEDURAL BACKGROUND
We draw the facts of Greene’s offense from the presentence report prepared by the probation department. In June 2012, a person named David Tentis was found dead in a homeless encampment in Santa Rosa, without his wallet. In early December of that year, an account at Bank of America was opened in Tentis’s name, apparently by Greene. Video surveillance footage showed that Greene entered Bank of America branches in Petaluma and Santa Rosa on December 7, 10, and 19, 2012, and withdrew money from the Tentis account. In mid-February, a police officer contacted Greene on an unrelated matter and asked for his name and date of birth. Greene said, “My name is David Tentis,” and provided a birth date and two credit cards for identification. When a records check showed that Tentis was deceased and his identity had been stolen, the officer told Greene he could stop lying about his name, and Greene replied, “Okay. Whatever man. You got me.” Greene later told a police officer that he had found Tentis’s wallet.
In March 2013, Greene entered pleas as part of a negotiated disposition of charges in several separate complaints. In connection with the complaint arising from the conduct described above, Greene pleaded no contest to one count of felony fraudulent obtaining and use of Tentis’s personal identifying information from June 2012 through mid-February 2013 (Pen. Code, § 530.5, subd. (a) – count I), and one count of felony second degree burglary for entering a commercial building occupied by Bank of America on December 7, 2012 “with the intent to commit larceny and any felony.” (§ 459 – count II.) In connection with the other complaints, Greene pleaded no contest to four additional felony charges. In April 2013, the court sentenced Green in four cases to a total of six years and eight months in county jail, which included eight months on count I and eight months on count II to be served consecutively.
Later that year, Greene pleaded no contest to a felony charge of escaping from a custodial facility (§ 4530, subd. (b)) and was sentenced to serve an aggregate term of seven years and four months in prison on all counts, which included resentencing on counts I and II to eight months on each count, to be served consecutively.
In May 2015, Greene filed a petition under Proposition 47 for resentencing his felony conviction for count II, second degree commercial burglary, as misdemeanor shoplifting. (§§ 459.5, 1170.18, subd. (a).) The district attorney opposed the petition on the ground that Greene’s no contest plea to the section 530.5 charge in count I rendered the burglary count ineligible for resentencing. At the hearing, the district attorney stated (erroneously, as we shall see): “The Prop 47, the actual statute there is a piece of legislation that indicates if somebody is convicted jointly of a 459 as well as a 530.5 that neither is reducible under Proposition 47. I don’t have, other than the training I received, I don’t have any direct authority.” The trial court judge agreed with the district attorney: “[M]y understanding is if there is a 530.5 in the case that the 459 is not reducible. So I’m going to be denying the petition in case [SCR-630735].” A written order denying the petition was filed the same day. Greene timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
In 2014, California’s voters approved Proposition 47, which “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.)
As relevant here, Proposition 47 reduced the penalties for certain second degree burglaries. Before and after Proposition 47, section 459 provided, “Every person who enters any house, room, apartment, tenement, shop . . . or other building . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” Under section 460, subdivision (b), burglary is in the second degree unless it is “burglary of an inhabited dwelling house . . . or the inhabited portion of any other building.” (§ 460, subd. (a).) Burglary in the second degree is a wobbler, punishable as a misdemeanor or a felony. (§§ 461, subd. (b); 1170, subd. (h).) Section 459.5, added by Proposition 47, provides, “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.” (§ 459.5, subd. (a).) Shoplifting is to be punished as a misdemeanor, absent circumstances that are not relevant here. (Ibid.) Further, “[a]ny act of shoplifting as defined in [§ 459.5, subd. (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.” (Id., subd. (b).)
Proposition 47 also added section 1170.18, which authorizes a person currently serving a felony sentence for an offense that is now a misdemeanor to petition the trial court for recall of the sentence and resentencing in accordance with the statutes that Proposition 47 added or amended. (§ 1170.18, subd. (a).) Upon receiving such a petition, the trial court is to determine whether the defendant meets the statutory criteria for relief. (Id., subd. (b).) That determination is “inherently factual . . . . For example, to qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered ‘a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours,’ and whether ‘the value of the property that [was] taken or intended to be taken’ exceeded $950. (§ 459.5.)” (People v. Contreras (2015) 237 Cal.App.4th 868.) It is the defendant’s burden to show in his or her petition that the crime would have been a misdemeanor if Proposition 47 had been in effect at the time of the offense, which means that the “defendant must provide some evidence of eligibility when he files the petition.” (Perkins, supra, 244 Cal.App.4th at p. 137.)
We review the trial court’s construction of Proposition 47 de novo. (Perkins, supra, 244 Cal.App.4th at p. 136.) “ ‘In interpreting a voter initiative . . . we apply the same principles that govern statutory construction. [Citation.] Thus, “we turn first to the language of the statute, giving the words their ordinary meaning.” [Citation.] The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ (People v. Rizo (2000) 22 Cal.4th 681, 685.)” (People v. Briceno (2004) 34 Cal.4th 451, 459.)
B. Analysis
The trial court erred in concluding that a defendant convicted jointly of burglary under section 459 and identity theft under section 530.5 cannot qualify for sentence reduction for the burglary charge under Proposition 47.
Our review of the language and structure of Proposition 47 convinces us that an identity theft conviction does not bar the reclassification of a burglary offense from felony to misdemeanor. Section 459.5 is unambiguous: entering a commercial establishment is shoplifting, and not burglary, if the intent is to commit larceny, the establishment is open during regular business hours, and the value of property taken or intended to be taken is $950 or less. Nothing in section 459.5 states or suggests that a conviction for identity theft has any bearing on whether an offense should be characterized as burglary or shoplifting.
Section 459.5 contrasts with section 473, subdivision (b), another provision added by Proposition 47. Section 473, subdivision (b) authorizes felony punishment for the forgery of checks and similar documents, regardless of the value of the document, if a defendant is convicted of both forgery and identity theft under section 530.5. There is no such provision in section 495.5, which defines shoplifting.
Section 1170.18 is clear that if the requirements for resentencing are met—that is, if the petitioner was convicted of a felony that would have been a misdemeanor if Proposition 47 had been in effect—the petitioner is to be resentenced unless the court determines that resentencing “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) “ ‘[U]nreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of [section 667, subd. (e)(2)(C)(iv)].” (§ 1170.18, subd. (c).) And section 1170.18, subdivision (i) specifies that a petition for resentencing must be denied if the petitioner has been convicted of an offense specified in section 667, subd. (e)(2)(C)(iv) or if the petitioner has been convicted of an offense requiring registration as a sex offender under section 290, subdivision (c). Nothing in section 1170.18, or in section 667 or 290, states or suggests that a conviction for identity theft under section 530.5 has any impact on eligibility for resentencing under Proposition 47. The Attorney General does not point us to any language in Proposition 47 that suggests otherwise.
In the trial court, the district attorney’s opposition to Greene’s resentencing petition rested solely on the argument that Greene’s no contest plea to identity theft rendered his burglary charge ineligible for reduction to a misdemeanor. On appeal, the Attorney General advances two different arguments, one that involves the nature of the burglary, and one that involves the value of the money withdrawn in the burglary.
As to the nature of the burglary, the Attorney General argues that Greene is ineligible for resentencing because the court could properly find that the burglary charge is premised on his entering a business with the intent to commit theft by false pretenses or identity theft, rather than larceny. This argument rests on the definitions of “burglary,” which requires the intent “to commit larceny or any felony” (§ 459, italics added), and “shoplifting,” which requires the intent “to commit larceny” (§ 459.5), where larceny is “ ‘the taking of another’s property, with the intent to steal and carry it away.’ ” (People v. Williams (2013) 57 Cal.4th 776, 786, quoting People v. Gomez (2008) 43 Cal.4th 249, 254–255.) And the argument assumes that Greene’s conduct, which was making a withdrawal from a fraudulent bank account, constitutes identity theft or theft by false pretenses, but not larceny. The argument lacks merit for several reasons.
First, the Attorney General’s argument that Greene did not commit larceny is inconsistent with the language of the operative complaint which states that Greene’s burglary charge arose from his entering a business “with the intent to commit larceny and any felony.” Greene pleaded no contest to that charge. Having accepted Greene’s plea, the court could not properly determine that Greene had not intended to commit larceny. (People v. Martin (2010) 51 Cal.4th 75, 80 [a negotiated plea agreement is binding on the parties and the court].)
Second, our Supreme Court has held that the term “larceny” in sections 459 and 459.5 is to be understood as “theft,” and includes theft by false pretenses as well as theft by larceny. (Gonzales, supra, 2 Cal.5th at p. 862).)
Third, under Gonzales, Greene’s burglary conviction could not properly be based on Greene entering the bank with the intent to commit identity theft. In Gonzales, the defendant stole his grandmother’s checkbook and on two separate occasions entered a bank and cashed a check for $125 made out to him. (Gonzales, supra, 2 Cal.5th at p. 862.) His grandmother did not sign the checks or authorize him to cash them. (Ibid.) Before Proposition 47 was passed, defendant pleaded guilty to felony second degree burglary, and he subsequently petitioned for recall and resentencing under section 1170.18. (Ibid.) Among other things, the Attorney General argued that because the defendant entered the bank intending to commit identity theft, he was not eligible for resentencing even if his cashing of the checks constituted shoplifting under Proposition 47. (Id. at p. 876.) The Supreme Court rejected that view, and agreed with the defendant that even if “he entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting.” (Ibid.) The Supreme Court explained: “Section 459.5, subdivision (b) requires that any act of shoplifting ‘shall be charged as shoplifting’ and no one charged with shoplifting ‘may also be charged with burglary or theft of the same property.’ (Italics added.) A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct. The statute’s use of the phrase ‘the same property’ confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge.” (Ibid.) The Supreme Court noted that, “[a] felony burglary charge could legitimately lie if there was proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit.” (Id. at p. 877.) As applied to Greene, this means that if Greene can establish that the value of the check he cashed on December 7, 2012, was $950 or less, and if he meets the other requirements set out in section 1170.18 for resentencing, his felony second degree burglary charge is eligible for reduction to a misdemeanor.
We turn now to the Attorney General’s argument that because Greene’s petition includes no evidence of the value of the withdrawal he made in the burglary, and because it was Greene’s burden to present evidence that the value was $950 or less, he does not qualify for resentencing.
Since Greene filed his petition, the courts have made clear that in a case such as this, where a petition for resentencing rests on the value of the property that was the basis for his conviction, the petition must be filed with some evidence of the value of the items at issue. (Perkins, supra, 244 Cal.App.4th at p. 137; see also Sherow, supra, 239 Cal.App.4th at p. 880 [“A proper petition could certainly contain at least [petitioner’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.”].) Greene provided no such evidence. His failure to do so dooms his petition, and, because we may affirm a trial court order on any correct basis presented by the record whether or not the trial court relied on it, we affirm the trial court’s order here. (Perkins, supra, 244 Cal.App.4th at p. 139.)
We recognize, however, that Greene, like the defendant in Perkins, “may have been misled about the requirements of petitioning for relief under Proposition 47. Though Evidence Code section 500 establishes petitioners have the burden of establishing eligibility, Proposition 47 itself is silent on the point and the courts had not made the connection explicit until after defendant had filed his petition. Moreover, Proposition 47 is silent as to the submission of evidence or information to support an application for resentencing.” (Perkins, supra, 244 Cal.App.4th at pp. 139–140.) Furthermore, as in Perkins, the form that Greene used in filing his petition includes no directions to suggest that evidence or other information should be submitted with the petition. (Id. at p. 140.) As the Perkins court points out, “when defendant filed his petition, the ground rules were unsettled.” (Ibid.) As the courts did in Perkins and Sherow, we will affirm the denial of Greene’s petition “ ‘without prejudice to subsequent consideration of a properly filed petition.’ ” (Ibid., quoting Sherow, supra, 239 Cal.App.4th at p. 881.)
DISPOSITION
The trial court order denying Greene’s petition for resentencing is affirmed without prejudice to Greene filing a new petition.







_________________________
Miller, J.


We concur:


_________________________
Richman, Acting P.J.


_________________________
Stewart, J.










A146380, People v. Greene