Filed 7/26/17 P. v. Melikian CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHELLE ANDREA MELIKIAN,

Defendant and Appellant.

F073625

(Super. Ct. No. F06905162)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Michelle Andrea Melikian appeals the denial of her petition for reclassification of a prior felony conviction for second degree burglary to a misdemeanor pursuant to Penal Code section 1170.18 (Proposition 47). The California Supreme Court recently determined that the definition of shoplifting under Proposition 47 includes nonlarcenous thefts. (People v. Gonzales (2017) 2 Cal.5th 858, 862.) Therefore, we reverse and remand.
FACTUAL AND PROCEDURAL SUMMARY
Melikian was charged on July 10, 2006, in count 1 with identity theft in violation of section 530.5, subdivision (a); in count 2 with receiving stolen property, a violation of section 496, subdivision (a); and in count 3 with second degree burglary, a violation of sections 459 and 460, subdivision (b). It also was alleged as to all three counts that Melikian had been released on bail or her own recognizance at the time of the commission of the offense, as set forth in section 12022.1. As to the second degree burglary charge, the complaint alleged that Melikian “did unlawfully enter a commercial building with the intent to commit larceny or any felony.”
On July 13, 2006, as part of a plea bargain, Melikian pled no contest to the second degree burglary charge and admitted the section 12022.1 enhancement. In exchange, the other two counts were dismissed.
Melikian apparently was placed on probation, because on February 23, 2007, a violation of probation hearing was held. Melikian admitted the violation, probation was revoked, and the trial court sentenced her to the low term of 16 months in prison.
On December 4, 2015, Melikian filed an Application for Reduction of Felony Conviction pursuant to Proposition 47. She listed 16 different case numbers and convictions that she sought to have reduced, but did not provide any facts about the listed offenses, nor did she specify any dollar amounts for the offenses. The People opposed the petition as to the second degree burglary conviction, contending that conviction was ineligible for reduction because Melikian “entered Walmart to use stolen credit cards.”
The superior court set the petition for a hearing. Melikian was represented by counsel at the April 18, 2016, hearing. Defense counsel acknowledged that Melikian entered Walmart during normal business hours for the purpose of using a stolen credit card, allegedly to obtain $230 worth of goods. The People did not have any information with which to contest the alleged dollar amount.
The superior court denied the petition as to the second degree burglary conviction on the basis “the facts of this case … do not qualify as a shoplifting.” On April 27, 2016, Melikian filed an appeal of the denial of the reduction of the second degree burglary conviction.
DISCUSSION
Melikian contends the superior court erred in finding the second degree burglary conviction was not eligible for reduction to a misdemeanor under Proposition 47. She is correct.
Proposition 47
On November 4, 2014, voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) It also provided a mechanism by which a person, who has completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, can apply to the trial court that entered the judgment of conviction to have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).)
One of the felonies reduced to a misdemeanor by the Act was second degree commercial burglary. Now if a person “enter[s] a commercial establishment with intent to commit larceny while that establishment is open during regular business hours” and takes or intends to take property with a value not exceeding $950, that person has committed misdemeanor shoplifting, unless he or she has “one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 . . . .” (§ 459.5, subd. (a).) “Any other entry into a commercial establishment with intent to commit larceny is burglary.” (Ibid.) Thus, in order for a defendant to qualify to have his or her prior second degree burglary conviction reduced to a misdemeanor under this 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. [Citation.]’ [Citation.]” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.)
“We review the trial court’s construction of Proposition 47 de novo. [Citation.] We review any factual findings in connection with the court’s ruling on the petition for substantial evidence. [Citations.]” (People v. Salmorin (2016) 1 Cal.App.5th 738, 743.)
Melikian, as the petitioner, had the burden of showing she was eligible to have her prior convictions reclassified as misdemeanors. (People v. Sweeney (2016) 4 Cal.App.5th 295, 302; People v. Johnson (2016) 1 Cal.App.5th 953, 956, 962, 963; People v. Hall (2016) 247 Cal.App.4th 1255, 1263; People v. Bush (2016) 245 Cal.App.4th 992, 1007; People v. Perkins (2016) 244 Cal.App.4th 129, 136; People v. Sherow (2015) 239 Cal.App.4th 875, 877, 879-880; see Evid. Code, § 500 [“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 . . . that he is asserting.”].)
It appears Melikian met her initial burden of demonstrating she had no prior convictions that made her categorically ineligible for resentencing under section 1170.18, subdivision (i), by so declaring under penalty of perjury in her petition. (See People v. Hall, supra, 247 Cal.App.4th at p. 1263; see also People v. Abarca (2016) 2 Cal.App.5th 475, 480.)
She failed, however, to make a prima facie showing in the petition establishing her prior felony convictions were for offenses that would have been misdemeanors had Proposition 47 been in effect at the time the crimes were committed. (People v. Hall, supra, 247 Cal.App.4th at p. 1263.) She simply listed the case numbers and convictions, without even stating the conviction in question involved a commercial establishment, let alone that she entered during regular business hours and took or intended to take property with a value of less than $950. (See § 459.5, subd. (a).) This was patently insufficient (see People v. Sweeney, supra, 4 Cal.App.5th at p. 302; People v. Johnson, supra, 1 Cal.App.5th at p. 961; People v. Hall, supra, 247 Cal.App.4th at p. 1263; People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137; People v. Rivas-Colon, supra, 241 Cal.App.4th at pp. 449-450; People v. Sherow, supra, 239 Cal.App.4th at p. 880), particularly since even after Proposition 47, some entries into commercial establishments with intent to commit larceny remain second degree burglaries that can be punished as felonies (see § 461, subd. (b)).
Second Degree Burglary Conviction
Melikian was afforded the opportunity at the hearing on the petition to offer additional evidence demonstrating eligibility for reduction of the second degree burglary conviction. Counsel stated at the hearing that the probation report reflected Melikian entered Walmart during regular business hours for the purpose of obtaining goods in the approximate amount of $230 using a stolen credit card. In the present case, no objection was raised to counsel’s reference to the probation report and the trial court’s consideration of the facts therein.
Section 459.5, a statute added by Proposition 47, created a new crime of shoplifting, a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary. Now codified, section 459.5, subdivision (a) provides in relevant part: “Notwithstanding Section 459 [(the burglary statute)], 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 . . . .”
Melikian asserts she entered Walmart with the intent to commit larceny. She argues she was charged with unlawfully entering the store “with the intent to commit larceny or any felony,” and theft by larceny is what she did. She maintains Proposition 47 encompasses her crime and the offense should be reduced to a misdemeanor. The recent California Supreme Court decision of People v. Gonzales, supra, 2 Cal.5th 858 supports Melikian’s position.
The court in Gonzales noted the “focus of the ballot pamphlet was on the value of the property, setting the threshold for felony treatment at $950.” (People v. Gonzales, supra, 2 Cal.5th at p. 870.) The Gonzales court went on to state that “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.” (Id. at p. 876.)
In Gonzales, the defendant entered a commercial establishment with the intent to commit identity theft by using a stolen check to obtain less than $950. (People v. Gonzales, supra, 2 Cal.5th at p. 877.) Traditionally, this would have been regarded as “theft by false pretenses rather than larceny,” but now constitutes shoplifting under Proposition 47. (Id. at p. 862.)
In this case, Melikian’s use of a stolen credit card caused Walmart to willingly transfer title to certain goods. “There is no indication the electorate somehow viewed larceny differently from other forms of theft. Rather, it set the amount at issue as the demarcation between felonies and misdemeanors.” (People v. Gonzales, supra, 2 Cal.5th at p. 870.) Because there is no dispute Melikian entered Walmart, a commercial establishment, and used a stolen credit card to obtain goods worth less than $950, her crime falls within Proposition 47’s definition of shoplifting. (Ibid.)
The second degree burglary conviction is therefore eligible for resentencing under Proposition 47.
DISPOSITION
The denial of the petition to reclassify the 2006 felony conviction for second degree burglary as a misdemeanor pursuant to Proposition 47 is reversed and the matter remanded for proceedings consistent with this opinion.