Filed 10/4/17 P. v. Ruby CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. NANCY LEE RUBY, Defendant and Appellant.

H043139 (Santa Clara County Super. Ct. Nos. C1227679; C1231203)

Defendant Nancy Lee Ruby appeals from the denial of her Proposition 47 petition for resentencing on three counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and one count of attempted second degree burglary. (Pen. Code, §§ 664; 459, 460, subd. (b).) She contends the trial court erred because the offenses involve entering a commercial establishment to commit theft of property under $950, making her eligible for misdemeanor resentencing under Penal Code section 1170.18 (enacted by Proposition 47). For the reasons explained, we conclude (1) the trial court erred in denying resentencing on the three counts of burglary, and (2) the record is insufficient to show error in denying resentencing on the attempted burglary charge. We will therefore reverse the order and remand the matter to the trial court for further proceedings.

I. BACKGROUND

In December 2012, defendant pleaded no contest to numerous charges in two separate felony complaints, including the charges at issue in this appeal: Three counts of second degree burglary and one count of attempted second degree burglary.[1] Defendant was granted probation for five years and ordered to serve one year in the county jail.

Several years after her conviction, defendant filed a Proposition 47 petition for misdemeanor resentencing on the burglary and attempted burglary charges. The petition is not contained in the record because the Superior Court Clerk was unable to locate it. But the trial court’s minutes reflect that a hearing on defendant’s petition was held in December 2015, and the Attorney General has augmented the record to include a brief the District Attorney filed in response to the petition, describing the underlying facts. We take the facts of the offenses from the District Attorney’s responsive brief since there is no indication of a factual dispute below and defendant does not dispute the facts on appeal.

The three burglary charges stem from defendant passing stolen checks and using a stolen ATM card. In the first incident, she went to a Metro PCS store and used two stolen checks (totaling $400.16) to make payments on her account. In the second incident, she went into a bank and used a stolen check to withdraw $500. On the third occasion, she entered a gas station in an attempt to withdraw funds using a stolen ATM card. As for the attempted burglary charge, the only information in the record regarding the underlying facts is that defendant “attempted to enter Bank of America, but the bank was closed.”

The trial court denied defendant’s petition for resentencing. The court’s stated reason for the ruling was that the charged violations “are not eligible for treatment under Proposition 47 in that they do not involve larceny but rather burglaries involving fraudulent use of identification cards or bank account numbers to make purchases of merchandise or to obtain cash.”

II. discussion

A. Proposition 47 and Standard of Review

Passed by the voters in 2014, Proposition 47 amended the Penal and Health and Safety Codes to make certain felony theft and drug offenses misdemeanors, unless committed by defendants with specified disqualifying prior convictions. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) It created a new misdemeanor offense of shoplifting, defined as entering an open commercial establishment during business hours to commit larceny, when the value of the stolen property does not exceed $950. (Pen. Code, § 459.5.) It also created a procedure allowing defendants serving a felony sentence for a crime that would be a misdemeanor under Proposition 47––such as the new shoplifting offense––to petition for resentencing. (Pen. Code, § 1170.18.)

We review de novo a trial court’s decision whether a defendant is eligible for resentencing under Proposition 47. (People v. Dunn (2016) 248 Cal.App.4th 518, 525.) Had the trial court made findings on issues of disputed facts, we would review those factual findings for substantial evidence. (People v. Hallam (2016) 3 Cal.App.5th 905, 911.) But since the underlying facts are not disputed here, our review of the trial court’s ruling presents a pure question of law.

B. The Trial Court Erred in Denying Resentencing on the Three Counts of Second Degree Burglary

Defendant contends that the trial court incorrectly denied her petition for resentencing on the three counts of second degree burglary because they all involve an entry into a commercial establishment during business hours to commit larceny with the amount stolen being less than $950. We note, as did the Attorney General, that defendant’s conduct of passing fraudulent checks and using a stolen ATM card is theft by false pretenses, not “shoplifting” in the traditional sense of stealing openly displayed goods.

In People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), decided after briefing was completed in this appeal, the California Supreme Court held that conduct constituting theft by false pretenses is shoplifting under Penal Code section 459.5. The trial court erred in determining that defendant’s conduct of passing stolen checks and using a stolen ATM card to obtain cash made her ineligible for resentencing under Proposition 47. The circumstances of defendant’s three counts of second degree burglary establish her initial eligibility for relief. (Gonzales, supra, 2 Cal.5th at p. 876.) We will reverse the order denying her petition as to those charges, and remand the matter for the trial court to grant resentencing unless it determines defendant poses an unreasonable risk of danger to the public safety under Penal Code section 1170.18, subdivision (b).

C. The Record is Insufficient to Show Error in Denying Resentencing on the Attempted Burglary Charge

Defendant contends that the trial court erred in denying the petition for resentencing on the attempted second degree burglary charge because it was an attempted act of theft by false pretenses, and should be treated no differently than a completed theft by false pretenses for purposes of Proposition 47 eligibility. The Attorney General counters that since the circumstances of the attempted burglary involved an attempt to enter a bank that was closed, and misdemeanor shoplifting under Penal Code section 459.5 can only occur when a commercial establishment is “open during regular business hours,” defendant’s conduct does not meet the criteria for resentencing.

“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) The error must be shown on the face of the record. (People v. Davis (1996) 50 Cal.App.4th 168, 172.) In this case, the record is not sufficient to demonstrate the trial court erred when it found that defendant was not eligible for resentencing on her attempted burglary conviction.[2] The only facts contained in the record relating to that charge are that defendant “attempted to enter Bank of America, but the bank was closed.”

Without more information regarding the factual basis for the attempted burglary charge, we are unable to discern whether, for instance, defendant knew that the bank was closed and tried to force entry for the purpose of taking the cash deposits inside; or, (more likely but impossible to determine on this record) defendant attempted to enter the bank believing it was open because she wanted to cash a fraudulent check. The first situation would render defendant ineligible for Proposition 47 relief; the second likely would allow for resentencing. But we cannot and do not decide that issue on this record. Even if we were to assume without evidentiary support that defendant’s intent was to enter a bank that was open during regular business hours, the record contains no indication of whether the value of what she intended to obtain there was less than $950.

We therefore cannot say that the trial court erred in denying the petition for resentencing on the attempted burglary charge. However, since we reach that conclusion because the facts of the offense are unclear, defendant is not precluded from bringing a renewed petition in the trial court. (People v. Sherow (2015) 239 Cal.App.4th 875, 881.) If eligibility for resentencing turns on facts not established by an uncontested petition, or if there is a factual dispute, an evidentiary hearing may be required. (People v. Romanowski (2017) 2 Cal.5th 903, 916.)

III. disposition

The order denying defendant’s petition under Penal Code section 1170.18 is reversed. The matter is remanded and the trial court is instructed to grant the petition for resentencing on the three counts of second degree burglary (counts 2 and 3 in case No. C1227679; count 2 in case No. C1231203), unless it determines defendant poses an unreasonable risk of danger to public safety under Penal Code section 1170.18, subdivision (b). The trial court is instructed to deny the petition for resentencing on the attempted second degree burglary charge (count 3 in case No. C1231203), without prejudice to defendant bringing a renewed petition supported by evidence establishing the underlying facts in more detail.

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