Opinion
H042917
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CHARLES CHAMPAGNE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1368862)
Defendant Anthony Charles Champagne appeals from an order denying his Proposition 47 petition for resentencing on a second degree burglary conviction. He contends the trial court erred because the facts of the offense constitute a misdemeanor under current law, so he qualifies for resentencing under Penal Code section 1170.18, subdivision (a) (enacted by Proposition 47). As we will explain, defendant presented no evidence to the trial court regarding the circumstances of the offense and therefore necessarily did not meet his burden of proving eligibility for relief. For that reason, we must affirm the order, without prejudice to defendant bringing a new Proposition 47 petition that is supported by adequate evidence.
I. BACKGROUND
Defendant was charged in a 17-count complaint with burglary of a vehicle (Pen. Code, §§ 459, 460, subd. (b); counts 1, 2, 3, 8, 10, 11, and 13); theft of a vehicle (Veh. Code, § 10851, subd. (a); count 4); second degree burglary (Pen. Code, §§ 459, 460, subd. (b); counts 5 and 6); attempted use of a stolen access card (Pen. Code, §§ 664, 484g, subd. (a), 487; count 7); possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1); count 9); concealing stolen property (Pen. Code, § 496, subd. (a); count 12); grand theft (Pen. Code, §§ 484, 487, subd. (a); count 14); using a stolen access card (Pen. Code, §§ 484g (a), 488; count 15); and petty theft (Pen. Code, §§ 484, 488; counts 16 and 17). Defendant pleaded no contest to all charges. The court sentenced him to six years in prison under a negotiated disposition in June 2014. In May 2015, defendant filed a petition under Proposition 47 for misdemeanor resentencing on the two second degree burglary charges (counts 5 and 6).
Proposition 47 was enacted by the voters in 2014 and made certain felony offenses misdemeanors. Relevant here, it created a new misdemeanor offense of shoplifting, defined as entering a 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 for persons to petition for resentencing if they are serving a sentence for a felony offense that would have been a misdemeanor had Proposition 47 been in effect at the time of the conviction. (Pen. Code, § 1170.18, subd. (a).)
Defendant's petition listed the charges on which he requested resentencing, but contained no substantive information relating to the underlying facts and did not attach any documentary evidence. The trial court held a hearing on the petition, but no evidence was presented. The court simply announced, "the parties have stipulated and agreed that Mr. Champagne is eligible for the requested relief in Count Six; that he is not eligible for the requested relief in Count Five because it doesn't constitute commercial burglary [sic] as that is now defined in [Penal Code section] 459.5." The court then resentenced defendant to a misdemeanor on his conviction for second degree burglary in count 6, but denied that relief as to the conviction for the same offense in count 5.
The court likely meant to refer to "shoplifting" since that is the offense defined by Penal Code section 459.5, not commercial burglary. --------
II. DISCUSSION
A. THE STIPULATION DOES NOT BAR DEFENDANT'S APPEAL
We must first determine the effect of the trial court's statement that the parties "stipulated and agreed" to the very result from which defendant now appeals. Defendant argues that the trial court's order should not be affirmed based on the purported stipulation because the record does not clearly reflect its terms. The Attorney General concedes that point, and we agree. Not only is the nature of the agreement unclear, there is no adequate confirmation of it in the record, such as defense counsel's verbal acquiescence or signature on a written stipulation.
Further, if the parties stipulated to the conclusion that defendant was ineligible for Proposition 47 relief, that would amount to a stipulation on a question of law and would not be binding on this court. (Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 476.) Defendant requested resentencing on both counts 5 and 6 in his petition for resentencing, and we cannot say on this record that he is barred by an undefined stipulation from challenging the order denying relief on count 5.
B. THE FAILURE TO PRESENT ANY EVIDENCE IN SUPPORT OF THE PETITION MEANS DEFENDANT NECESSARILY DID NOT MEET HIS BURDEN OF PROOF
Defendant argues that since the facts giving rise to both burglary convictions are essentially the same, there was no basis for the trial court to deny the petition for resentencing on count 5 after granting it on count 6. He also argues that he is entitled to resentencing because his conviction arises from using a stolen credit card to obtain less than $950, conduct that is within the Penal Code section 459.5 definition of misdemeanor shoplifting. We reject these arguments because defendant did not meet his burden in the trial court of proving his eligibility for resentencing.
A defendant petitioning for resentencing under Proposition 47 bears the burden of showing that the offense qualifies for that relief under the terms of the statute. (People v. Romanowski (2017) 2 Cal.5th 903, 916; People v. Johnson (2016) 1 Cal.App.5th 953, 961.) Where the claimed eligibility for relief turns on whether the offense constitutes shoplifting under Penal Code section 459.5, this burden includes the presentation of evidence showing not only entry into a commercial establishment during business hours, but also the value of the stolen property. (People v. Johnson, supra, 1 Cal.App.5th at p. 962.) A defendant who does not present any evidence as to the value of the stolen property does not meet his initial burden in the trial court, and therefore cannot meet his burden on appeal of establishing trial court error. (Id. at p. 970; see also People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)
We granted defendant's motion to augment the record on appeal to include a police report describing his offense, but upon reviewing it we find no indication it was submitted to the trial court in connection with the petition for resentencing. Relying on the police report, defendant states that the situation giving rise to his second degree burglary conviction in count 5 was an attempt to withdraw $62 from an ATM at a convenience store with a stolen credit card. Based on those facts, the parties argue the merits of defendant's contention: whether attempting to withdraw money with a stolen credit card, which constitutes theft by false pretenses, is within the meaning of "larceny" for purposes of qualifying as misdemeanor shoplifting under Penal Code section 459.5. During the pendency of this appeal, that issue was resolved by the California Supreme Court in People v. Gonzales (2017) 2 Cal.5th 858, holding that theft by false pretenses does constitute shoplifting under Penal Code section 459.5. (People v Gonzales, supra, at p. 862.)
The Attorney General does not dispute defendant's version of the facts underlying his offense, and adopts the same facts in the Respondent's Brief to argue that the conduct does not constitute shoplifting (an argument that no longer has merit after People v. Gonzales, supra, 2 Cal.5th 858). However, the Attorney General alternatively argues—correctly—that since defendant did not present any evidence to the trial court in support of his petition, he cannot meet his burden of showing error. We acknowledge our discretion to consider facts that are conceded in briefing, and the parties do not appear to dispute the accuracy of the police report. (Moore v. Powell (1977) 70 Cal.App.3d 583, 586, fn. 2.) But we decline to exercise that discretion here because doing so would relieve defendant of his burden of proof in the trial court and allow him to present necessary evidence for the first time on appeal, a result incompatible with our role as a reviewing court.
Defendant asserts the police report must have been before the trial court when it ruled on the petition because there is no other possible factual basis for defendant's no contest plea. When the plea was entered in this case, defense counsel stipulated to a factual basis for it but did not specify any particular document as providing the factual basis. Although that practice is permissible, it is not favored since it leads to the type of uncertainty we are confronted with here. (People v. Palmer (2013) 58 Cal.4th 110, 118 [stipulating to a factual basis for plea based on a particular document is desirable to eliminate uncertainty, but the trial court satisfies its duty by merely accepting a stipulation from counsel that there is factual basis].) And since the trial court did not indicate it was relying on facts in the police report in making its ruling, we cannot infer from the record that the court considered the police report sua sponte. (See, e.g., People v. Lowery (2017) 8 Cal.App.5th 533, 537 [relying on the facts in a police report where counsel stipulated at time of plea that police report provided a factual basis, and the trial court commented during Proposition 47 hearing that the record "clearly establishes" the value of the property at issue].) Defendant's argument that he met his burden of proof so long as the police report is contained somewhere in the trial court's file misses the point: that would improperly place the onus on the court to search the file for the evidence necessary to support the petition. A defendant petitioning for resentencing has an obligation to at least provide the trial court with citations to the record indicating where probative evidence is located. (People v. Perkins, supra, 244 Cal.App.4th at p. 141.)
Defendant also argues that his augmenting of the record on appeal to include the police report provides a sufficient basis to grant him relief. We are not persuaded by that argument because a defendant who has the burden of proof on an issue in the trial court does not meet that burden by presenting evidence for the first time on appeal. Defendant had the burden of proof on the issue of his initial eligibility for resentencing under Proposition 47, and he presented no evidence in support of his petition. He therefore necessarily did not meet his burden and we must affirm the order denying the petition. We note, however, that this disposition does not preclude defendant from bringing a new Proposition 47 petition with supporting evidence showing he is entitled to relief under People v. Gonzales, supra, 2 Cal.5th 858. (See People v. Sherow (2015) 239 Cal.App.4th 875, 881.)
III. DISPOSITION
The order denying defendant's petition under Penal Code section 1170.18 is affirmed without prejudice to the filing of a new petition with proper support.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Manoukian, Acting P. J. /s/_________
Mihara, J.