Opinion
A150768
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. DUANE SCOTT JOACHIM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR617792)
Duane Scott Joachim appeals from the trial court's denial of his petition to reduce his second degree burglary conviction (Pen. Code, § 459) from a felony to a misdemeanor pursuant to section 1170.18. Having reviewed the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende), we find no arguable appellate issue and affirm.
Unless noted, all further statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
In March 2013, the Sonoma County Superior Court convicted Joachim of second degree burglary. In December 2016, Joachim petitioned the court "to recall the conviction and redesignate" the crime a misdemeanor. (§ 1170.18, subd. (a).) At the time of filing the petition, Joachim was incarcerated, but he was not "serving time on this case."
The court denied the petition. First, on a form entitled "Minutes, Response, and Order on Petition for Resentencing (PC 1170.18)," the District Attorney stated Joachim was not eligible because "[t]he facts of this 459 - 2nd don't constitute shoplifting." The same form indicates that, a week later, the court denied the petition. About seven weeks after this denial, the court held a hearing on the petition, where Joachim was represented by the Public Defender, and the court decided "to keep that denial in place."
DISCUSSION
Joachim appealed. His appointed counsel filed an opening brief requesting this court to review the record to determine whether there are any arguable issues. Counsel informed Joachim he had the right to file a supplemental brief on his own behalf, but Joachim declined to do so.
We have reviewed the record pursuant to Wende and find no reasonably arguable appellate issue. Appointed counsel draws our attention to items in the record " 'that might arguably support the appeal.' " First, he questions whether Joachim was "deprived of actual judicial review" because the second judge denied the petition "based solely on her belief that another unidentified judge had previously denied it." Second, he asks whether the court erred in "summarily" denying the petition "without any hearing" and where there was "no factual basis" for the court's determination. Third, he asks whether the court deprived Joachim of his right to due process where his petition "affirmatively pleaded that he met the criteria for Prop[.] 47 resentencing . . . and the District Attorney's pro forma opposition offered no details or elaboration other than the bare assertion that the burglary did not qualify as shoplifting."
These questions do not raise reasonably arguable appellate issues. Joachim had the initial burden of proof "to establish the facts upon which his . . . eligibility is based." (People v. Sherow (2015) 239 Cal.App.4th 875, 880.) "The defendant must attach information or evidence necessary to enable the court to determine eligibility." (People v. Perkins (2016) 244 Cal.App.4th 129, 137; see also People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450 [affirming denial of petition for resentencing where "petition was completely 'devoid of any information about the offense[]' "].)
Here, Joachim's petition, and the attached abstract of judgment, provide no information regarding the facts of his offense. As a result, Joachim did not provide the superior court with information that would allow it to "determine whether the petitioner satisfies the criteria in subdivision (a)." (§ 1170.18, subd. (b).) The court held a hearing on Joachim's petition, and, at that hearing, the Public Defender stated she had nothing to add to the petition or to the District Attorney's response. Accordingly, based on Joachim's failure to meet his initial burden of proof, the court's denial of his petition was correct, and Joachim was not deprived of his right to due process or actual judicial review.
To forestall a claim of ineffective assistance of counsel, or a claim that our affirmance of the denial of Joachim's petition should be without prejudice, we note that Joachim's offense does not qualify for resentencing or reclassification as misdemeanor shoplifting. (§ 1170.18, subd. (a).) Section 459.5 provides in part that "shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours . . . ." A commercial establishment means "a place of business established for the purpose of exchanging goods or services." (People v. Abarca (2016) 2 Cal.App.5th 475, 481; see also In re J.L. (2015) 242 Cal.App.4th 1108, 1114 [commercial establishment "is one that is primarily engaged in commerce, that is, the buying and selling of goods or services."].)
Here, the record on appeal contains a copy of the transcript of Joachim's preliminary examination, which establishes the site of the burglary consisted of a primary residence, a guest house, and a home office. The property was located "down a long driveway behind a gate," and it was "surrounded by a tall fence." There was no indication anyone other than the owner, his wife, and their adult children had access to the property. Thus, Joachim's conviction was not based on the burglary of a commercial establishment, and he is not eligible for resentencing or reclassification of the offense.
The denial of Joachim's petition is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.