People v. Cotton, C081289

CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MARK COTTON, Defendant and Appellant.
Docket NumberC081289
Decision Date10 March 2017


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Mark Cotton entered a plea of no contest to various charges stemming from his attempt to pass a fraudulent check at a bank and his possession of a stolen ATM card. He appeals from denial of his petition to redesignate his felonies for second degree burglary (Pen. Code, § 459)1 and possession of stolen property (§ 496, subd. (a)) as misdemeanors under Proposition 47 (§ 1170.18). He contends entering a bank with theintent to pass a false check constitutes an intent to commit larceny and thus qualifies as misdemeanor shoplifting under section 459.5. He further contends the value of the stolen ATM card was less than $950, so that offense should have been reduced as well.

We agree as to the first point only. As to the second point, we agree that defendant should be permitted to prove the value of the stolen ATM card in his petition for reduction, therefore we affirm without prejudice to his filing a new petition in the trial court which includes information supporting his claim regarding the card's value. We reverse the trial court's order finding no eligibility as to defendant's burglary conviction, and remand for further proceedings.


On May 7, 2009, defendant and a companion entered a Bank of America in Sacramento with the intent to pass a fraudulent check belonging to Michelle Kustin-Hall. The check was in the amount of $175.65. That same day, defendant was in possession of a bank ATM card that had been reported stolen by Godo Fredo Uniciano.

As relevant here, defendant entered pleas of no contest to second degree burglary, receiving stolen property, and identity theft. The trial court sentenced him to five years eight months in prison.

In March 2015 when he was no longer in custody, defendant petitioned for redesignation of his felonies for burglary and receiving stolen property.2 The petition was on a standard form and recited the convictions, cited to various subdivisions of section 1170.18, and requested appointment of the public defender. Although the recorddoes not include the court's ruling on this petition, the court presumably denied it as defendant sought reconsideration.

In the motion for reconsideration, defendant, now represented by counsel, argued count two (burglary) should be redesignated a misdemeanor because the check was for $175.65 and count six (receiving stolen property) should be redesignated a misdemeanor because the ATM card had a value of less than $950.

The court denied reconsideration. It found defendant was not entitled to relief on the burglary count because Bank of America was not a commercial establishment under Proposition 47. Further, the court denied relief on the receiving stolen property count because the court was unable to determine the value of the ATM bank card.

IProposition 47

In November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).) It created a new crime of shoplifting, "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)." (§ 459.5, subd. (a).) Shoplifting is punishable as a misdemeanor unless the defendant has certain disqualifying prior convictions. (Ibid.) Receiving stolen property is now a misdemeanor "if the value of the property does not exceed nine hundred fifty dollars ($950)" unless the defendant has certain disqualifying prior convictions. (§ 496, subd. (a).)

"Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of thatsentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (Rivera, supra, 233 Cal.App.4th at p. 1092.) A person who is resentenced after a petition under subdivision (a) of section 1170.18 is given credit for time served and is subject to parole for one year, unless the court releases the person from parole. (§ 1170.18, subd. (d).)

"Section 1170.18 also provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.' (§ 1170.18, subds. (f); see id., subds. (g)-(h).)" (Rivera, supra, 233 Cal.App.4th at p. 1093.) Unlike the provisions for a defendant currently serving a sentence, "[n]o hearing is required unless requested by the applicant (§ 1170.18, subd. (h)), and if the application satisfies the criteria in subdivision (f), the court 'shall' designate the felony offense as a misdemeanor (§ 1170.18, subd. (g)). There is no provision for any period of parole accompanying the redesignation of the offense as a misdemeanor under subdivision (f), nor does subdivision (f) confer discretion on the court to deny the application based on current dangerousness." (People v. Lewis (2016) 4 Cal.App.5th 1085, 1092 (Lewis).)

IIWhether Subdivision (a) or (f) Applies

Here, defendant's petition for redesignation of his felony convictions did not specify whether he sought relief under subdivision (a) or subdivision (f) of section 1170.18. He checked both boxes. As set forth above, there are different criteria for relief, depending on whether the petitioner is "currently serving a sentence" or has"completed his or her sentence." (§ 1170.18, subds. (a) & (f).) While the petition states defendant is not in custody, on appeal he seeks release from postrelease community service (PRCS). The People took the position that defendant was still serving his sentence because he was on PRCS.

The first question is whether defendant qualifies for the provisions of subdivision (f) of section 1170.18. In Lewis, supra, 4 Cal.App.5th at page 1096, the court held the provisions of subdivision (f) of section 1170.18 apply only "to those persons who have completed their entire sentence, including any period of postrelease supervision, whether through parole or through PRCS." In reaching this conclusion, the Lewis court relied on section 3000, subdivision (a)(1) and People v. Nuckles (2013) 56 Cal.4th 601. Section 3000, subdivision (a)(1) provides in part: "A sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease community supervision." At sentencing, the court must "inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period." (§ 1170, subd. (c).) In Nuckles, supra, 56 Cal.4th at page 608, our high court recognized that parole constitutes part of the punishment for the crime. "Thus, a prison sentence 'contemplates a period of parole, which in that respect is related to the sentence.' [Citation.]" (Id. at p. 609.) The Lewis court reasoned it would be absurd to release felons who had just commenced a period of parole or PRCS from any postrelease supervision, without regard to their current dangerousness. (Lewis, supra, 4 Cal.App.5th at pp. 1095-1096.)

We find the reasoning of Lewis persuasive. Accordingly, we construe defendant's petition for redesignation of his felony convictions to be a petition under subdivision (a) of section 1170.18.

IIISecond Degree Burglary as a Misdemeanor

Defendant contends the trial court erred in not redesignating his second degree burglary conviction as a misdemeanor. He contends Proposition 47 reduced second degree burglary to a misdemeanor, a new crime of shoplifting, where the value taken or intended to be taken does not exceed $950.

A. Commercial Establishment

The trial court denied relief on count two, second degree burglary, because it found a bank was not a commercial establishment within the meaning of Proposition 47. The People do not advance this argument on appeal. We accept the implied concession that a bank is a commercial establishment.3 We find persuasive the recent analysis in People v. Smith (2016) 1 Cal.App.5th 266, review granted September 14, 2016, S236112. (See Cal. Rules of Court, rule 8.115 (e)(1).) In Smith, the establishment at issue was a check cashing business. In interpreting the term "commercial establishment," in section 459.5, subdivision (a), the court looked to dictionary definitions and adopted the definition "a place of business established for the purpose of exchanging goods or services." (Smith, at p. 273.) A commercial bank, such as Bank of America, falls within that definition. The Smith court rejected a narrower interpretation of "commercial establishment" that limited it to "the buying and selling of goods," because the Act "shall be liberally construed to effectuate its purposes." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18, p. 74.) The purpose of the Act was to "[r]equiremisdemeanors instead...

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