People v. Jackson

• Decision Date: 30 November 2016
• Docket Number: F071351
• Citation: People v. Jackson, F071351 (Cal. App. Nov 30, 2016)
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOHN RICHARD JACKSON, JR., Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JOHN RICHARD JACKSON, JR., Defendant and Appellant.

F071351

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

November 30, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Fresno Super. Ct. No. F14904982)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Hilary A. Chittick, Judge.

Sylvia W. Beckham, 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, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant John Richard Jackson, Jr., pleaded no contest to felony second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),¹ admitted three prior prison term enhancements (§ 667.5, subd. (b)), and was sentenced to five years pursuant to a negotiated disposition. After the passage of Proposition 47, he filed a petition for recall and resentencing of his felony offense to misdemeanor shoplifting in a commercial establishment of property worth no more than $950 (§ 459.5, subd. (a)). The court denied the petition.

On appeal, appellant argues the court should have granted his petition because he made a prima facie showing that his felony conviction should be reduced to a misdemeanor. Appellant further argues the People improperly relied on the probation report to show that he committed the offense in a vacant house and was ineligible for resentencing. Appellant contends the court was limited to considering evidence from the "record of conviction" to decide a petition filed pursuant to Proposition 47, and the court's apparently reliance on the probation report was erroneous and requires reversal.

As we will explain, appellant had the burden to show that his offense constituted misdemeanor shoplifting, and the court properly denied his petition based on the evidence before it. We affirm.

FACTS

The primary issue in this case concerns the facts underlying appellant's conviction for second degree burglary. As we will explain, appellant entered a plea before the preliminary hearing was conducted. We will thus focus on the sequential procedural history of the criminal proceedings, and the facts that emerged as the case proceeded.The complaint

On May 27, 2014, the complaint in case No. F14904982 was filed in the Superior Court of Fresno County, and it charged appellant with two felonies. In count I, he was charged with receiving stolen property belonging to Raul Zambrano on or about March 26, 2014 (§ 496, subd. (a)).

In count II, the complaint alleged the following offense:

"On or about February 17, 2014 through March 1, 2014,... the crime of SECOND DEGREE COMMERCIAL BURGLARY, in violation of PENAL CODE SECTION 459/460(b), a felony, was committed by [appellant], who did unlawfully enter a commercial building to wit, Raul Zambrano, with the intent to commit larceny or any felony." (Italics added.)

Appellant was also charged with two misdemeanors: count III, possession of an injective device, and count IV, possession of a smoking device, on or about March 1, 2014 (Health & Saf. Code, § 11364.1, subd. (a)). It was alleged that appellant had nine prior prison term enhancements (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.

Plea proceedings

On June 25, 2014, appellant appeared with his attorney and entered into negotiated dispositions for several cases.

Defense counsel stated that in case No. F14904982, appellant would plead no contest to "Count Two, a violation of Penal Code Section 459/460(b)," and admit three prior prison term enhancements for a stipulated term of five years. Defense counsel clarified it was not a split sentence, and that after appellant completed the five-year "AB109 term, he would not be on probation or parole." The prosecutor confirmed the terms of the negotiated disposition.

The court noted that appellant had signed a written plea and waiver form. The form stated that he would plead no contest to "Ct. 2 - PC459/460(a)" and admit prior prison term enhancements for a stipulated term of five years.

The court advised appellant of the terms of the negotiated disposition and his constitutional rights. Appellant acknowledged and agreed to the terms, and he waived his constitutional rights.

The court took appellant's plea:

"THE COURT: To the allegation in Count Two ..., it's alleged that on or about the date of February 17, 2014, you committed a violation, a felony violation of [section] 460(b) of the Penal Code, commonly referred to as second degree commercial burglary. The allegation is that on or about that date, you unlawfully entered a commercial building and the allegation is that when you entered that building, you had the intent to commit larceny, which larceny is just a lawyer's word for theft. So the allegation is that when you entered the building, you had the intent to commit theft or some felony in that building. Do you understand the allegation in Count Two? This is a felony." (Italics added.)

Appellant said he understood, and he pleaded no contest to count II.²

Appellant admitted three of the prior prison term enhancements alleged in the complaint, based on his felony convictions for possession of a controlled substance (Health & Saf. Code, § 11377) in Fresno County Superior Court case No. F01914960-0 in 2002; case No. F05903928-0 in 2005; and case No. F06906160 in 2006.

The court asked the parties about the factual basis for the plea:

"THE COURT: Ms. Negin [defense counsel], you join in these waivers, concur in these pleas and stipulate to a factual basis for these pleas based on the supply of police reports from the DA's office and a discussion with [appellant] of the elements and possible defenses to these charges?

"MS. NEGIN: By the defense.

"MS. DRAKE: Stipulated by the People." (Italics added.)

Neither the court nor the parties read any part of these police reports into the record, or identified the reports to which they were referring.

The court granted the prosecutor's motion to dismiss the remaining counts and enhancements in case No. F14904982 and also dismissed another case in light of the plea. The court found that based on the plea, appellant violated the terms of his mandatory supervised release in other cases. Defense counsel stipulated to the violations. The court set the matter for a sentencing hearing.

The probation report

A probation report was prepared in case No. F14904982, dated July 28, 2014. The report recited the following facts for appellant's second degree burglary plea, and stated these facts were "obtained from the Fresno Police Department Crime Report #(s) 14-015173."

"On March 1, 2014, at approximately 4:57 p.m., a Fresno Police Department officer was dispatched to a local address regarding a prior burglary of a vacant residence. Upon arrival at the scene, the officer spoke with the victim who reported he checked on the residence on February 17, 2014. When he returned on this day, he found several signs of damage. An air compressor was 'gutted' and a furnace was removed from the attic. The backyard to the residence was missing wood from a fence. The shed in the backyard was also ransacked.

"During the investigation, the officer was able to produce nine latent fingerprint cards from inside of the residence. Some of the prints were taken from a wine glass, two from in the interior of a bedroom window, one from a medicine bottle and one from a tray. One of the latent prints on the wine glass matched to the prints of [appellant].

"When [appellant] was contacted on March 26, 2014, he was found in possession of Social Security cards belonging to the victim's grandchildren. The victim reported that the cards were taken from the basement of his residence. In his interview, he admitted to breaking into the residence and sleeping there." (Italics added.)

It is not entirely clear when defendant "admitted to breaking into the residence and sleeping there," and whether he made that admission to the police during the investigation, or to the probation officer after his plea. The report summarized appellant's lengthy criminal record of property and drug convictions, and his prior poor performance on probation.

The sentencing hearing

On July 28, 2014, the court conducted the sentencing hearing in case No. F14904982 and other pending cases. The court reviewed the probation report and noted that the current negotiated disposition was for the stipulated term of five years.

The court found appellant was not eligible for probation, and there were no unusual circumstances. The court imposed the midterm of two years for count II, second degree burglary, with three consecutive one-year terms for the prior prison term enhancements, for an aggregate term of five years pursuant to the negotiated disposition, to be served in county jail pursuant to section 1170, subdivision (h)(5).

PROPOSITION 47

On November 4, 2014, California voters approved Proposition 47, and it went into effect the following day. (Rivera, supra, 233 Cal.App.4th at p. 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.)

Proposition 47, codified in section 1170.18, reduced the penalties for a number of offenses. "Among those crimes are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such...