People v. Jennings

• Decision Date: 26 November 2019
• Docket Number: D074352
• Citation: 42 Cal.App.5th 664,255 Cal.Rptr.3d 713
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brian Christopher JENNINGS, Defendant and Appellant.

42 Cal.App.5th 664

255 Cal.Rptr.3d 713

The PEOPLE, Plaintiff and Respondent,

v.Brian Christopher JENNINGS, Defendant and Appellant.

D074352

Court of Appeal, Fourth District, Division 1, California.

Filed November 26, 2019

John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Marvin E. Mizell and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

HALLER, J.

Brian Christopher Jennings appeals a judgment following his jury conviction on four counts of burglary ( Pen. Code, § 459 )¹ and one count of attempted burglary ( §§ 664, 459 ). Jennings challenges only his count 3 burglary conviction, which offense involved his alleged entry into a commercial establishment with intent to commit larceny while that establishment was open during regular business hours. Proposition 47, enacted in 2014, created a new misdemeanor offense of "shoplifting," as set forth in section 459.5, subdivision (a), providing: "Notwithstanding Section 459, shoplifting is 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). Any other entry into a commercial establishment with intent to commit larceny is burglary...."

On appeal, Jennings contends that because the new section 459.5 shoplifting offense was "carved out" of the general section 459 burglary offense, the prosecution was required, in the circumstances of this case, to prove that he intended to take property with a value exceeding $950. He further contends that because there is insufficient evidence to support a finding that he intended to take property with a value exceeding $950, his count 3 burglary conviction must be reversed. Alternatively, he contends the trial court prejudicially erred by not sua sponte instructing the jury on the prosecution’s duty to prove beyond a reasonable doubt the elements of burglary, including proof that he intended to take property with a value exceeding $950. In his supplemental letter brief, he argues that newly enacted Senate Bill No. 136, which amended section 667.5, subdivision (b), to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, should be applied retroactively to his case pursuant to In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ) and therefore his one-year prior prison term enhancement under section 667.5, subdivision (b), should be stricken.

As discussed below, we conclude that Proposition 47 changed the definition of burglary to exclude from that offense an entry of a commercial establishment with intent to commit larceny of property with a value of $950 or less while that establishment is open during regular business hours, which conduct now constitutes the misdemeanor offense of shoplifting under section 459.5. We conclude there is insufficient evidence to support a finding that Jennings intended to take property with a value exceeding $950 when he entered the commercial establishment in count 3. We further conclude that the trial court prejudicially erred by not instructing sua sponte on the $950 property value requirement for the count 3 burglary charge. Finally, we agree Senate Bill No. 136 applies retroactively to Jennings’s case pursuant to Estrada and therefore reverse the court’s imposition and execution of a consecutive one-year section 667.5, subdivision (b) prior prison term enhancement. Accordingly, we reverse his count 3 burglary conviction and one-year section 667.5, subdivision (b) prior prison term enhancement and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

An amended information charged Jennings with five counts of burglary ( § 459, counts 1 through 5) and one count of attempted burglary ( §§ 664, 459, count 6). The amended information also alleged that Jennings: (1) was ineligible for probation pursuant to section 1203, subdivision (e)(4); (2) had served five prior prison terms within the meaning of sections 667.5, subdivision (b), and 668; (3) had been convicted of a serious felony within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, subdivision (c); and (4) had been convicted of a serious or violent felony within the meaning of sections 667, subdivisions (b) through (i), 668, and 1170.12.

Jennings waived his right to counsel and represented himself at trial. Prior to trial, he admitted the truth of the prior conviction allegations.

Count 2.² At trial, the prosecution presented evidence showing that on December 24, 2016, Jennings committed a burglary of the office of Planck Aero Systems (count 2). Jennings and a male accomplice took two high-end commercial drones and their two hard plastic "Pelican" carrying cases from the office. One drone had a hardware value of about $2,000 and the second drone had a hardware value of about $3,000 to $5,000. Their retail prices were between $19,000 and $25,000 each.

Count 3. The prosecution also presented evidence showing that on January 6, 2017, Jennings entered the Discount Hobby Warehouse in Kearny Mesa with a drone. The store sold radio-controlled (RC) cars, helicopters, and drones. John Weaver, the store’s owner, testified that Jennings asked him whether he could trade the drone for an RC car or truck. However, Weaver was not interested in the drone and Jennings left the store without any of the store’s merchandise.

In his defense, Jennings testified that he knew the drone was stolen when he took the drone to the hobby store. His intent was to get rid of the drone by trading it for "a small RC or something for my neighbor," explaining that his neighbor had four children.

Verdict and sentencing. The jury found Jennings guilty on counts 2 through 6. Because the jury was unable to reach a verdict on count 1, the court declared a mistrial on, and later dismissed, that count. The court sentenced him to a four-year prison term for his count 2 burglary, consecutive 16-month terms for each of his other burglary convictions (counts 3, 4, and 5), a consecutive eight-month term for his count 6 attempted burglary conviction, and a consecutive one-year term for one of the prior prison term enhancements, for a total prison term of nine years eight months.³ Jennings timely filed a notice of appeal. On August 2, 2019, we requested supplemental letter briefs by the parties on the impact of In re E.P. (2019) 35 Cal.App.5th 792, 247 Cal.Rptr.3d 587 ( E.P. ), which opinion was issued after the parties’ briefs were filed in this case. At oral argument on October 18, 2019, we requested supplemental letter briefs to be filed by the parties within 30 days on the application to this case of Senate Bill No. 136, which was enacted on October 8, 2019, after the parties’ briefs were filed in this case.

DISCUSSION

IProposition 47 and New Crime of Shoplifting

In November 2014, "the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. [Citation.] The Act also added several new provisions, including ... section 459.5, which created the crime of shoplifting." ( People v. Gonzales (2017) 2 Cal.5th 858, 863, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ).) "Proposition 47 changed the law by defining a new crime of misdemeanor shoplifting and, in effect, ‘carving out’ this ‘lesser crime’ from the ‘preexisting felony’ [of burglary]." ( People v. Colbert (2019) 6 Cal.5th 596, 602, 242 Cal.Rptr.3d 665, 433 P.3d 536 ( Colbert ), quoting People v. Martinez (2018) 4 Cal.5th 647, 651, 230 Cal.Rptr.3d 673, 413 P.3d 1125.) "Through its various provisions, Proposition 47 made clear that certain types of criminal conduct once punishable as felonies now constitute only misdemeanors." ( Martinez , at p. 651, 230 Cal.Rptr.3d 673, 413 P.3d 1125.) The Legislative Analyst explained in the Proposition 47 voter pamphlet: "Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under [Proposition 47], shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Voter Information Guide, Gen. Elect. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, quoted in Gonzales , at pp. 869-870, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Therefore, section 459.5 shoplifting is " ‘always’ ... classified as [a] misdemeanor[ ] when the value of property [is] $950 or less." ( Gonzales , at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437.)

New section 459.5, enacted by Proposition 47, provides:

"(a) Notwithstanding Section 459, shoplifting is 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor ....

"(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."

The new misdemeanor crime of shoplifting "covers conduct that previously would have been classified as a burglary." ( E.P. , supra , 35 Cal.App.5th at p. 797, 247 Cal.Rptr.3d 587.)

Section 459 defines the offense of burglary, providing in pertinent part that a "person who enters any ... store ... with the intent to commit grand or petit larceny or any felony is guilty of burglary."...