People v. Roth

• Decision Date: 21 November 2017
• Docket Number: B275527,B271932
• Citation: 225 Cal.Rptr.3d 762,17 Cal.App.5th 694
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James ROTH, Defendant and Appellant.

17 Cal.App.5th 694

225 Cal.Rptr.3d 762

The PEOPLE, Plaintiff and Respondent,

v.James ROTH, Defendant and Appellant.

B271932

B275527

Court of Appeal, Second District, Division 4, California.

Filed November 21, 2017

Stephen M. Vasil, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.

WILLHITE, J.

Defendant James Roth pleaded no contest to, and was convicted of, second degree burglary ( Pen. Code,¹ § 459 ), a felony, based upon his entry into a storage locker with the intent to commit larceny. The trial court imposed sentence, but suspended execution and placed defendant on probation. His probation subsequently was revoked after the car he was driving was stopped by the police, who found methamphetamine in a bag that belonged to his passenger. Before the probation violation hearing was conducted, defendant filed a petition under section 1170.18 (part of the Safe Neighborhoods and Schools Act, which was passed by the voters as Proposition 47), asking the trial court to recall and resentence his conviction as a misdemeanor. The trial court granted the petition (without objection by the prosecutor), imposed a misdemeanor sentence, and placed defendant on summary probation. A month later, the court realized it had made a mistake in granting the petition because defendant's conviction did not qualify for recall under Proposition 47, and therefore the misdemeanor sentence was unauthorized. After providing defendant an opportunity to be heard, the trial court vacated the misdemeanor sentence and reinstated defendant's felony conviction and sentence. The trial court subsequently conducted the probation violation hearing, found that defendant had violated probation, and revoked probation and executed the felony sentence.

Defendant appeals from the order finding him in violation of probation and from the trial court's order vacating the misdemeanor sentence and reinstating the felony sentence. With regard to the probation violation, defendant's appointed counsel filed a brief asking this court to independently review the record regarding the probation violation hearing in accordance with the holding of People v. Wende (1979) 25 Cal.3d 436, 441, 158 Cal.Rptr. 839, 600 P.2d 1071. With regard to the trial court's order vacating the misdemeanor sentence and reinstating the felony sentence, defendant contends the trial court violated the bar on double jeopardy found in the California and United States Constitutions ( U.S. Const., 5th Amend.; Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 ; Cal. Const., art. I, § 15 ) by imposing a sentence greater than the misdemeanor sentence it previously had imposed, because the misdemeanor sentence was not unauthorized.

We have reviewed the record of the probation violation hearing, and are satisfied that no arguable issues exist with regard to it. With respect to the reinstatement of the felony sentence, we conclude that the misdemeanor sentence was unauthorized, and therefore the trial court properly vacated it and reinstated the felony sentence.

BACKGROUND

A. Original Conviction

Because defendant pleaded no contest to the original charged crime, our discussion of the facts of the crime is based upon the testimony at the preliminary hearing.

In February 2013, Crecencio Ceballos-Luiz was renting a storage unit at the Extra Space Storage facility in Los Angeles. The storage unit was secured with a lock, for which only Ceballos-Luiz had a key. On February 25, at approximately 6:00 p.m., Ceballos-Luiz was at his storage unit. When he left, he secured the unit with his lock. When he returned to the storage unit on February 27, his key did not work because there was a new lock on the unit. He ultimately gained access to the unit, and discovered that some of his tools were missing.

Defendant rented a storage unit near Ceballos-Luiz's unit at the Extra Space Storage facility. After viewing surveillance footage of the area where both units were located for the dates February 25 and 26, 2013, Los Angeles Police Department Detective Tae Hong interviewed defendant. Defendant admitted breaking into Ceballos-Luiz's storage unit. Defendant told the detective that he cut the lock, rolled open the door, went inside and took a few items, then closed the door and put his own lock on it.

On May 20, 2013, defendant was charged by information with one count of burglary as follows: "On or about February 25, 2013, in the County of Los Angeles, the crime of BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by JAMES ROBERT ROTH, who did enter [a] storage locker with the intent to commit larceny and any felony." The information also alleged four prior prison term enhancements (§ 667.5, subd. (b)), one of which subsequently was dismissed, and a prior strike under the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12).

On January 29, 2014, under a plea agreement, defendant pleaded no contest to the burglary charge and admitted the three prior prison term allegations and prior strike allegation. Defense counsel stipulated to a factual basis for the plea "based on the arrest report and the transcripts." The trial court struck the prior strike allegation, found the burglary to be in the second degree, and imposed a sentence of nine years (which the court described as the upper term of six years, plus one year for each of the three prior prison term enhancements). The court suspended execution of the sentence, placed defendant on probation for 36 months, and ordered him to serve 365 days in a residential drug treatment program.

B. Probation Violations

On June 8, 2015, the trial court revoked defendant's probation after receiving a report that defendant had failed to report for three drug tests. At the initial hearing on the violation, defense counsel explained that defendant had been hospitalized after a serious automobile accident, and upon his release from a one-month stay in the hospital, he entered a live-in drug program in which he is drug-tested. The court ordered a supplemental probation report, and continued the hearing.

At the continued hearing, held on July 21, 2015, the court found that defendant was not in violation of probation and reinstated probation. At 2:30 in the morning the following day, defendant was arrested. The setting of the probation violation hearing was continued for several months while proceedings on this new charge were conducted in a separate case.

C. Proposition 47 Petition

On October 8, 2015, before the probation violation was adjudicated, defendant, represented by private counsel, filed a petition under section 1170.18 to recall his felony sentence and to resentence the conviction as a misdemeanor. In the petition, counsel listed the felony as "§ 459 P.C. (COMMERCIAL BURGLARY)," and indicated that the amount in question was not more than $950.

The hearing on the petition was held on November 12, 2015. At the hearing, the trial court asked the prosecutor whether defendant qualified for a sentence reduction, and the prosecutor responded, "Yes, Your Honor. He has no disqualifying prior felonies." The court then granted the petition, recalled the felony sentence and imposed a misdemeanor sentence under Proposition 47, and placed defendant on summary probation.

A month later, on December 11, 2015, the trial court issued an order to show cause, stating that it "may have improvidently granted [defendant's Proposition 47] petition because defendant's offense does not qualify for relief under Proposition 47 and the misdemeanor sentence is therefore unauthorized." The court pointed out that it retained jurisdiction over the case because the time for filing a notice of appeal from the ruling had not yet lapsed and no notice of appeal had been filed. It also observed that an unauthorized sentence may be set aside at any time while the court retained jurisdiction over the case. (Citing People v. Amaya (2015) 239 Cal.App.4th 379, 384-385, 191 Cal.Rptr.3d 13 ( Amaya ).)

Addressing the facts regarding defendant's conviction, the court noted that defendant pled no contest to burglary, and that the evidence presented at the preliminary hearing was that defendant broke into the victim's storage locker and stole tools. It observed that the elements of the crime of shoplifting, a new misdemeanor offense under Proposition 47, include entry into a commercial establishment with intent to commit larceny of property valued at $950 or less. Citing a decision from Division Five of this District that had been published a few weeks earlier— In re J.L. (2015) 242 Cal.App.4th 1108, 195 Cal.Rptr.3d 482 —that discussed the meaning of "commercial establishment" and shoplifting ( id. at pp. 1114, 195 Cal.Rptr.3d 482 ["a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services"], 1115 ["Shoplifting is commonly understood as theft of merchandise from a store or business that sells goods to the public"] ), the court concluded that the crime to which defendant pled did not qualify as shoplifting because the victim's storage locker was not a business engaged in commerce. Therefore, the court issued an order to show cause why the November 12, 2015 order granting his Proposition 47 petition "should [not] be set aside as unauthorized by Proposition 47 and his felony conviction and sentence reinstated."

Defendant filed a response to the order to show cause in which he argued that his crime qualified as shoplifting because he stole items from a storage locker, which was located in a storage facility, which was a commercial establishment. Therefore, he contended he was entitled to resentencing as a misdemeanor under Proposition 47.

At the hearing on the order to show cause, held on January 21,...