People v. Triplett

• Court: California Court of Appeals
• Writing for the Court: Duarte, J.
• Citation: People v. Triplett, 244 Cal.App.4th 824, 198 Cal.Rptr.3d 678 (Cal. App. 2016)
• Decision Date: 08 February 2016
• Docket Number: C078492
• Parties: The PEOPLE, Plaintiff and Respondent, v. Christopher David TRIPLETT, Defendant and Appellant.

244 Cal.App.4th 824

198 Cal.Rptr.3d 678

The PEOPLE, Plaintiff and Respondent,

v.Christopher David TRIPLETT, Defendant and Appellant.

C078492

Court of Appeal, Third District, California.

Filed February 8, 2016

Certified for Partial Publication.^*

Anne V. Moore, 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, Eric L. Christoffersen, Ward A. Campbell, Deputy Attorney General, for Plaintiff and Respondent.

Duarte, J.Defendant Christopher David Triplett appeals from partial denial of his petition to recall his sentence and reduce certain felonies to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (the Act). He contends his two convictions for second degree burglary should be reduced to misdemeanors and the trial court erred in relying on facts outside the record and misunderstood the law. He further contends, for the first time on appeal, that two of his one-year prior prison term enhancements (Pen.Code, § 667.5, subd. (b) )¹ should be stricken.

In the published portion of this opinion, we conclude that in determining a defendant's eligibility for resentencing under the Act, the trial court may consider, in addition to the record of conviction, any facts the parties clearly agree to, as long as such facts only augment, and do not contradict or otherwise detract from, the record of conviction. Here, considering the additional facts agreed to by the parties, we find defendant has established eligibility for resentencing as to one of his two second degree burglary convictions. This requires us to reverse the trial court's order declining to find eligibility as to this prior conviction, and remand for additional proceedings.

We decline to strike defendant's prior prison term enhancements, however, because the Act does not apply retroactively.

BACKGROUND

Defendant's 2014 Convictions

On June 4, 2014, two informations charging defendant were filed in Sutter County Superior Court. The information in case No. CRF–14–0664 (No. 0664), relating to events of February 27, 2014, charged defendant with second degree burglary (§ 459), identity theft (§ 530.5), passing a fictitious check (§ 476), and forgery (§ 470, subd. (d)), all with an on-bail enhancement (§ 12022.1). It further alleged that defendant had eight prior prison terms. (§ 667.5, subd. (b).)

The information in case No. CFR–14–0901 (No. 0901) related to events on February 16, 2014, and February 19, 2014. It charged defendant with two counts of second degree burglary (§ 459), two counts of passing a fictitious check (§ 476), and two counts of forgery (§ 470, subd. (d)), all with an on-bail enhancement (§ 12022.1). It was alleged that defendant had eight prior prison terms. (§ 667.5, subd. (b).)

The parties negotiated a resolution and defendant executed plea agreements in both cases. (CT 24–45) In case No. 0664, defendant agreed to plead to one count of second degree burglary and admit four prior prison terms.² The factual basis for the burglary was stated as: "In Sutter County, California, on 2/27/2014[,] the defendant entered Wells Fargo on Stabler Lane in Yuba City with the intent to commit a theft [therein] with a fraudulent check." In case No. 0901, defendant agreed to plead to one count of second degree burglary (§ 459) and one count of passing an altered or fictitious check (§ 476). The factual basis for the plea was: "In Sutter County, California, on 02/26/2014[,] the defendant did enter SR Food and Liquor with the intent to commit a theft therein and while inside SR Food and Liquor the defendant did cash a fraudulent check from Butte [C]ommunity [Bank]."³

The court sentenced defendant to a split term of eight years four months, four years to be served in custody and four years four months on mandatory supervision.

Petition to Recall Sentence

In November 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act. The Act "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, 183 Cal.Rptr.3d 362 (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. ) The Act also provided a procedure under section 1170.18, subdivision (a) for a defendant serving a sentence for a felony that would be a misdemeanor under the Act to petition the court for recall of sentence.

After the passage of the Act, defendant wrote the trial court (in propria persona) requesting that his cases be brought back to court to apply Proposition 47 for reduction of his sentence. In response, the court set a hearing and appointed counsel for defendant. The People took the position that neither of defendant's two burglary convictions qualified for resentencing under the Act.

At the hearing, the court stated it would first hear from the People because they had filed an objection. The prosecutor began: "In case 0664 the charge is a 459 second; however, we believe that it is not entitled to resentencing because the entry was into Wells Fargo Bank and the defendant attempted to cash a check belonging to another person which would be an identity theft and, therefore, it would be entering the bank with the intent to commit a felony, identity theft." After clarifying that the check was written off someone else's account, the prosecutor continued: "In case 0901, it would be the same argument as to the 459 second and the defendant entered SR Food and Liquor and attempted to cash two checks belonging to another person which again would be the identity theft issue; however, he would be entitled to resentencing on the 476 [fictitious check count] because the amounts were less than $950."

The court then asked defense counsel: "Mr. Van den Heuval, with respect to the first case [case No. 0664] there is the factual basis that he was entering Wells Fargo Bank with the intent to pass a check. The second case [case 0901] do you accept the representation of [the prosecutor] as to the facts?" Counsel answered "yes" and the court clarified counsel agreed that defendant entered to pass a bad check. But counsel argued defendant pleaded in both cases to entering with the intent to commit larceny, not identity theft. Counsel further argued that all three of defendant's crimes were in amounts under $950, so all three counts of conviction—the two burglaries as well as the fictitious check charge—should be reduced to misdemeanors.

The trial court opined that the Act did not apply to the second degree burglary convictions because defendant's behavior was not "what was envisioned by the proposition or the voters when they voted for" Proposition 47. But because the People had agreed the Act applied to reduce the fictitious check conviction to a misdemeanor, the court reduced it. The court resentenced defendant to a total term on both cases of seven years eight months. The sentence was split; defendant would serve four years in custody and three years eight months on mandatory supervision pursuant to section 1170, subdivision (h).

Defendant petitioned for a writ of habeas corpus, alleging "failure to follow Prop. 47 re-sentencing." His petition was denied.

DISCUSSION

I

Reducing Second Degree Burglary to Misdemeanor

Defendant contends the trial court erred in considering facts outside the record of conviction to support its conclusion that defendant undertook both burglaries with the intent to commit identity theft. The record, specifically the factual bases set forth in the plea agreements, states defendant entered Wells Fargo Bank and SR Food and Liquor only with the intent to commit theft. The prosecutor had proffered that the intent was to commit identity theft, but defendant had objected to the court's considering this disputed fact. Defendant adds that the trial court's finding—limiting shoplifting—reflected a misunderstanding and consequent misapplication of the law.

A. Prima Facie Case

The People respond first that the trial court could have denied defendant's petition at the outset because it failed to set forth a prima facie case for relief. Defendant, as petitioner, has 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, 191 Cal.Rptr.3d 295 ; People v. Rivas–Colon (2015) 241 Cal.App.4th 444, 449, 193 Cal.Rptr.3d 651.)

The People, however, fail to set forth what constitutes a prima facie case or how the petition was defective. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106, 87 Cal.Rptr.2d 754.) We decline to do so here.

This proceeding for recall and resentencing was triggered by defendant's letter to the court. The court set a hearing and appointed counsel for defendant, and the People filed responses. Neither the court nor the People addressed the sufficiency of the letter as a petition under section 1170.18, subdivision (a), or required the defense to make a proper prima facie showing for eligibility under the Act at the hearing. Instead, the focus of the hearing was whether the three prior convictions qualified for reduction to misdemeanors.⁴

B. Agreed–Upon Facts

Next, the People argue that the court was entitled to rely on the prosecutor's representations regarding the record at the hearing, and the representations were "responsible and reliable." To the extent that these representations were outside the...