The opinion
Filed 11/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B271932 and B275527
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA410301)
v.
JAMES ROTH,
Defendant and Appellant.
APPEALS from orders of the Superior Court for Los Angeles
County, Katherine Mader, Judge. Affirmed.
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.
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 His probation subsequently was revoked after the car he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
1 Further undesignated statutory references are to the Penal Code.
2
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. 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; 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.
3
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
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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.
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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 (Amaya).)
Addressing the facts regarding defendant’s conviction, the court
noted that defendant pled no contest to burglary, and that the evidence
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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 -- that discussed the
meaning of “commercial establishment” and shoplifting (id. at pp. 1114
[“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,
2016, the trial court reiterated the underlying facts of the crime, and
why it did not constitute shoplifting: “[T]he defendant actually cut a
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lock on a victim’s storage locker, stole some tools and put his own lock
on the inside storage locker. And this occurred between 8:00 and 9:00
p.m. [¶] I don’t believe there is any information in the record as to
whether or not the main storage facility was, in fact, open at that time.
But it’s clear to me that while the storage facility, in fact, may have
been a commercial establishment and perhaps subject to Prop. 47, the
individual storage locker belonging to an individual victim was not a
commercial establishment. The individual storage locker had nothing
to do with buying and selling of goods and services. This is a traditional
second degree burglary.” Therefore, the court set aside the November
12, 2015 order, finding it unauthorized under Proposition 47, and
reinstated the original felony conviction.
D. Probation Violation Hearing
The probation violation hearing was conducted on February 26,
2016 and April 5, 2016. According to the evidence presented at the
hearing, police officer Denward Chin was on patrol at 2:30 a.m. on July
22, 2015, when he saw an older model car without a front license plate
and with a rear paper plate. Officer Chin pulled up behind the car and
activated his patrol car’s red lights and siren. The car did not stop
immediately, and continued driving between five and 20 miles per hour
for a few blocks. Officer Chin followed the car, with his red lights on,
chirping the siren, and shining a spotlight at the rear-view mirror.
While he was following the car, Officer Chin noticed something like
glitter or a reflective powder coming out of the front passenger-side
window. He then saw a baggie with a white substance inside being
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tossed out of the same window. Shortly thereafter, the car made a turn
and pulled over.
Defendant was in the driver’s seat, and Erik Valencia was in the
front passenger seat. They were ordered from the car, and a backpack
was recovered from the front passenger seat. The backpack contained
several cell phones, a bag containing what was determined to be 0.44
grams of methamphetamine, and empty plastic bags. While defendant
and Valencia were being held by other officers, Officer Chin went back
to the area where he saw the baggie being thrown out of the window
and recovered it; it contained what was determined to be 6.88 grams of
methamphetamine.
Both defendant and Valencia testified at the probation violation
hearing. Both testified that the methamphetamine was Valencia’s, and
that defendant did not know that Valencia had methamphetamine until
Officer Chin pulled up behind defendant’s car and Valencia started to
panic. They also testified that they had never met before that morning.
They said they met when they both came to help a mutual friend who
had been kicked out of her apartment move her belongings; after
defendant drove the friend and her belongings to her ex-boyfriend’s
apartment, he agreed to give Valencia a ride.
The director of the residential drug treatment program that
defendant attended also testified; his testimony raised questions about
defendant’s credibility and the veracity of defendant’s story.
The trial court found that defendant was aiding and abetting
Valencia and was consorting with someone who had narcotics for sale,
and therefore violated his probation. In ordering that his sentence be
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executed, the court realized that the original nine year sentence was
incorrect; it had imposed an incorrect upper term of six years, rather
than the correct upper term of three years. Therefore, the court ordered
that the unauthorized sentence of nine years be corrected nunc pro tunc
to a sentence of six years (the upper term of three years, plus one year
for each of the three prior prison term enhancements).
E. Notices of Appeal
On April 29, 2016, defendant filed a notice of appeal from the
April 5, 2016 order finding him in violation of probation and executing
his suspended sentence. That same date, he also attempted to file a
notice of appeal from the January 21, 2016 order in which the trial
court vacated its earlier grant of defendant’s Proposition 47 petition and
reinstated defendant’s felony sentence. The latter notice of appeal was
rejected as untimely.
Defendant filed a motion in this court, asking for relief from
default for his failure to timely file a notice of appeal. His motion was
supported by, among other things, a declaration from Paul J. Cohen, the
privately retained attorney who had represented him in the trial court
proceedings at issue. Mr. Cohen explained that after the trial court’s
January 21, 2016 ruling, defendant indicated that he wanted to appeal,
and Mr. Cohen told him that he would file a notice of appeal on his
behalf. Due to an oversight, Mr. Cohen failed to timely do so. In his
motion, defendant asked that we apply the doctrine of constructive
filing set forth in People v. Slobodion (1947) 30 Cal.2d 362 and In re
Benoit (1973) 10 Cal.3d 72, and grant him relief. We did so, and
10
directed the Los Angeles Superior Court to accept for filing as timely
filed defendant’s notice of appeal.
DISCUSSION
A. Appeal From the Order Reinstating Felony Sentence
Defendant contends on appeal that the trial court did not have
jurisdiction to reinstate his felony sentence after the misdemeanor
sentence had been entered into the court minutes, and that by doing so,
the court violated his federal and state constitutional right to protection
against double jeopardy.
As defendant correctly observes, the California Supreme Court
has held that “a valid sentence may not be increased after formal entry
in the minutes,” because doing so would implicate double jeopardy
concerns. (People v. Karaman (1992) 4 Cal.4th 335, 350 & fn. 16, italics
omitted.) But the Supreme Court also has held that an unauthorized
sentence, such as when the court is required to impose a certain
minimum term but imposes a lesser term instead, “is considered invalid
or ‘unlawful’ and may be increased even after execution of the sentence
has begun.” (Id. at p. 349, fn. 15.) The question presented in this case
is: Was the misdemeanor sentence a valid sentence or an unauthorized
sentence? If the former, the trial court’s ruling vacating the
misdemeanor sentence must be reversed; if the latter, the ruling must
be affirmed. We conclude it is the latter.
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1. Unauthorized Sentences
The issue of unauthorized sentences generally arises in the
context of the waiver doctrine, i.e., whether an appellant may challenge
a sentence on appeal despite having failed to raise an objection below.
(See, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356 (Scott); People v.
Welch (1993) 5 Cal.4th 228, 234-237 (Welch).) As our Supreme Court
has explained, “the ‘unauthorized sentence’ concept constitutes a
narrow exception to the general requirement that only those claims
properly raised and preserved by the parties are reviewable on appeal.”
(Scott, supra, 9 Cal.4th at p. 354.)
The Supreme Court observed that “a sentence is generally
‘unauthorized’ where it could not lawfully be imposed under any
circumstance in the particular case,” and “commonly occurs where the
court violates mandatory provisions governing the length of
confinement.” (Scott, supra, 9 Cal.4th at p. 354.) In such a
circumstance, the sentence is “subject to judicial correction whenever
the error [comes] to the attention of the trial court or a reviewing court,”
even if the correction increases the sentence originally imposed. (People
v. Serrato (1973) 9 Cal.3d 753, 763; see also In re Ricky H. (1981) 30
Cal.3d 176, 191.) In contrast, “claims deemed waived on appeal involve
sentences which, though otherwise permitted by law, were imposed in a
procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p.
354.)
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2. The Misdemeanor Sentence in This Case
As noted, defendant originally was convicted of second degree
burglary, a felony, in January 2014, and a felony sentence was imposed.
In November 2014, California voters approved Proposition 47, which
reclassified as misdemeanors certain drug and theft offenses that
previously had been felonies or “wobblers,” and allowed defendants who
had been convicted of those offenses as felonies to petition to seek
resentencing as misdemeanors. (In re J.L., supra, 242 Cal.App.4th at
pp. 1111-1112; People v. Contreras (2015) 237 Cal.App.4th 868, 889-
890.)
One of those offenses is the crime of “shoplifting,” which was
created by Proposition 47, and codified at section 459.5. That statute
provides, in relevant part: “(a) Notwithstanding Section 459 [i.e., the
burglary statute], 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, [with certain exceptions not at issue here]. [¶] (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.” (§ 459.5.)
Defendant petitioned to have his felony burglary sentence recalled
and be resentenced for misdemeanor shoplifting. Having been told by
the prosecutor -- incorrectly -- that defendant qualified for sentence
13
reduction and that he had no disqualifying felonies, the trial court
granted the petition, vacated the felony sentence, and imposed a
misdemeanor sentence. It subsequently determined, based upon the
evidence that had been presented at the preliminary hearing, that
defendant’s conviction did not qualify as shoplifting because the
burglary involved entry into a storage locker that was leased by an
individual and kept locked, and therefore the locker was not a
commercial establishment. Because defendant’s conviction did not
qualify for resentencing, the court vacated the misdemeanor sentence
and reinstated the felony sentence.
3. The Misdemeanor Sentence Was Unauthorized
In arguing that the misdemeanor sentence was not unauthorized,
defendant seizes on language the Supreme Court used in explaining the
difference between cases involving unauthorized sentences and those
that do not. The Court in Welch noted that cases finding sentences
unauthorized “generally involve pure questions of law that can be
resolved without reference to the particular sentencing record developed
in the trial court.” (Welch, supra, 5 Cal.4th at p. 235.) Defendant
argues, based on this language, that his misdemeanor sentence “was
not unauthorized, for it could not have been corrected without reference
to the facts underlying his record of conviction.”
Defendant looks for support in the reasoning of the appellate court
in Amaya, supra, 239 Cal.App.4th 379, a case with facts similar to the
facts presented here. In Amaya, the defendant sought resentencing
under Proposition 36, which provided for resentencing of certain
14
sentences imposed under the Three Strikes law. (Amaya, supra, 239
Cal.App.4th at p. 381.) Based upon assurances by the prosecutor,
defense counsel, and the court clerk that defendant was eligible for
resentencing, the trial court granted defendant’s request. A month
later, the prosecutor discovered that, in fact, defendant was not eligible
because a disqualifying gang allegation had been found to be true, and
the trial court reinstated the defendant’s original sentence. (Ibid.) The
defendant appealed. Although the appellate court affirmed, it did so on
the ground that the order reducing the sentence was void on its face,
and expressly found that the sentence was not unauthorized because
the record before the trial court at the time it granted the defendant’s
petition (which did not include any evidence showing the gang
allegation had been found to be true) indicated that the defendant was
eligible for sentence reduction. (Id. at pp. 386-387.) Thus, the appellate
court concluded that the reduced sentence did not result in an error
that was “‘“clear and correctable” independent of any factual issues
presented by the record at sentencing,’” and was instead a “‘sentence[]
which, though otherwise permitted by law, [was] imposed in a
procedurally or factually flawed manner.’” (Id. at p. 385, quoting Scott,
supra, 9 Cal.4th at p. 354.)
Respectfully, we disagree with the appellate court’s analysis of
unauthorized sentences in Amaya. It, like defendant’s argument here,
ignores the distinction between a sentencing decision that the trial
court had the discretion to make, although flawed in some way, and one
for which it had no legal authority. This failure to appreciate the
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distinction is illustrated by the Amaya court’s discussion of In re
Alexander A. (2011) 192 Cal.App.4th 847 (Alexander A.), which the
Amaya court states “is closely analogous” to the case before it. (Amaya,
supra, 239 Cal.App.4th at p. 385.)
The Amaya court explained that in Alexander A., the parties
stipulated to a certain amount as an appropriate restitution fine, and
based on that stipulation, the court imposed that amount. The People
later argued that the appropriate amount of restitution was higher, and
that imposition of the lower amount resulted in an unauthorized
sentence. (Amaya, supra, 239 Cal.App.4th at p. 386.) The Amaya court
observed that the appellate court in Alexander A. held that the sentence
was not unauthorized because “the trial court was required to
determine the amount of the victim’s economic losses by some rational
method, and it had done so by accepting the parties’ stipulations.”
(Amaya, supra, 239 Cal.App.4th at p. 386.) The Amaya court found
“almost identical[]” circumstances were present in the case before it:
the trial court made its determination that the defendant was eligible
for resentencing based upon the defendant’s petition, which indicated
that he was eligible, and the prosecutor’s stipulation that he was
eligible. (Ibid.) Therefore, the court held that “[u]nder these
circumstances, the . . . resentencing did not result in an unauthorized
sentence.” (Ibid.)
What the Amaya court overlooked is that while a trial court has
the discretion to determine the appropriate amount of a restitution fine
based upon the facts before it, a trial court does not have any discretion
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to resentence a defendant under Proposition 36 or Proposition 47 unless
the defendant, in fact, qualifies for resentencing. Although the court
acknowledged, in finding that the resentencing was void,2 that
prosecutors “cannot, by stipulation, confer jurisdiction on the trial court
to resentence a person under [Proposition 36] when the trial court’s own
records in the case show that the person is indisputably ineligible,” it
nevertheless found that the fact that the original sentencing minute
order showing that the defendant did not qualify for resentencing was
not before the trial court at the time of resentencing, combined with the
prosecutor’s stipulation that no disqualifying finding had been made,
was relevant to whether the resentencing was unauthorized. (Amaya,
supra, 239 Cal.App.4th at p. 387.) We disagree. Regardless whether
the facts showing the defendant’s disqualification were before the trial
court, the existence of those facts, even if the court was unaware of
2 We note that this finding alone established that the resentencing was
unauthorized. A void sentence -- which cannot lawfully be imposed under
any circumstance -- is by definition an unauthorized sentence. The difference
between the two is that a sentence is void on its face only if “its invalidity is
apparent from an inspection of the judgment roll.” (People v. Davis (1904)
143 Cal. 673, 675.) An unauthorized sentence is not so limited. A court may
go beyond the judgment roll to determine whether a sentence is
unauthorized, such as when determining whether a sentence is unauthorized
because it violates section 654 by imposing multiple punishments for
violations arising out of a single act or omission. (See, e.g., Neal v. State of
California (1960) 55 Cal.2d 11, 17 [court reviewed evidence presented in the
case to determine whether the defendant entertained multiple criminal
objectives that were not incidental to each other]; People v. Perez (1979) 23
Cal.3d 545, 551-552 [same].) Therefore, although a sentence may be
unauthorized even if does not meet the narrow definition of a judgment void
on its face, a sentence pronounced in a void judgment will always be an
unauthorized sentence.
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them at the time, rendered the trial court without any power to
resentence him. Therefore, the sentence was unauthorized because “it
could not lawfully be imposed under any circumstance in the particular
case.” (Scott, supra, 9 Cal.4th at p. 354.)
That is exactly the case here. The trial court could not lawfully
impose a misdemeanor sentence for defendant’s offense unless that
offense qualified as shoplifting under section 459.5. Despite the
prosecutor’s assurances at the time of resentencing, it did not. The
record shows that defendant was charged with entering a storage locker
with intent to commit larceny. He pleaded no contest, and his counsel
stipulated to a factual basis for the plea based in part on the
preliminary hearing transcript. That transcript shows, without
question, that the storage locker at issue was leased by an individual
and kept locked; it was not open to the public as a commercial business.
Therefore, defendant’s entry into the locker to commit larceny did not
constitute shoplifting, and he did not qualify for resentencing under
Proposition 47. (See People v. Stylz (2016) 2 Cal.App.5th 530 (Stylz) [a
privately leased storage locker in a storage facility is not a commercial
establishment under the shoplifting statute].)
In his appellant’s reply brief, defendant argues that at the time
the trial court imposed the misdemeanor sentence, it was not
unauthorized because there were no published decisions at that time
that held that entry into a privately leased storage locker at a storage
facility did not qualify as entry into a commercial establishment. It is
true that our decision in Stylz, supra, 2 Cal.App.5th 530, in which we
affirmed the trial court’s ruling that the defendant’s conviction for
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burglary from a storage locker did not qualify for sentence reduction
under Proposition 47, was not published until after the trial court in
this case imposed the misdemeanor sentence and then vacated that
sentence and reinstated the felony sentence. But we did not announce a
new rule of law in our decision. We merely applied the existing
statutory language, as the trial court in that case had done, and
concluded that the burglary of a storage locker clearly did not come
within the language of the shoplifting statute. The fact that the trial
court in this case did not have the guidance of our published decision
before it reduced defendant’s sentence to a misdemeanor and later
reinstated the felony sentence did not make the misdemeanor sentence
any less unauthorized under Proposition 47.
In short, we hold that the recall of defendant’s felony sentence and
imposition of a misdemeanor sentence was unauthorized. Accordingly,
the trial court acted within its authority by vacating the misdemeanor
sentence and reimposing the felony sentence.
B. Appeal From Order Finding Probation Violation
As noted, in defendant’s appeal from the trial court’s order finding
a probation violation, defendant’s appointed counsel filed a brief asking
this court to independently review the record in accordance with the
holding of People v. Wende, supra, 25 Cal.3d 436. On June 7, 2017, we
advised defendant that he had 30 days in which to submit by letter or
brief any grounds of appeal contentions or argument he wished this
court to consider. We have received no response to date.
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We have examined the entire record and are satisfied that no
arguable issues exist, and that defendant has, by virtue of counsel’s
compliance with the Wende procedure and our review of the record,
received adequate and effective appellate review of the judgment
entered against him in this case. (Smith v. Robbins (2000) 528 U.S.
259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The January 21, 2016 and April 5, 2016 orders are affirmed.
CERTIFIED FOR PUBLICATION
WILLHITE, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
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