People v. Romero CA4/1
- Proceeding
- appeal from orders
- Trial court
- Superior Court of Imperial County · No. JCF32359, JCF33505
- Trial judge
- Poli Flores
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- delinquency
- Panel
- Patricia D. Benke (author), Judith L. Haller, Joan K. Irion
Analysis
The trial court denied the defendant's petitions for resentencing under Penal Code section 1170.18, reasoning that second-degree burglary under section 459 was not eligible for reclassification under Proposition 47. The Court of Appeal reversed and remanded, holding that the trial court erred in concluding the offenses were ineligible and directing it to determine if the defendant had disqualifying factors.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petitions for relief under Penal Code section 1170.18“The trial court erroneously concluded appellant did not qualify for resentencing, and did not reach the question of whether disqualifying factors in her history exist.” | de novo | error | agree with court The appellate court correctly identified that the trial court applied the wrong legal standard by excluding section 459 offenses from Proposition 47 eligibility. The court properly noted that section 1170.18, subdivision (a) explicitly includes section 459.5, which covers second-degree burglary, making the offenses presumptively eligible for reclassification. The remand is appropriate because the record lacks the necessary findings on disqualifying factors such as prior convictions or public safety risks. |
The appellate opinion: sound — The opinion is sound because it correctly applies the text of section 1170.18, subdivision (a), which explicitly includes section 459.5 offenses, thereby correcting the trial court's legal error. It appropriately remands for factual determinations on disqualifying factors that were not addressed below.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court denied Karina Romero's Penal Code section 1170.18 (Proposition 47) petitions to resentence two second degree commercial burglary convictions, each involving retail merchandise worth under $950, reasoning that section 459 offenses fall outside Proposition 47. The Court of Appeal, with the People conceding error, reversed because section 1170.18, subdivision (a) expressly lists shoplifting under section 459.5, and remanded for the trial court to determine whether any disqualifying prior convictions or an unreasonable risk to public safety bars misdemeanor resentencing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.18 resentencing petitions on the ground that second degree burglary under section 459 is categorically outside Proposition 47“The trial court erroneously concluded appellant did not qualify for resentencing, and did not reach the question of whether disqualifying factors in her history exist.” | unclear | error (statutory interpretation) | agree with court Section 1170.18, subdivision (a) expressly includes section 459.5 (shoplifting) among the offenses eligible for resentencing, and section 459.5 reclassifies as misdemeanor shoplifting what would otherwise be commercial burglary where the property taken is worth $950 or less. Both of appellant's offenses were thefts of retail merchandise valued at $639.99 and $51.97, so a categorical ruling that section 459 convictions can never be resentenced misreads the statute. The opinion does not state a standard of review, but the question is one of statutory interpretation. The opinion properly declines to order misdemeanor treatment outright and remands for the eligibility inquiry (disqualifying priors under section 459.5, subdivision (a), and dangerousness under section 1170.18, subdivisions (b) and (c)), although it does not discuss the section 459.5 element that the entry occur during regular business hours. |
The appellate opinion: sound with gaps — The result is correct: section 1170.18, subdivision (a) plainly names section 459.5, so a blanket ruling that section 459 convictions are ineligible was legal error, and remand for the eligibility and dangerousness inquiry is the proper disposition. The opinion is very brief, rests largely on the People's concession, cites no case authority, does not state a standard of review, and does not mention that section 459.5 also requires the entry to have occurred during regular business hours, a factual element the trial court will need to resolve on remand.
How this analysis was made · dispute it
record incompleteOpinion
Filed 7/16/15 P. v. Romero CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067208
Plaintiff and Respondent, v. (Super. Ct. Nos. JCF32359, JCF33505) KARINA MICHELLE ROMERO, Defendant and Appellant.
APPEAL from orders of the Superior Court of Imperial County, Poli Flores, Judge. Reversed and remanded with directions.
Christian C. Buckley, under appointment by the Court of Appeal for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kristen Hernandez, Deputy Attorneys General, for Plaintiff and Respondent. BACKGROUND On January 10, 2014, appellant pled guilty to a second degree burglary that occurred on January 5, 2014, in violation of Penal Code1 section 459 (case No.
JCF32359). That case involved merchandise valued at $639.99. Appellant was given a three year suspended sentence and placed on three years of formal probation. On September 3, 2014, appellant pled no contest to one count of second degree commercial burglary in case No. JFC33505, occurring on June 6, 2014. That case involved merchandise valued at $51.97.
On September 23, 2014, appellant admitted she violated the probation granted to her in case No. JCF32359. On October 21, 2014, she was sentenced to 16 months of county imprisonment in case No. JCF33505, and 365 days on case No. JCF32359. The sentences were ordered to run concurrently.
On November 19, 2014, appellant filed petitions for relief under section 1170.18 as to both cases. Appellant argued that if her offenses had been committed after passage of Proposition 47, they would qualify as misdemeanors.
On December 12, 2014, a combined hearing was held and the court denied both of appellant's petitions.
Appellant filed timely notices of appeal in both cases.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 DISCUSSION
As the parties note, this case arises from appellant's convictions in Imperial County, for second degree burglary under section 459 in that on two separate occasions appellant stole merchandise from a retail store, said merchandise valued under $950.
Based on section 1170.18 and Proposition 47, appellant sought resentencing on both convictions. The request was denied, the trial court reasoning that section 459 does not fall within the benefits of Proposition 47.
Appellant's sole contention on this appeal is that the trial court erred because section 1170.18, subdivision (a) expressly states an inmate can be resentenced under section 459.5 and this allows appellant to be resentenced. The People concede this point and we agree.
Appellant's convictions for second degree burglary appear to qualify for resentencing under section 459.5. Both involved the taking of merchandise under $950.
Pursuant to Proposition 47, they qualify generally for misdemeanor sentencing. A second inquiry however must be made, that is, whether any factor disqualifies appellant from misdemeanor treatment under section 1170.18, subdivision (a). The trial court erroneously concluded appellant did not qualify for resentencing, and did not reach the question of whether disqualifying factors in her history exist.
Because we do not know from this record whether appellant has any disqualifying prior convictions under section 459.5, subdivision (a), or whether it would be determined 3 she poses an unreasonable risk to public safety pursuant to section 1170.18, subdivisions (b) and (c), we remand this matter to the trial court.
DISPOSITION
The orders denying appellant's petitions are reversed. The matter is remanded and the trial court is directed to determine whether appellant is eligible for resentencing under section 1170.18, subdivisions (b), in case Nos. JCF32359 and JCF333505.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.