People v. Aguirre CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS269591
- Trial judge
- Garry G. Haehnle
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith L. Haller (author), Alex C. McDonald, Gilbert Nares
Analysis
The trial court convicted the defendant of commercial burglary and sentenced him to two years in local confinement. The Court of Appeal affirmed the judgment, holding that Proposition 47 does not apply retroactively to his pending appeal and that he must utilize the specific petition procedure in Penal Code section 1170.18 to seek resentencing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Whether Proposition 47 applies retroactively to a defendant whose judgment was not final when the measure became effective, thereby entitling them to automatic reduction of their sentence.“We agree with our court's rationale in DeHoyos, and find it controls here.” | unclear | error | agree with court The court held that the trial court's refusal to automatically reduce the sentence was correct because Proposition 47 does not apply retroactively to non-final judgments. The court relied on its own unpublished precedent, People v. DeHoyos, to conclude that the defendant must instead petition for resentencing under the newly created section 1170.18. This aligns with the statutory text of section 1170.18, which explicitly limits the remedy to those 'currently serving' a sentence who file a petition, rather than providing for automatic application to pending appeals. |
Authorities
- relied: People v. Lynall (2015) 233 Cal.App.4th 1102 — Defines the procedure for petitioning to recall a sentence under section 1170.18 and notes the court's discretion to deny resentencing if it poses an unreasonable risk to public safety.
- relied: People v. DeHoyos (2015) 2015 Cal.App. LEXIS 582 — Holds that Proposition 47 does not apply retroactively to defendants whose judgments were not final when the measure became effective, requiring them to use the section 1170.18 petition process.
The appellate opinion: sound — The opinion is sound because it correctly identifies that Proposition 47 created a specific statutory mechanism (section 1170.18) for resentencing, which supersedes any argument for automatic retroactive application to pending appeals. The court appropriately relies on its own prior unpublished decision, DeHoyos, which directly addresses the retroactivity issue and aligns with the statutory language limiting the remedy to those 'currently serving' a sentence.
How this analysis was made · dispute it
unusual dispositionThe trial court entered judgment on a jury verdict convicting Aguirre of felony commercial burglary (Pen. Code, § 459) for entering a Walmart during business hours intending to steal about $200 in merchandise, and sentenced him to two years in local custody under section 1170, subdivision (h). On appeal Aguirre argued that Proposition 47, enacted while his appeal was pending, applied retroactively to his nonfinal judgment and automatically reduced the conviction to misdemeanor shoplifting; the Court of Appeal disagreed, held his sole remedy is a petition under section 1170.18, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Felony judgment and sentence for commercial burglary stands; Proposition 47 (§§ 459.5, 1170.18) does not retroactively and automatically reduce the conviction to misdemeanor shoplifting for a defendant whose judgment was not final when the measure took effect, and the defendant must instead use the recall-and-resentencing petition procedure of section 1170.18.“We agree with our court's rationale in DeHoyos, and find it controls here.” | unclear | correct | agree with court The opinion does not state a standard of review, though the question (retroactive application of a statute) is a pure question of law ordinarily reviewed de novo. The court's result is defensible: Proposition 47 created a specific mechanism in section 1170.18 for persons 'currently serving' felony sentences for offenses now classified as misdemeanors, which supports the inference that the electorate intended that procedure, rather than automatic Estrada retroactivity, to govern nonfinal cases; the California Supreme Court later endorsed this reading in People v. DeHoyos (2018) 4 Cal.5th 594 and reached the parallel result for Proposition 36 in People v. Conley (2016) 63 Cal.4th 646. The weakness is that the opinion does not itself engage In re Estrada or explain why its presumption is rebutted, deferring entirely to the then-recent DeHoyos Court of Appeal decision. |
Authorities
- relied: People v. DeHoyos (2015) 238 Cal.App.4th 363 — Proposition 47 does not apply retroactively to defendants sentenced before its effective date whose judgments were not yet final; such defendants must seek relief through the recall and resentencing petition procedure of Penal Code section 1170.18.
- relied: People v. Lynall (2015) 233 Cal.App.4th 1102 — Describes the Proposition 47 resentencing scheme: a person currently serving a felony sentence for an offense now a misdemeanor may petition for recall and shall be resentenced to a misdemeanor unless the court finds an unreasonable risk of danger to public safety.
- missed: In re Estrada (1965) 63 Cal.2d 740 — Absent a contrary indication of legislative intent, a statute reducing punishment for an offense applies to all judgments not yet final on the statute's effective date; this was the premise of appellant's retroactivity argument and the opinion does not address it directly.
- missed: People v. Brown (2012) 54 Cal.4th 314 — The Estrada rule is a limited exception to the presumption of prospective application under Penal Code section 3 and does not apply where the enacting body signals a contrary intent; relevant to whether section 1170.18 rebuts Estrada.
The appellate opinion: sound with gaps — The court reached the result later confirmed by the California Supreme Court, and its reliance on section 1170.18's petition procedure as the exclusive remedy is a defensible reading of Proposition 47. But the opinion is conclusory: it does not discuss Estrada or Brown, does not independently explain why the ballot measure rebuts the Estrada presumption, and simply adopts DeHoyos while acknowledging the analogous question was pending before the Supreme Court in Conley.
Opinion
Filed 7/27/15 P. v. Aguirre 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, D065887
Plaintiff and Respondent, v. (Super. Ct. No. SCS269591)
ALEJANDRO AGUIRRE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Garry G.
Haehnle, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent. Alejandro Aguirre contends he is entitled under Proposition 47 to automatic reduction of his commercial burglary conviction from a felony to a misdemeanor. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
During regular business hours on January 8, 2014, defendant entered a Walmart store in Chula Vista with the intent to steal a security camera system valued at approximately $200. Defendant apologized for the incident, explaining he needed the merchandize to sell to others in order to survive.
On March 20, 2014, a jury convicted defendant of commercial burglary. (Pen.
Code, § 459.)1 On April 24, defendant was sentenced to the middle term of two years in local confinement, with one month suspended and ordered to be served under mandatory supervision pursuant to section 1170, subdivision (h)(5)(B). The court imposed various fines and penalties, including victim restitution in the amount of $214.92.
DISCUSSION
On November 4, 2014, while this appeal was pending, California voters approved the Safe Neighborhoods and Schools Act (Proposition 47). (Ballot Pamp., Gen. Elec.
(Nov. 4, 2014) text of Prop. 47, § 1, p. 70.)2 It became effective the next day. (Cal.
1 All subsequent unspecified statutory references are to the Penal Code.
2 We grant the People's unopposed request to take judicial notice of the Official Voter Information Guide for the California General Election of November 4, 2014. 2 Const., art. II, § 10, subd. (a).) Proposition 47 reclassified certain nonserious, nonviolent theft- and drug-related crimes from felonies to misdemeanors unless the defendant had convictions for specified violent or serious crimes. It also established a procedure for qualifying defendants to petition for recall and modification of their prior convictions and sentences.
Among its reclassifying provisions, Proposition 47 added a new crime, shoplifting.
The crime 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 take does not exceed nine hundred fifty dollars ($950) . . . ." (§ 459.5, subd. (a).)
The newly enacted statute also provides the act of shoplifting shall be charged as shoplifting unless the defendant has a disqualifying prior conviction (i.e., a conviction for an offense listed in § 667, subd. (e)(2)(C)) or a sex offense requiring registration pursuant to section 290, subdivision (c), and a defendant may not be charged with burglary or theft of the same property. (§ 459.5, subds. (a), (b).)
Proposition 47 also created a new resentencing provision—section 1170.18. It provides that "a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition to recall that sentence and request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an 3 unreasonable risk of danger to public safety.' (Id., subd. (b)." (People v. Lynall (2015)
233 Cal.App.4th 1102, 1109.)
Appellant correctly notes that his conviction for commercial burglary is now classified as a misdemeanor, since the value of the property he took did not exceed $950.
He also contends that, because his case was not final when Proposition 47 became effective, it applies retroactively to him and thus he is automatically entitled to resentencing under section 459.5 and is not required to utilize the resentencing procedure established in section 1170.18.3 The People do not dispute appellant is currently serving a felony sentence for an offense that is now a misdemeanor and that he may be eligible for resentencing. But the People contend defendant's remedy is limited to the procedure established in section 1170.18. We agree with the People.
Recently, our court considered this exact issue in People v. DeHoyos (2015) __ Cal.App.4th __ [2015 Cal.App. LEXIS 582]. There, we examined Proposition 47, relevant statutes and the ballot arguments and concluded Proposition 47 does not apply retroactively. We also determined that to be considered for resentencing, a defendant such as Aguirre must utilize the recall procedure specified in section 1170.18.
3 The California Supreme Court is currently reviewing the analogous issue: Does the Three Strikes Reform Act of 2012 (§§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), which reduces punishment for certain nonviolent third-strike offenders, apply retroactively to a defendant who was sentenced before the Act's effective date but whose judgment was not final until after that date? (People v. Conley, review granted Aug. 14, 2013, S211275.) 4 We agree with our court's rationale in DeHoyos, and find it controls here.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
Cites, in this corpus
- People v. Lynall H041737 · 2015-01-29