People v. Pizano CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JCF31373
- Trial judges
- Donal B. Donnelly; Poli Flores
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- delinquency
- Panel
- O'Rourke (author), Richard D. Huffman, Sr., Judith D. McConnell
Analysis
The trial court denied Pizano's petition for recall of sentence and resentencing under Penal Code section 1170.18, erroneously concluding that Proposition 47 did not specifically delineate felony burglary as a charge eligible for reduction. The Court of Appeal reversed and remanded, holding that Pizano is entitled to resentencing as a misdemeanor under section 459.5 unless the trial court determines that resentencing would pose an unreasonable risk of danger to public safety.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence and resentencing under Penal Code section 1170.18“The court denied Pizano's request for relief under section 1170.18 on the ground that "Prop[osition] 47 did not specifically delineate [violations of section 459] as . . . charges that can be reduced."” | de novo | error | agree with court The trial court misinterpreted the plain language of section 1170.18, subdivision (a), which grants relief to any person whose felony conviction would have been a misdemeanor under the new law (specifically section 459.5 for shoplifting). The appellate court correctly identified that the trial court's requirement for 'specific delineation' in the proposition text was not supported by the statute's text, which relies on the substantive change in classification from felony to misdemeanor. |
Authorities
- relied: People v. DeHoyos (2015) 238 Cal.App.4th 363 — Proposition 47 became effective on November 5, 2014.
- relied: People v. Contreras (2015) 237 Cal.App.4th 868 — Proposition 47 added new section 459.5 to the Penal Code, defining the crime of 'shoplifting'.
The appellate opinion: sound — The opinion is sound because it correctly applies the plain language of Penal Code section 1170.18 to the facts, recognizing that the statutory eligibility is based on the reclassification of the offense rather than a specific list in the ballot measure. It properly identifies the remaining discretionary inquiry regarding public safety that the trial court failed to conduct.
How this analysis was made · dispute it
unusual dispositionThe Imperial County Superior Court denied Diana Pizano's Penal Code section 1170.18 (Proposition 47) petition to reduce her felony second degree burglary conviction, reasoning that Proposition 47 did not specifically list section 459 among the offenses eligible for reduction. The Court of Appeal, accepting the Attorney General's concession, reversed and remanded with directions to hold a hearing on whether resentencing Pizano would pose an unreasonable risk of danger to public safety under section 1170.18, subdivision (b).
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Proposition 47 petition for recall of sentence and resentencing on the ground that a Penal Code section 459 burglary conviction is not an offense that Proposition 47 permits to be reduced to a misdemeanor.“The court denied Pizano's request for relief under section 1170.18 on the ground that "Prop[osition] 47 did not specifically delineate [violations of section 459] as . . . charges that can be reduced."” | de novo | error (statutory interpretation) | agree with court Section 1170.18, subdivision (a) by its plain terms covers any felony conviction that 'would have been guilty of a misdemeanor under the act' had it been in effect at the time of the offense; it is not limited to offenses expressly listed. Proposition 47 added section 459.5, which carves shoplifting (entering an open commercial establishment with intent to commit larceny, property not exceeding $950) out of section 459 and makes it a misdemeanor. Pizano's undisputed conduct—entering a WalMart during business hours intending to steal and taking $66.46 of property—fits section 459.5, so the trial court's categorical reading of eligibility was a legal error. The appellate court did not expressly state a standard of review, but the question was one of statutory interpretation, which is reviewed independently, and the People conceded. The court properly left the discretionary dangerousness finding under subdivision (b) to the trial court on remand rather than deciding it in the first instance. |
Authorities
- relied: People v. DeHoyos (2015) 238 Cal.App.4th 363 — Proposition 47, the Safe Neighborhoods and Schools Act, was approved by voters on November 4, 2014 and became effective the next day.
- relied: People v. Contreras (2015) 237 Cal.App.4th 868 — Proposition 47 added section 459.5 to the Penal Code, which defines the new misdemeanor crime of shoplifting.
The appellate opinion: sound — The opinion correctly reads section 1170.18, subdivision (a) as extending to any felony that would now be a misdemeanor under the act, and correctly applies section 459.5's shoplifting definition to the undisputed facts of an in-hours commercial entry to steal $66.46, a point the Attorney General conceded. It appropriately remands for the trial court to exercise its discretion on the unreasonable-risk-of-danger finding under subdivision (b), though it does not pause on whether a probationer is 'currently serving a sentence,' an issue not raised by the parties and later litigated in other cases.
Opinion
Filed 9/30/15 P. v. Pizano 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, D067265
Plaintiff and Respondent, v. (Super. Ct. No. JCF31373)
DIANA MARIE PIZANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, Donal B.
Donnelly and Poli Flores, Judges. Reversed and remanded with directions.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent. In August 2013, Diana Marie Pizano entered a negotiated guilty plea to felony second degree burglary (Pen. Code,1 § 459). In September, the court placed Pizano on three years' probation, as stipulated in the plea agreement. In October 2014, the court revoked and reinstated probation. In November, Pizano filed a petition for recall of sentence and resentencing pursuant to section 1170.18 (Proposition 47). In December, she filed an amended petition.2 The People filed opposition. The court denied Pizano's request for relief under section 1170.18 on the ground that "Prop[osition] 47 did not specifically delineate [violations of section 459] as . . . charges that can be reduced."
Pizano appeals, contending a person convicted of a felony violation of section 459, which would now be a misdemeanor under section 459.5, is entitled to have the felony conviction reduced to a misdemeanor pursuant to section 1170.18, subdivision (a). The People properly concede the point.
FACTUAL BACKGROUND
In July 2013, Pizano entered a WalMart store during business hours with the intent to steal. In the store, Pizano stole property valued at $66.46.
DISCUSSION
"On November 4, 2014, . . . [California voters approved] The Safe Neighborhoods and Schools Act (Proposition 47). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014)
text of Prop. 47, § 1, p. 70.) It became effective the next day. (Cal. Const., art. II, § 10, 1 Further statutory references are to the Penal Code.
2 We refer to the petition and the amended petition together as "the petition." 2 subd. (a).)" (People v. DeHoyos (2015) 238 Cal.App.4th 363.) Proposition 47 provides:
"A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . ." (§ 1170.18, subd. (a).) "Proposition 47 added new section 459.5 to the Penal Code. Section 459.5 defines the crime of 'shoplifting.' "
(People v. Contreras (2015) 237 Cal.App.4th 868, 890.) Section 459.5 states:
"Notwithstanding Section 459, 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)." (§ 459.5, subd. (a).) With exceptions inapplicable here, "[s]hoplifting shall be punished as a misdemeanor."
(§ 459.5, subd. (a).)
By the plain terms of section 1170.18, subdivision (a), Pizano is entitled to recall of sentence and resentencing under section 459.5 "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following: [¶]
(1) [t]he petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes[;] [¶] (2) [t]he petitioner's disciplinary record and record of rehabilitation while incarcerated[; and] [¶] (3) [a]ny other evidence the court, within its 3 discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) This discretionary determination includes factual matters within the province of the trial court.
We reverse the order denying Pizano's petition for recall of sentence and for resentencing and remand to the trial court for a determination whether "resentencing [Pizano] would pose an unreasonable risk of danger to public safety" within the meaning of section 1170.18, subdivision (b).
DISPOSITION
The order denying Pizano's petition for recall of sentence and request for resentencing is reversed. The case is remanded to the trial court with directions to hold a new hearing at which it shall determine whether "resentencing [Pizano] would pose an unreasonable risk of danger to public safety" within the meaning of section 1170.18, subdivision (b).
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
Cites, in this corpus
- People v. Contreras H040903 · 2015-06-16