People v. Rubio CA4/1

California Court of Appeal · D067806 · 2015-10-07 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of Imperial County · No. JCF29273
Trial judge: Poli Flores, Jr.
Outcome: reversed — Reversed and remanded with directions.
Area: delinquency
Panel: Richard D. Huffman, Sr. (author), Judith L. Haller, McINTYRE

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:07Z · confidence high

The trial court denied Melissa Rubio's petition for resentencing under Proposition 47, concluding that second-degree burglary sentences were not subject to recall. The Court of Appeal reversed and remanded, agreeing with the parties that the trial court erred in its interpretation of the statute and directing it to reconsider the petition in light of the new shoplifting statute.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.18 (Proposition 47) “The trial court concluded second degree burglary sentences were not subject to recall under Proposition 47.”	unclear	error	agree with court The appellate court found the trial court's interpretation of Proposition 47 to be erroneous because it failed to account for the creation of a new category of second-degree burglary (shoplifting) under section 459.5, which is eligible for resentencing if the value of stolen items is less than $950.

Authorities

relied: People v. Sherow (2015) 239 Cal.App.4th 875 — Proposition 47 reduced penalties for certain second-degree burglaries involving commercial establishments, now characterized as shoplifting under section 459.5.
relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reduced penalties for certain second-degree burglaries involving commercial establishments, now characterized as shoplifting under section 459.5.
relied: People v. Contreras (2015) 237 Cal.App.4th 868 — Proposition 47 reduced penalties for certain second-degree burglaries involving commercial establishments, now characterized as shoplifting under section 459.5.

The appellate opinion: sound — The opinion is sound because it correctly identifies the trial court's legal error in excluding second-degree burglary from Proposition 47's scope and relies on contemporaneous published authority to support the remand. The reasoning is concise and directly addresses the statutory interpretation issue raised by the appellant.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The Imperial County Superior Court denied Melissa Rubio's Penal Code section 1170.18 petition to recall her second degree burglary sentence, concluding that second degree burglary was not an offense eligible for Proposition 47 relief. The Court of Appeal, accepting the People's concession, held that Proposition 47's new shoplifting statute (section 459.5) can reach commercial burglaries involving $950 or less, reversed the order, and remanded with directions to reconsider the petition in light of section 459.5.

Ruling reviewed	Standard	The court	The model
Denial of Proposition 47 petition (§ 1170.18) on the ground that second degree burglary is categorically ineligible for resentencing “The trial court concluded second degree burglary sentences were not subject to recall under Proposition 47.”	de novo	error (statutory interpretation)	agree with court The opinion does not expressly state a standard of review, but the question presented was purely one of statutory interpretation of section 1170.18 and section 459.5, which is reviewed independently. Section 1170.18(a) expressly lists section 459.5 among the offenses for which a person serving a sentence may petition, and section 459.5 redefines entry into a commercial establishment during business hours with intent to commit larceny of $950 or less as misdemeanor shoplifting. The trial court's categorical exclusion of second degree burglary was therefore legally wrong, as the People conceded, and the cited published authority (Sherow, Rivera, Contreras) supports the Court of Appeal's reading. The reviewing court properly remanded rather than ordering relief outright, since the trial court must still determine whether the record establishes the shoplifting elements; however, the opinion does not mention the business-hours element of section 459.5 or the petitioner's burden under Sherow, and it contains inconsistent dates for the filing of the petition (March 2015 vs. November 2014).

Authorities

relied: People v. Sherow (2015) 239 Cal.App.4th 875 — Proposition 47 reduced certain second degree burglaries of commercial establishments to misdemeanor shoplifting under section 459.5 when the value taken does not exceed $950; the petitioner bears the burden of establishing eligibility.
relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Describes Proposition 47's reclassification of specified theft and drug offenses as misdemeanors and the section 1170.18 resentencing mechanism.
relied: People v. Contreras (2015) 237 Cal.App.4th 868 — Discusses Proposition 47's creation of the shoplifting offense in section 459.5 and its effect on commercial burglary convictions.

The appellate opinion: sound with gaps — The court reached the correct result: section 1170.18 expressly covers section 459.5, so a commercial burglary involving a $69 theft cannot be categorically excluded, and remand for the trial court to apply the statute to the record was the appropriate disposition. The analysis is thin, however—it does not mention the business-hours element of section 459.5 or the petitioner's burden of proof recognized in Sherow, which it cites, and it states inconsistent dates for the petition's filing.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/7/15 P. v. Rubio 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, D067806

Plaintiff and Respondent, v. (Super. Ct. No. JCF29273)

MELISSA RUBIO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Reversed and remanded with directions.

Richard Jay Moller, 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, Eric A. Swenson and Stephanie H.

Chow, Deputy Attorneys General, for Plaintiff and Respondent. In August 2012, Melissa Rubio entered a guilty plea to second degree burglary.

(Pen. Code,1 § 459.) She was granted probation for three years.

Rubio suffered probation revocations in August 2013, February 2014, September 2014, and March 2015. Following the March 2015 revocation, Rubio was continued on probation subject to an additional 135 days in custody.

In March 2015, Rubio filed a petition to recall her sentence pursuant to Proposition 47 (§ 1170.18). The trial court concluded second degree burglary sentences were not subject to recall under Proposition 47.

Rubio appeals contending the trial court erred in its interpretation of Proposition 47. She notes the proposition created a new category of second degree burglary, i.e., shoplifting of a commercial establishment. (§ 459.5.) Since the offense in this case was committed in a Von's market and involved a loss of less than $70, Rubio contends the court should have granted the petition.

The People properly concede the trial court erred in its interpretation of section 1170.18. The People ask us to remand the case to the trial court with directions to hold a new hearing on the petition. We agree with the parties that the trial court erred in its interpretation of Proposition 47. We will reverse the order denying the petition and remand the case to the trial court to reconsider its ruling on the petition and specifically consider the effect of section 459.5 adopted by Proposition 47.

1 All further statutory references are to the Penal Code unless otherwise specified. 2 STATEMENT OF FACTS On August 4, 2012, Rubio entered a Vons market in El Centro. She took various items from the store without paying for them. She was detained after she left the store.

The value of the items taken was $69.14.

DISCUSSION

In November 2014, Rubio filed a petition pursuant to section 1170.18 for resentencing of her burglary conviction. The court denied the request finding that the burglary was not one of the enumerated crimes under Proposition 47.

The parties agree the case should be remanded for the court to reconsider Rubio's request.

"Proposition 47, which is codified in section 1170.18, reduced the penalties for a number of offenses. Among those crimes reduced are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5. Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950." (People v. Sherow (2015) 239 Cal.App.4th 875, 879; People v. Rivera (2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, 889-891.)

On remand, the trial court must review the petition as well as the factual basis of the conviction. If the record establishes that Rubio took items valued at less than $950, she would qualify for sentence reduction under section 459.5.

3 DISPOSITION

The order denying Rubio's petition for resentencing under section 1170.18 is reversed. The case is remanded to the Imperial County Superior Court with directions to reconsider the petition.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

Cites, in this corpus

People v. Sherow CA4/1 D067605 · 2015-08-11
People v. Contreras H040903 · 2015-06-16
People v. Rivera H041742 · 2015-01-29