People v. Wen Chen

Filed 3/1/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B264693

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BA392728) v.

WEN CHEN,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Bork, Judge. Reversed.

Jackie Lacey, District Attorney of Los Angeles County, Steven Katz, and Matthew Brown, Deputy District Attorneys, for Plaintiff and Appellant.

Ronald L. Brown, Public Defender of Los Angeles County, Danielle O‟Sullivan and Albert Menaster, Deputy Public Defenders for Defendant and Respondent.

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The People appeal a trial court order issued under the Safe Neighborhoods and Schools Act, Proposition 47. The order reduced defendant Wen Chen‟s felony second

degree burglary conviction (Pen. Code, § 459)1 to a misdemeanor second degree burglary, and modified terms of probation in accord with the new misdemeanor conviction. We reverse. FACTS In January 2012, the People filed a criminal complaint charging Chen with two criminal charges, perjury in the application for a driver‟s license (count 1; § 118, subd. (a);) and second degree commercial burglary (count 2; § 459). Count 1 alleged that Chen failed to disclose that he had applied for, received, and used an Illinois driver‟s license under the name Yu Liu. As to count 2, the complaint alleged that Chen entered the Department of Motor Vehicles, “a commercial building,” with the intent “to commit larceny and any felony.” In accord with the terms of a negotiated plea agreement, Chen pled nolo contendere to count 2 and the trial court dismissed the perjury charge. The trial court suspended imposition of sentence and ordered Chen placed on formal probation for three years on the condition that he serve 224 days in the county jail and otherwise obey all laws, orders and regulations prescribed by the court and the probation department. At the general election on November 4, 2014, the voters of California approved Proposition 47, which became effective the following day. Among its myriad provisions, Proposition 47 reduced a limited number of specified nonviolent crimes, for example, simple drug possession, from felonies to misdemeanors. Further, it created certain new misdemeanor crimes that largely overlay certain prior felony crimes. For example, the new crime of shoplifting (see § 459.5) now displaces the prior felony of second degree burglary where a defendant entered a commercial establishment with the intent to commit a theft involving property valued at less than $950. In addition, Proposition 47 enacted section 1170.18 which, as relevant to Chen‟s current matter, established procedures for persons who are “currently serving a sentence” for prior felony crimes that are now