People v. Wilcox CA2/7

Filed 3/14/16 P. v. Wilcox CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B262163

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA104411) v.

GABRIEL WILCOX,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack P. Hunt, Judge. Reversed and remanded with directions. Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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On May 9, 2014, appellant Gabriel Wilcox pled no contest to one count of second degree burglary in violation of Penal Code section 459.1 On January 5, 2015, Wilcox filed a petition for resentencing pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18). The trial court denied the petition on the ground that the statute was prospective only for a violation of section 459. We reverse the trial court’s order denying the petition and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY On May 9, 2014, Wilcox pled no contest to one count of second degree burglary (§ 459), a felony offense. As part of his plea, Wilcox also admitted one prior prison term enhancement (§ 667.5, subd. (b)). Through his counsel, Wilcox stipulated to a factual basis for the plea based on the preliminary hearing transcript, police report, and probation report. Wilcox was sentenced to 28 months in county jail. The burglary charge arose out of an incident in which Wilcox was caught shoplifting items from a CVS Pharmacy. At the preliminary hearing, a loss prevention employee for CVS testified that, on January 21, 2014, he observed Wilcox enter a CVS store located in Covina, California and steal various items of merchandise by concealing them under his clothes. A short time later, Wilcox was detained by the police. Wilcox admitted to the police that he had committed a theft that day and had “visited two CVS stores, one of which was the store in Covina.” The loss prevention employee identified the merchandise recovered from Wilcox’s vehicle as belonging to CVS, but could not tell whether all the items came from the same CVS store. There was no testimony regarding the value of the recovered merchandise at the preliminary hearing. A pre-conviction probation report prepared prior to Wilcox’s plea stated that he had stolen $1,376.83 from CVS. The report also stated that, during a police interview, Wilcox was asked if he had stolen all of the merchandise from two CVS stores. In response, Wilcox stated, “The two stores today and others not today.”