People v. Petrill CA2/6

Filed 5/24/16 P. v. Petrill CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B264529 (Super. Ct. No. 14C-00279-A) Plaintiff and Respondent, (San Luis Obispo County)

v.

SARA ASHLEY PETRILL,

Defendant and Appellant.

Sara Ashley Petrill appeals a postjudgment order denying her petition to recall her felony sentence and reduce her convictions for second degree commercial burglary (Pen. Code, § 459)1 to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18, subd. (b)). The trial court denied the petition on the ground that appellant had not met her burden of proving eligibility for resentencing. (§ 1170.18, subd. (a).) We affirm. In 2014, appellant manufactured fraudulent credit cards and gift cards and used the cards to make purchases at retail stores. When appellant was arrested, she had a card embossing machine, blank access cards, counterfeit access cards, a stolen ID card, a credit card associated with the stolen ID, gift cards that were bought with stolen information, and a computer with hundreds of stolen credit card numbers. Appellant

1 All statutory references are to the Penal Code unless otherwise stated.

used a counterfeit credit card to rent a hotel room and a car, which contained merchandise purchased with fraudulent access and gift cards. Appellant pled no contest to five counts of second degree commercial burglary (counts 4, 7, 10, 13, and 16; § 459) and one count of possessing equipment to counterfeit access cards (count 3; § 484i, subd. (c)). Pursuant to the negotiated plea, appellant admitted two prior prison enhancements (§ 667.5, subd. (b)) and was sentenced to five years in county jail.2 On January 16, 2015, after the enactment of Proposition 47, appellant petitioned for resentencing based on the theory that each commercial burglary involved the theft of property not exceeding $950 in value, and argued that the convictions should be reduced to misdemeanor shoplifting. Appellant, however, offered no evidence concerning the facts of each burglary or the value of the property stolen. The superior court found that it had to go by the language of the amended complaint which alleged that the burglary counts were for "larceny and a felony." Denying the petition, the court found that the felonies charged "were not just theft, but they were fraud and identity theft" and "even though the plea didn't say that, she pled to those counts and that's what the counts say on the complaint, so I think that's what we have to go by." Proposition 47 Eligibility Proposition 47 reduces most possessory drug offenses and thefts of property valued at less than $950 to straight misdemeanors. (See Couzens et al., Sentencing California Crimes (The Rutter Group 2015) § 25:1, p. 25-2.) Section 1170.18, subdivision (a) enumerates the types of felonies that are misdemeanors (§§ 459.5, 473, 476a, 490.2, 496, & 666) and provides that shoplifting (§ 459.5, subd. (a)) is a misdemeanor if the value of the property taken does not exceed $950. "Under