California Court of Appeal Jun 15, 2016 No. E063786Unpublished
Filed 6/15/16 P. v. Gallegos CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063786
v. (Super.Ct.No. SWF1101186)
JASON ANDREW GALLEGOS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
Jared G. Coleman, 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, Scott C. Taylor, and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant and appellant Jason Andrew Gallegos appeals from an order denying
his petition for resentencing under section 1170.18.1 In 2011, defendant pleaded guilty to
one count of commercial burglary, a felony, under section 459. The trial court denied
Accordingly, the record of conviction consists solely of the felony complaint, the change
of plea form, and the transcript of the change of plea hearing. (People v. Roberts (2011)
195 Cal.App.4th 1106, 1120-1123.) Counts 1 and 3 of the complaint do not allege that
the victim, BRAND X LIQUOR, was a commercial establishment or that that the
objective of the burglary was to pass a forged check. The dismissed forgery counts 2 and
4 describe the charged offenses as including the intent to pass a forged check but they do
not refer to BRAND X LIQUOR or any commercial establishment as the locus or the
victim of the crime. Accordingly, the record does not contain any information which
supports the People’s contention that defendant’s burglary does not qualify as shoplifting.
By the same token, however, the record of conviction also does not demonstrate
that defendant entered for the purpose of stealing merchandise as opposed to passing a
forged check. Nor does it establish that any property defendant stole or intended to steal
was valued at less than $950 or that the store was “open during regular business hours” at
the time the theft occurred. (§ 459.5, subd. (a).) Accordingly, the record of conviction
neither supports nor refutes a factual basis for resentencing under section 1170.18.
IV
DISPOSITION
Defendant pleaded guilty to commercial burglary. The record of conviction does
not demonstrate defendant was guilty of either shoplifting or check forgery. The trial
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court correctly found defendant was ineligible for resentencing on shoplifting under
Proposition 47. We affirm the trial court’s denial of the petition for resentencing without
prejudice to filing a new petition for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of a petition for resentencing under Penal Code section 1170.18 because the record of conviction was insufficient to establish that the defendant's commercial burglary conviction qualified as misdemeanor shoplifting under section 459.5.
Issues
Whether a conviction for commercial burglary qualifies for resentencing as misdemeanor shoplifting under Penal Code section 459.5.
Whether the defendant met the burden of proof to establish eligibility for resentencing based on the limited record of conviction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“we conclude the record of conviction is too limited to find that defendant has met his burden of proof to justify granting his petition.”
“the record of conviction neither supports nor refutes a factual basis for resentencing under section 1170.18.”