People v. Tucker CA6

Filed 9/27/16 P. v. Tucker CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042830 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. B1368435)

v.

JASMINE UNIQUE TUCKER,

Defendant and Appellant.

Defendant Jasmine Unique Tucker appeals from the trial court’s denial of her Proposition 47 petition for resentencing of her felony second degree burglary conviction (Pen. Code, §§ 459, 460, subd. (b))1 as a misdemeanor shoplifting (§§ 459.5; 1170.18, subd. (b).). She argues that the trial court erred in denying the petition because her crime of second degree burglary now qualifies as misdemeanor shoplifting entitling her to resentencing under Proposition 47. (§ 1170.18, subd. (a)). STATEMENT OF THE CASE On August 29, 2013, defendant entered a Hertz Rent-A-Car in Mountain View and attempted to use a counterfeit access card. As a result, she was charged with second degree burglary (§§ 459, 460, subd. (b)); uttering or attempting to use a counterfeit access card (§ 484f, subd. (a)); and possession of a false identification card (§ 529.5, subd. (c)).

1 All further statutory references are to the Penal Code.

On February 28, 2014, pursuant to a negotiated plea, defendant pleaded no contest to the second degree burglary, and the remaining charges were dismissed. The court suspended imposition of sentence and placed defendant on probation with the condition that she serve four months in the county jail. On June 19, 2015, defendant filed a petition for resentencing pursuant to Proposition 47 to have her felony second degree burglary reduced to misdemeanor shoplifting. On August 17, 2015, the trial court denied defendant’s petition stating finding that her crime of second degree burglary did not constitute shoplifting within the meaning of section 459.9. Defendant filed a timely appeal in this court. DISCUSSION Defendant argues on appeal that the trial court erred in denying her petition for resentencing of her felony second degree burglary conviction as misdemeanor shoplifting pursuant to Proposition 47. On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 “reduced the penalties for a number of offenses.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow)). Section 1170.18, which was also added by Proposition 47, “creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 879.) Section 1170.18, subdivision (a) specifies that a person may petition for resentencing in accordance with section 490.2. “[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.” (Sherow, supra, 239 Cal.App.4th at p. 878.) The petitioner for resentencing has the “initial burden of proof” to “establish the facts[] upon which his or her eligibility is based.” (Id. at p. 880.) If the crime under consideration is a theft offense, “ ‘the petitioner will have the burden of proving the value of the property 2