California Court of Appeals, Fourth District, Second Division
from the Superior Court of Riverside County, No. RIF1411960,
Helios (Joe) Hernandez, Judge.
[Copyrighted Material Omitted]
Dellaca, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, and Barry Carlton, Sabrina Y. Lane-Erwin,
Heidi Salerno and Allison V. Hawley, Deputy Attorneys
General, for Plaintiff and Respondent.
by Codrington, J., with Ramirez, P. J., and McKinster, J.,
Cal.Rptr.3d 584] CODRINGTON, J.
serving a 32-month sentence for commercial burglary (Pen.
Code, § 459), defendant and appellant, Lamonte Alvin
Jefferson, petitioned the trial court to recall his sentence
and resentence him as if he had been convicted of misdemeanor
shoplifting (§ § 459.5, 1170.18, subd. (a)).
Defendant stole an ink cartridge worth $24.99 from a
Riverside Kmart store.
parties agreed that defendant's commercial burglary
conviction qualified as a misdemeanor shoplifting conviction.
(§ 459.5 [defining shoplifting as including entering a
commercial establishment during regular business hours with
intent to commit or committing larceny where value of
property taken or intended to be taken does not exceed
$950].) The parties also agreed that, had defendant's
petition been granted at the January 12, 2015, hearing on the
petition, defendant would have been eligible for immediate
release from prison. However, the court denied the petition
on the ground defendant posed an unreasonable risk of danger
to public safety. (§ 1170.18, subds. (b), (c).)
Cal.Rptr.3d 585] Defendant claims the court erroneously
applied the preponderance of the evidence standard to its
unreasonable risk of dangerousness determination. He argues
the prosecution was required to prove his dangerousness to a
jury beyond a reasonable doubt or, at the very least, based
on clear and convincing evidence. He also claims the court
abused its discretion in finding he posed an unreasonable
risk of danger to public safety under any standard of proof.
We find no error or abuse of discretion and affirm.
September 16, 2014, defendant pled guilty to commercial
burglary (§ 459), a felony, and admitted a strike prior.
In entering his plea, defendant admitted in court that he
entered a Kmart store in the City of Riverside " with
the idea of taking some of their property." The guilty
plea form that
defendant signed does not indicate the circumstances of the
crime, but the People represent that the commercial burglary
was committed on September 3, 2014, when defendant, while on
active parole, left a Kmart store without paying for an ink
cartridge worth $24.99. On September 16, 2014, defendant
was sentenced to 16 months in prison on the burglary
conviction, doubled to 32 months based on the strike prior.
November 14, 2014, defendant petitioned the court to recall
his 32-month sentence and resentence him to not more than six
months in county jail, or time served. (§ § 19,
459.5, 1170.18, subd. (a).) The People opposed the petition
and requested a hearing to determine whether defendant posed
an unreasonable risk of danger to public safety. At a June
12, 2015, hearing, the court found that defendant posed an
unreasonable risk of danger to public safety and denied the
Proposition 47, Overview of Relevant
November 4, 2014, election, the voters enacted Proposition
47, " The Safe Neighborhoods and Schools Act"
(Proposition 47 or the Act), and the Act went into effect on
November 5, 2014. ( People v. Rivera (2015) 233
Cal.App.4th 1085, 1089 [183 Cal.Rptr.3d 362].) As pertinent,
the Act added sections 459.5 and 1170.18 to the Penal Code. (
People v. Rivera, supra, at p. 1091.) Section 459.5
defines " shoplifting" as " entering a
commercial establishment with intent to commit larceny while
that establishment is open during regular business hours,
where the value of the property that is taken or intended to
be taken does not exceed nine hundred fifty dollars
($950)." (§ 459.5, subd. (a).) Shoplifting must be
punished as a misdemeanor unless the defendant has one ...