People v. Jefferson

          APPEAL from the Superior Court of Riverside County, No. RIF1411960, Helios (Joe) Hernandez, Judge.

          Affirmed.

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[Copyrighted Material Omitted]

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          COUNSEL

         Tanya Dellaca, 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, and Barry Carlton, Sabrina Y. Lane-Erwin, Heidi Salerno and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Codrington, J., with Ramirez, P. J., and McKinster, J., concurring.

         OPINION

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         [204 Cal.Rptr.3d 584] CODRINGTON, J.

         I. INTRODUCTION

         While serving a 32-month sentence for commercial burglary (Pen. Code, § 459),^[1] 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.

         The 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).)

          [204 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.

         II. BACKGROUND

         On 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

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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.^[2] 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.

         On 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 petition.

         III. DISCUSSION

         A. Proposition 47, Overview of Relevant Provisions

         In the 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 ...