P. v. Brown

Filed 3/15/16 P. v. Brown CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER LEE BROWN,
Defendant and Appellant.
B261595
(c/w B264335)
(Los Angeles County
Super. Ct. No. GA091665)
APPEALS from orders of the Superior Court of Los Angeles County. Jared D.
Moses, Judge. Affirmed.
Caneel C. Fraser and Melissa L. Camacho-Cheung, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Wyatt E.
Bloomfield, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Pursuant to Proposition 47 (Pen. Code, § 1170.18),1 appellant Christopher Lee
Brown petitioned the trial court to have his felony burglary convictions reduced to
misdemeanor shoplifting and to have a one-year sentence enhancement for a felony
“prior” stricken because the prior conviction was reduced to a misdemeanor after his
burglary convictions and sentencing in the instant case. The trial court denied the
petitions, and appellant appeals. We find appellant did not meet his burden of showing
that his burglaries constitute shoplifting. As to the second issue, we hold that pursuant to
our decision in People v. Williams (2016) __Cal.App.4th __ [2016 Cal.App. Lexis 170]
(Williams), the trial court correctly refused to strike the enhancement.
BACKGROUND
Procedural History
A jury convicted appellant of two counts of second degree commercial burglary
(§ 459) (counts 1 & 2) and one count of receiving stolen property (§ 496, subd. (a))
(count 3). In a bifurcated proceeding, the trial court found appellant had suffered two
prior prison terms (§ 667.5, subd. (b)).
On March 12, 2014, the trial court sentenced appellant to a term of four years
eight months in county jail, pursuant to section 1170, subdivisions (h)(1)-(2), determined
as follows: The midterm of two years for the burglary in count 2, plus a consecutive
eight months (one-third the midterm for count 1), plus two years for the two prior prison
enhancements. The sentence on count 3 was stayed pursuant to section 654.
On May 14, 2014, the trial court found that appellant was no longer eligible to
serve his sentence in jail pursuant to section 1170, based on his new conviction in another
case. The court modified the sentence to reflect a state prison sentence.
On November 4, 2014, the voters approved Proposition 47, the “Safe
Neighborhoods and Schools Act,” which provides that certain drug and theft-related
felonies may be reduced to misdemeanors, even after the felony sentence has been fully
served.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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On November 19, 2014, appellant filed a “Petition for Recall of Sentence,”
requesting the trial court to reduce all three of his felony convictions to misdemeanors.
On November 26, 2014, the court denied the petition without appellant or his counsel
present.
On January 7, 2015, appellant filed a “Motion to Reconsider Proposition 47
Ruling.” He asserted that the value of the property related to each of the three counts was
under $950, and that counts 1 and 2 (for robbery) should be redesignated as shoplifting
(§ 459.5). On January 9, 2015, the trial court reduced count 3 (receiving stolen property)
to a misdemeanor, but denied the motion as to counts 1 and 2. The court resentenced
appellant to 365 days in county jail on count 3, and stayed the sentence pursuant to
section 654. On January 14, 2015, appellant filed a notice of appeal from this ruling.
On April 8, 2015, one of appellant’s “priors” in case No. GA087375 (receiving
stolen property with a conviction date of Feb. 27, 2013) was reduced to a misdemeanor
by the judge in that case. On April 21, 2015, appellant filed a “Sentencing
Memorandum” in the instant case, arguing that because one of his priors was now a
misdemeanor, the corresponding one-year enhancement under section 667.5,
subdivision (b) was no longer valid and his sentence in the instant case should be reduced
by one year. On April 29, 2015, the trial court denied appellant’s request for
resentencing. On May 15, 2015, appellant filed a second notice of appeal from this
ruling. The two appeals have been consolidated.
Meanwhile, appellant’s appeal from the underlying judgment of conviction in the
instant case was pending in this court. On June 2, 2015, we affirmed this judgment in an
unpublished opinion (People v. Brown, B254939).
Factual History2
Appellant was a transient who frequently trespassed on an office campus located
in the City of Alhambra (the campus). The campus had numerous buildings that housed
multiple companies and government agencies. Rolando Valdovinos (Valdovinos), a
2 These facts are taken from our prior opinion in People v. Brown (June 2, 2015,
B254939) [nonpub. opn.].

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security guard at the campus, had told appellant he was not allowed on the campus and
not to come back.
AHMC Healthcare (AHMC) had an office on the sixth floor of one of the campus
buildings. AHMC provided billing and reporting services for six regional hospitals. The
company maintained the personal data of approximately 700,000 patients of the hospitals.
The doors to AHMC’s office were kept locked and could only be opened by swiping an
electronic badge. AHMC’s office was closed to the public, and Saturdays were not
normal working days for employees.
Count 1 (Second Degree Burglary)
On December 3, 2013, around 11:30 a.m., security officer Valdovinos received a
call that a suspicious person was on AHMC’s floor. (People v. Brown, supra, B254939.)
Valdovinos went to the building and eventually saw appellant on the ground floor
pushing a wheeled office desk chair out of the building. The chair held a light fixture and
books. The chair was taken from an area on the first floor where salvaged equipment was
stored. The chair was the property of the County of Los Angeles, which had offices in
the building. Valdovinos confirmed with the facilities manager for the Los Angeles
County Public Health Substance Abuse Program, located in the building, that appellant
did not have permission to take the property.
Count 2 (Second Degree Burglary)
On Saturday, October 12, 2013, AHMC’s security cameras recorded appellant
entering the office and walking around the floor, through cubicles, and trying to open
locked interior office doors. (People v. Brown, supra, B254939.) Appellant was later
recorded carrying what appeared to be a bag out of the office. When AHMC employees
went to work on Monday, October 14, 2013, they discovered that two laptop computers
and two flash drives were missing. Both the laptops and the flash drives contained
personal information of the approximately 700,000 patients. (People v. Brown, supra,
B254939.) A camera was also missing. It was discovered that someone had shoved
tissue paper into one of the locks of an entry door, which kept the door from
automatically locking. This was the same door used by appellant to enter the office. As

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a result of the security breach, AHMC mailed letters to all of the approximately 700,000
patients impacted by the breach. For a number of the patients, the company had to
provide identity theft monitoring services.
Count 3 (Receiving Stolen Property)
On October 23, 2013, police officers located appellant and recovered from him the
two missing AHMC flash drives. (People v. Brown, supra, B254939.) Testimony at
appellant’s trial established that individual profiles relating to stolen personal
identification information sell on the black market for between $20 and $40 each.
DISCUSSION
I. Reduction of Burglary Offenses to Misdemeanors
Proposition 47 provides in part: “A person currently serving a sentence for a
conviction, whether by trial or plea, of a felony or felonies who would have been guilty
of a misdemeanor under the act that added this section (‘this act’) had this act been in
effect at the time of the offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request resentencing in
accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section[s] 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have
been amended or added by this act.” (§ 1170.18, subd. (a).)
Proposition 47 added section 459.5, which defines shoplifting: “Notwithstanding
Section 459, shoplifting is defined 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). Any other entry into a commercial establishment with intent to
commit larceny is burglary. Shoplifting shall be punished as a misdemeanor. . . .”
(§ 459.5, subd. (a).)
Appellant contends the trial court erred in failing to reduce his two felony
convictions for commercial burglary (§ 459) to misdemeanor shoplifting (§ 459.5). In
making this contention, appellant essentially complains about the manner in which the
trial court reached its decision. According to appellant, the trial court erred by relying

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exclusively on its own recollection of the jury trial over which it presided, rather than
focusing on the “record of conviction.” Appellant narrowly defines the record of
conviction as “two convictions of second degree commercial burglary.” Appellant
asserts that this record of conviction renders his convictions presumptively eligible for
Proposition 47 reduction.
The court in People v. Rivas-Colon (2015) 241 Cal.App.4th 444 rejected the
presumptive eligibility argument, and so do we. In People v. Sherow (2015) 239
Cal.App.4th 875, 878, the court held that “a petitioner for resentencing under Proposition
47 must establish his or her eligibility for such resentencing.” The Sherow court noted
that under Evidence Code section 500, “a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief or defense that he is
asserting.” (See also People v. Perkins (2016) 244 Cal.App.4th 129, 136–137.)
Appellant’s original petition for recall contains no discussion whatsoever about the
burglaries or why they qualify as shoplifting. Accordingly, appellant did not meet his
burden of showing entitlement to reduction on this petition.
In his motion for reconsideration, appellant does discuss his offenses. As to
count 1, he alleges the building was open because his entry was near noon; the property
taken was in need of repair; a damaged chair, light and books would not exceed the value
of $950; and the amount of the loss was not proven at the preliminary hearing or trial. As
to count 2, appellant alleges that his entry occurred during business hours; the property
taken included flash drives and laptops; laptops from 2013 or earlier would not value
more than $950; and again the amount of loss was not proven at the preliminary hearing
or trial.
At the hearing on the motion for reconsideration, the trial court focused largely on
whether the building appellant entered qualified as a “commercial establishment” under
section 459.5, which the statute does not define. The trial court concluded that it did not,
stating “[t]he very nature of the term ‘shoplifting,’ in my opinion, implies a commercial
establishment that is open to the public, a store, a business of some sort open to the
public.”

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But we need not address the issues of whether the private office or the area in the
commercial building appellant entered qualify as “commercial establishments”3 or
whether it was proper for the trial court to rely exclusively on its own memory in ruling
on the motion. This is so because appellant did not meet his burden of showing that his
crimes constituted shoplifting. As to count 1, appellant simply alleged that the stolen
property did not exceed $950, but he did not put forth any evidence on valuation. As to
count 2, the trial transcripts, on which both parties rely on appeal, demonstrate that
appellant entered AHMC’s office on a Saturday morning, which was not during its
regular business hours. Its office was closed to the public and no nonemployees had
permission to be there at that time. As the trial court noted, the security videotape
showed the office was empty, and the door appellant entered had been propped open with
a wad of tissue. Thus, appellant did not meet the shoplifting element of being open
“during regular business hours.” Additionally, no evidence of the value of the two stolen
laptops or other stolen property was presented.
Thus, even assuming the trial court erred in relying on its own recollection, any
error was harmless because appellant did not show that he committed shoplifting within
the meaning of section 459.5.
II. Striking One-Year Prior Prison Enhancement
As noted above, after appellant was convicted and sentenced in this case, one of
his priors was reduced from a felony to a misdemeanor. Appellant contends that the one-
year prior prison term enhancement he received under section 667.5, subdivision (b) must
therefore be stricken.
Section 667.5 requires “[e]nhancement of prison terms for new offenses because
of prior prison terms.” Under subdivision (b), “where the new offense is any felony for
which a prison sentence or a sentence of imprisonment in a county jail under subdivision
3 We note that Division Five of this district recently determined that a school, at
which students stole a cell phone from a locker, did not constitute a “commercial
establishment” under section 459.5. (In re J.L. (2015) 242 Cal.App.4th 1108, 1115.) The
court stated: “Shoplifting is commonly understood as theft of merchandise from a store
or business that sells goods to the public.” (Ibid.)

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(h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any
other sentence therefor, the court shall impose a one-year term for each prior separate
prison term or county jail term.” (§ 667.5, subd. (b).) “Imposition of a sentence
enhancement under Penal Code section 667.5[(b)] requires proof that the defendant:
(1) was previously convicted of a felony; (2) was imprisoned as a result of that
conviction; (3) completed that term of imprisonment; and (4) did not remain free for five
years of both prison custody and the commission of a new offense resulting in a felony
conviction.” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
Just as Proposition 47 allows a person who is currently serving a sentence for a
specified felony to petition for a redesignation of that felony to a misdemeanor
(§ 1170.18, subd. (a)), it also allows a person who has completed his felony sentence to
petition for a redesignation of that felony to a misdemeanor (§ 1170.18, subd. (f)).
Appellant argues that the language in section 1170.18, subdivision (k) is plain and
unambiguous that a felony reduced to a misdemeanor is a misdemeanor “for all
purposes.”4 He points out that the statute lists only one exception for firearm ownership
and possession.
While appellant’s appeal was pending, we had occasion to address the exact same
issue of whether a prior prison term used as a sentence enhancement should be stricken
when the prior is reduced to a misdemeanor under Proposition 47 after sentencing in the
current case. In Williams, supra, we held “as a matter of statutory construction that the
redesignation of a felony or wobbler under Proposition 47 operates from the moment of
redesignation forward and does not retroactively alter the designation of that crime as a
felony or wobbler.” (Williams, supra, 2016 Cal.App. Lexis at p. *23.) We reached our
holding in Williams after a lengthy analysis of the texts and purposes of both Proposition
4 Section 1170.18, subdivision (k) provides in full: “Any felony conviction that is
recalled and resentenced under subdivision (b) or designated as a misdemeanor under
subdivision (g) shall be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in his or her custody or
control any firearm or prevent his or her conviction under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.”

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47 and section 667.5. Given that the appellant in Williams raised the same issues and
relied on the same authority as does appellant herein, we need not repeat our analysis
here. Additionally, the Fourth District in People v. Valenzuela (2016) 244 Cal.App.4th
692, 709 likewise concluded that Proposition 47 “contains no procedure for striking a
prison prior if the felony underlying the enhancement has subsequently been reduced to a
misdemeanor.” (See also People v. Carrea (2016) 244 Cal.App.4th 966, 971; People v.
Ruff (2016) 244 Cal.App.4th 935, 948.)
We do note that appellant, like the appellant in Williams, relies on In re Estrada
(1965) 63 Cal.2d 740, 744, which held that “If the amendatory statute lessening
punishment becomes effective prior to the date the judgment of conviction becomes final
then, in our opinion, it, and not the old statute in effect when the prohibited act was
committed, applies.” Appellant argues that pursuant to Estrada he was “entitled to any
benefit from changes to the law after Proposition 47 because his case was still open.” We
rejected this argument in Williams, because Estrada’s presumption applied to the finality
of the prior conviction being used to support an enhancement under section 667.5,
subdivision (b), and not the current conviction. Here, appellant’s prior conviction was in
2013, and thus became final long ago.

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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, Acting P. J.
ASHMANN-GERST
We concur:
_____________________________, J.
CHAVEZ
____________________________, J.
HOFFSTADT

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