Filed 7/19/22 P. v. Alexander CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317136
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. PA069032
v.
STEVEN EUGENE
ALEXANDER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Terrell, Judge. Reversed and
remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Chung L. Mar and Noah P. Hill, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Petitioner Steven Eugene Alexander appeals from the trial
court’s order denying his resentencing petition under Penal Code 1
section 1170.18. The parties agree, and so do we, that the court
erred when it found Alexander is ineligible for relief because he
suffered a prior disqualifying conviction. We therefore reverse the
order denying Alexander’s petition and remand the matter for
further proceedings under section 1170.18.
BACKGROUND2
In 2010, Alexander and an acquaintance entered a
convenience store and used a stolen credit card to purchase
items.
In 2012, a jury convicted Alexander of two counts of first
degree burglary with a person present (§§ 459, 667.5, subd.
(c)(21); counts 1 & 2), battery with injury on a peace officer (§
243, subd. (c)(2); count 3), three counts of resisting an executive
officer (§ 69; counts 4–6), and second degree burglary (§ 459;
count 7). Alexander admitted allegations that he suffered a prior
felony conviction (§ 667, subd. (d)) and served four prior prison
terms (§ 667.5, subd. (b)). The court sentenced Alexander to 25
years and 4 months in prison. This division affirmed Alexander’s
judgment in 2014.
In June 2021, Alexander, in pro per, submitted a
resentencing petition under section 1170.18, asking the court to
1 All undesignated statutory references are to the Penal Code.
2A more detailed factual and procedural background can be found in
our prior opinion, People v. Alexander (Feb. 5, 2014, B243170) [nonpub.
opn.] (Alexander), which we take judicial notice of on our own motion.
Here, we discuss only the facts giving rise to the second degree
burglary conviction (count 7) at issue in Alexander’s resentencing
petition.
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reduce his second degree burglary conviction (count 7) to a
misdemeanor.3 Using a form petition, Alexander alleged he hasn’t
suffered a disqualifying conviction identified in section 667,
subdivision (e)(2)(C)(iv) or that requires registration as a sex
offender under section 290, subdivision (c). Alexander also
alleged the value of the property at issue in count 7 was not more
than $950.
The People opposed Alexander’s request by checking two
boxes at the bottom of the form petition that assert Alexander is
ineligible for relief because he suffered prior disqualifying
convictions listed in section 667, subdivision (e)(2)(C)(iv). The
People identified Alexander’s prior convictions for first degree
burglary under section 459 and battery of a peace officer under
section 243, subdivision (c)(2) as the disqualifying convictions.
The court denied Alexander’s petition, checking a box on a
form order stating that Alexander “has a prior conviction for an
offense listed in Penal Code § 667(e)(2)(C)(iv), which disqualifies
him/her from relief under [section 1170.18].”
Alexander appealed.
DISCUSSION
In 2014, California voters enacted “The Safe Neighborhoods
and Schools Act” (Proposition 47), which makes certain theft- and
drug-related offenses punishable as misdemeanors rather than
felonies. (§ 1170.18; People v. Page (2017) 3 Cal.5th 1175, 1179.)
Proposition 47 also created a resentencing procedure under
section 1170.18, through which a person “serving a felony
sentence at the time of Proposition 47’s passage may be
resentenced to a misdemeanor term if the person ‘would have
3The superior court received the petition on June 17, 2021, but it was
not filed until January 12, 2022.
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been guilty of a misdemeanor under [Proposition 47] had th[e] act
been in effect at the time of the offense.’ ” (Page, at p. 1179; §
1170.18, subd. (a).)
If a petitioner meets the statutory criteria set out in section
1170.18, the court shall recall the petitioner’s sentence and
resentence the petitioner to a misdemeanor, unless the court, in
its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. (People v.
Lynall (2015) 233 Cal.App.4th 1102, 1109; § 1170.18, subd. (b).)
An “ ‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent
felony within the meaning of” section 667, subdivision
(e)(2)(C)(iv). (§ 1170.18, subd. (c).)
A petitioner is ineligible for relief under section 1170.18 if
he has suffered a prior conviction identified in section 667,
subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (i).) Those disqualifying
convictions include: (1) a sexually violent offense as defined in
Welfare and Institutions Code section 6600, subdivision (b); (2)
certain sex offenses against children under 14 years of age; (3)
any homicide offense, including attempted homicide, defined in
sections 187 to 191.5; (4) solicitation to commit murder; (5)
assault with a machine gun on a peace officer or firefighter; (6)
possession of a weapon of mass destruction; and (7) any serious or
violent felony punishable by life imprisonment or death. (§ 667,
subd. (e)(2)(C)(iv).)
Proposition 47 also added section 459.5, which provides
that “[n]othwithstanding 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). …
Shoplifting shall be punished as a misdemeanor, except that a
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person with one or more prior convictions for an offense specified
in [section 667, subdivision (e)(2)(C)(iv)] or for an offense
requiring registration pursuant to [section 290, subdivision (c)]
may be punished” as a felony. (§ 459, subd. (a).) Any act that falls
within section 459.5’s terms must be charged as shoplifting and
not “burglary or theft of the same property.” (§ 459.5, subd. (b).)
Once a resentencing petition is filed, the trial court
conducts an initial screening, which is limited to determining
“ ‘whether the [petitioner] has presented a prima facie basis for
relief under section 1170.18.’ ” (People v. Washington (2018) 23
Cal.App.5th 948, 953.) The initial screening focuses on the
petition and the record of conviction, not a resolution of disputed
or uncertain factual issues. (Id. at pp. 953–955.) The petitioner’s
statement in his petition that “the value of the stolen property
did not exceed $950 is sufficient to meet his prima facie burden
under Proposition 47 with respect to the value of the stolen goods
in question.” (Id. at p. 957.) “If the court finds, based on the
petition and its review of the record, that there is a prima facie
basis for relief, the court should then hold ‘a full qualification
hearing at which any additional evidence may be received on the
issue of eligibility.’ ” (Id. at p. 955.) “At that stage, it is likely that
a petitioner will be afforded counsel who can ably present
evidence on the disputed factual issues.” (Id. at p. 957.)
Under section 1170.18, the petitioner bears the burden of
proving eligibility for relief by a preponderance of the evidence.
(People v. Zorich (2020) 55 Cal.App.5th 881, 886.) We
independently review an order denying a section 1170.18
resentencing petition where the court’s decision turns on
undisputed facts. (People v. Perkins (2016) 244 Cal.App.4th 129,
136.)
Alexander contends, and the People agree, that the court
erred when it denied the resentencing petition based on its
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finding that Alexander suffered a disqualifying offense identified
in section 667, subdivision (e)(2)(C)(iv). We agree with the
parties.
When it denied Alexander’s petition, the court didn’t
indicate which of Alexander’s prior convictions constitutes a
disqualifying offense listed in section 667, subdivision
(e)(2)(C)(iv). Nothing in the record indicates Alexander suffered a
disqualifying conviction, however. None of the offenses Alexander
was convicted of at trial in 2012—i.e., first degree burglary with a
person present, battery with injury on peace officer, second
degree burglary, or resisting an executive officer—are
disqualifying offenses. (See §§ 1170.18, subd. (i); 667, subd.
(e)(2)(C)(iv).) Nor is there any indication in the record that the
prior felony conviction or the prior prison terms that Alexander
admitted at the 2012 trial involved disqualifying offenses.
Further, nothing on the face of Alexander’s petition
establishes he is ineligible for relief under section 1170.18.
Alexander alleged he has not suffered a prior conviction for an
offense listed in section 667, subdivision (e)(2)(C)(iv). (§ 1170.18,
subd. (i).) And he alleged that he was convicted of a qualifying
offense—i.e., second degree burglary of a commercial
establishment involving property not exceeding $950 in value, an
offense that, after Proposition 47’s passage, is now defined as
misdemeanor shoplifting. (See § 459.5, subd. (a); see also People
v. Gonzales (2017) 2 Cal.5th 858, 876–877.)
In short, the court erred when it denied Alexander’s
resentencing petition on the basis that he suffered a prior
conviction for an offense listed in section 667, subdivision
(e)(2)(C)(iv) that disqualifies him for relief under section 1170.18.
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The matter, therefore, must be remanded for the court to conduct
further proceedings on Alexander’s petition.4
DISPOSITION
The order denying Alexander’s resentencing petition is
reversed. The matter is remanded to the trial court for further
proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.*
4We disagree with Alexander that we should also order the court to
grant his petition. (See People v. Hernandez (2017) 10 Cal.App.5th 192,
204 [on remand, trial court must determine if resentencing appellant
would pose unreasonable risk of danger to public safety].)
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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