Filed 6/20/16 P. v. Braffo r d CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifi ed 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE ,
Plaintiff and R espon dent
,

v.

JUSTIN BRAFFORD ,
Defendant and A ppellant

. B 2 6 4894
(Los Angeles County Super. Ct. No. N A 0 9 4044 )

APPEAL from an order of the Super ior Court of Los Angeles County,
Laura Laesecke
, Judge

. A ffirmed.
Janet Uson , und er appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters
, Assistant Attorney s General, Mary Sanchez and Michael J. Wise , Deputy Attorneys General, for Plaintiff and Resp ondent.

______________________________2

Justin Brafford appeals from the order denying his petition for resentencing under Proposition 47. (Pen. Code, § 1170.18.) 1 We affirm because appellant has not met his
burden of show ing that he is eligible for re sentencing under the voter initiative

.

FACTUAL AND PROCEDURAL SUMMARY The preliminary hearing record establishes that, in November 20 12, appellant went into a Long B each BMW dealership, pretending to pick up a motorcycle for a friend. He
handed the ma nager a key for a BMW F800 motorcycle . Attached to the key was “a new vehicle stock tag, . . . identifying the year, make
, model, and VIN number.” The key had been missing from the dealership for some time. Unbeknownst to appellant, the motorcycle alrea dy had been sold. The manager grew suspicious
, invited appellant to sit
down at the desk
, and asked him the name of the person for whom he was picking up the motorcycle. Appellant gave a name, but became increasingly nervous . Eventually, he grabbed a ke y for a demonstration motorcycle from the desk and left. The key was
recovered after h e was apprehended.
A ppellant was charged with felony second degree commercial burglary. (§ 4 59.) Two prior convictions were alleged under section 667.5, sub division (b), o ne of which qualified as a prior strike conviction under the Three Strikes law. (§§ 667, subds. (b)

- (i); 1170.12, subds. (a)

- (d).) Based on a negotiated settlement, appellant pled no contest to the second degree commercial burglary charge, the pri or strike was stricken, and the court imposed a three

- year prison term. In 2015, appellant filed a form petition for resentencing under Proposition 47, on which he checked a box, stating that the amount in question was not more than $950.
The court summ arily denied the petition because the amount exceeded $950. Appellant filed a timely notice of appeal and a request for a certificate of probable cause, in which he claimed that the property he stole was a “KEY.”

1 Statutory references are to the Penal Code.3 DISCUSSION
A person is guilty of burgla ry if he or she enters any building (or other listed structure) with the intent to commit larceny or any felony. (§ 459; People v. Davis (1998) 18 Cal.4th 712, 715 .) Burglary of an uninhabited building is of the second degree
and a felony

- misdemeanor ( wo bbler )

. (§§ 460, 461.) Proposition 47 added new section
459.5 defining the c rime of “shoplifting, ” which reduces some second degree burglaries
to misdemeanors. It provides, in relevant part: ‘ “(a) 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

. . . [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person
who is ch arged with shoplifting may also be charged with burglary or theft of the same property.” ’ (See People v. Contreras (2015) 237 Cal.App.4th 868, 890

– 8 91 .) Proposition 47 also added section 1170.18, which allows persons previously convicted of
felonies that would be misdemeanors under the voter initiative to petition for resentencing. ( People v. Sherow (2015) 239 Cal.App.4th 875, 878

– 879 ( Sherow ).) Respondent argues that appellant’s entry into the dealership to commit theft by
trick cannot be construed as shoplifting because “shoplifting requires free access to goods
offered for sale
, ” and appellant did not have free access to the demonstrator motorcycle,
which presumably was not for sale. We do not agree. In interpreting a voter initiative, “we apply the same principles that govern statutory construction

. [Citation.] ” ( People v. Rizo (2000) 22 Cal.4th 681, 685

. ) We give words their ordinary meanings “ unless special definitions are provided. ” ( People v.
Love (2008) 166 Cal.App.4th 1292, 1297 .) We construe the language in the context of the overall statutory scheme. ( Rizo , at p. 685.) S ection 459.5 , subdivision (a) defines “shoplifting” as “ entering a commercial establishment with intent to commit larceny while that establishment is open during re gular business hours

. ” Nothing in that4

definition requires free access to merchandise for sale. The word “larceny” is subject to a broad interpretation since section 490a provides that “ [w] herever any law or statute of
this state refers to or mentions la rceny, embezzlement, or stealing, said law or statute
shall

. . . be read and interpreted as if the word ‘theft’ were substituted therefor.” ( See
also People v. Sanders (1998) 67 Cal.App.4th 1403, 1416 [“ larceny, larceny by trick, obtaining money by false pretenses, embezzlement, and related theft offenses ” were
consolidated in § 484 “ as the single crime of ‘t heft ’ ”].) The voters are presumed to have been aware of existing law. (See John L. v. Superior Court (2004) 33 Cal.4th 158, 171 .) 2 Both parties con flate the facts supporting appellant’s plea to the charged crime of commercial burglary with facts that may support a separate unchanged crime of larceny. Burglary requires a felonious intent at the time of entry
, but not the completion of the
intended f

elony. ( People v. Allen (1999) 21 Cal.4th 846, 863 , fn. 18.) “ As a practical matter, if the defendant commits, or gives some indication of intending to commit, theft or a felony in a building shortly after entering it, no great inferential leap is necess ary to conclude that the intent to commit the supporting offense existed at the time of entry. ” ( People v. Kwok (1998) 63 Cal.App.4th 1236, 1246 .) Here, immediately upon entry, appellant attempted to obtain possession of a BMW F800 motorcycle, by present ing the key to the vehicle and claiming that he needed to pick up the motorcycle for a friend. From these facts, it may be inferred that he ent ered the dealership with the intent to
commit a crime of deception, most probably theft , or larceny, by trick

. (See People v.
Traster (2003) 111 Cal.App.4th 1377, 1387 [in larceny by trick
, only possession of property is acquired , whereas obtaining property by false pretenses require s fraudulent acquisition of both possession and ownership ].) That appellant’s att empted larceny by trick was unsuccessful , or factually impossible because the BMW F800 motorcycle had been sold, is irrelevant. Factual

2 The issue of whether the definition of shoplifting in section 459.5 requires an intent to commit larceny or theft of any kind is currently pending before the California Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35, revi ew granted Feb. 17, 2016, S231171.)5

impossibility, or the defense of mistake of fact
, negate s criminal intent only when “t he
defendant holds a mistaken bel ief in a fact or set of circumstances which, if existent or

t rue, would render the defendant’ s otherwise criminal conduct lawful. ” ( See People v.
Lawson (2013) 215 Cal.App.4th 108, 111.) Nothing in the record in this case suggests
that defendant had a mi staken belief in his right to possess the BMW F800 motorcycle

. Nor is his subsequent theft of the key to a demonstrat ion motorcycle relevant to the intent with which he entered the dealership. Appellant conten ds the record of conviction shows the amount at issue is less than $950. A number of courts have concluded that a defendant bears the initial burden of showing eligibility for resentencing under Proposition 47, including the value of the property at issue. (See People v. Perkins (2016) 244 Cal.App.4t h 129, 136

– 137; People
v. Rivas

- Colon (2015) 241 Cal.App.4th 444, 449

– 450; Sherow
, supra , 239 Cal.App.4th at
pp. 878

– 880.) That is because ‘“ “[a] party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the cla im for relief or defense he is asserting.”’ ” ( Id . at p. 879; see Evid.Code, § 500.)
The court in Sherow suggested that a proper petition for resentencing “ could certainly contain at least [the defendant ’s] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination. ( People v. Bradford (2014) 227 Cal.App.4th 1322, 1341.) ” ( Sherow
, supra , 239 Cal.App.4th at p. 880.) That does no t mean that a defendant can meet his or her initial burden by checking off a box on the petition regarding the value of the property at issue, especially whe re , as here, the defendant either is mistaken about, or misrepresent s, the property whose value is at issue

. Contrary to appellant’s contention, w e are not required to presume that hi s conviction was for the least punishable offense. Hi s reliance on People v. Guerrero (1988) 44 Cal.3d 343 is misplaced becaus e t he issue in that case was whether a prio r conviction c ould be used for enhancement purposes

. ( Id. at p. 354 .) In that situation, the prosecution has the burden of proof. (S ee People v. Towers (2007) 150 Cal.App.4th 1273, 1277 [“The prosecution bears the burden of proving beyond a re asonable d oubt that6

a defendant’ s prior convictions were for either serious or violent felonies”].) In contrast,
here
, appellant is seeking more favorable treatment, which is why he has the burden of showing eligibility. I f the record of conviction is silent a s t o the amount at issue, appellant fails to show eligibility for resentencing

. Appellant acknowledges that the record of conviction includes the transcript of the preliminary hearing, but claims that there was no testimony regarding the “age, condition,

or value of any property involved.” While the manager did not testify to the precise
value of the BMW F800 motorcycle , he did sa y that the key appellant presented at the dealership had a “new vehicle stock tag.” It is reasonable to infer that appellant ente red the dealership with the intent to obtain a new BMW motorcycle by trick , and that the
value of a n ew brand

- name motorcycle in 2012 exceed ed $950. (See People v. Zamudio (2008) 43 Cal.4th 327, 357

– 358 [circumstantial evidence and reasonable inferences m ay be substantial evidence supporting conviction]; see also People v. Giordano (2007) 42 Cal.4th 644, 666 [trial court order presumed correct on appeal; ‘“ “ [a]ll intendments and presumptions are indulged to support it on matters as to
which the record is silent, and erro r must be affirmatively shown”’ ” ].)
We find no error

.

DISPOSITION
The order is affirmed

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

MANELLA, J. COLLINS, J.