Filed 6/20/16 P. v. Brafford 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN BRAFFORD, 

Defendant and Appellant.

 B264894

 (Los Angeles County

 Super. Ct. No. NA094044)

APPEAL from an order of the Superior Court of Los Angeles County,

Laura Laesecke, Judge. Affirmed. 

Janet Uson, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler and Lance E. Winters, 

Assistant Attorneys General, Mary Sanchez and Michael J. Wise, Deputy Attorneys 

General, for Plaintiff and Respondent. 

______________________________
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 showing that he is eligible for resentencing under the voter initiative. 

FACTUAL AND PROCEDURAL SUMMARY

The preliminary hearing record establishes that, in November 2012, appellant went 

into a Long Beach BMW dealership, pretending to pick up a motorcycle for a friend. He 

handed the manager 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 already 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 key for a demonstration motorcycle from the desk and left. The key was 

recovered after he was apprehended. 

Appellant was charged with felony second degree commercial burglary. (§ 459.) 

Two prior convictions were alleged under section 667.5, subdivision (b), one 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 prior 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 summarily 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 burglary 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 (wobbler). (§§ 460, 461.) Proposition 47 added new section 

459.5 defining the crime 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 charged with shoplifting may also be charged with burglary or theft of the same 

property.”’ (See People v. Contreras (2015) 237 Cal.App.4th 868, 890–891.) 

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.) Section 459.5, subdivision (a) defines 

“shoplifting” as “entering a commercial establishment with intent to commit larceny 

while that establishment is open during regular business hours.” Nothing in that 
4

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 larceny, 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 ‘theft’”].) 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 conflate 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 felony. (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 necessary 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 presenting 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 entered 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 requires fraudulent 

acquisition of both possession and ownership].) 

That appellant’s attempted 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, review granted 

Feb. 17, 2016, S231171.)
5

impossibility, or the defense of mistake of fact, negates criminal intent only when “the 

defendant holds a mistaken belief in a fact or set of circumstances which, if existent or 

true, 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 mistaken belief in his right to possess the BMW F800 motorcycle.

Nor is his subsequent theft of the key to a demonstration motorcycle relevant to the intent 

with which he entered the dealership.

Appellant contends 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.4th 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 claim 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 not 

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 where, as here, the

defendant either is mistaken about, or misrepresents, the property whose value is at issue. 

Contrary to appellant’s contention, we are not required to presume that his 

conviction was for the least punishable offense. His reliance on People v. Guerrero

(1988) 44 Cal.3d 343 is misplaced because the issue in that case was whether a prior 

conviction could be used for enhancement purposes. (Id. at p. 354.) In that situation, the 

prosecution has the burden of proof. (See People v. Towers (2007) 150 Cal.App.4th 

1273, 1277 [“The prosecution bears the burden of proving beyond a reasonable doubt that 
6

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. If the record of conviction is silent as to 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 say that the key appellant presented at the 

dealership had a “new vehicle stock tag.” It is reasonable to infer that appellant entered 

the dealership with the intent to obtain a new BMW motorcycle by trick, and that the 

value of a new brand-name motorcycle in 2012 exceeded $950. (See People v. Zamudio

(2008) 43 Cal.4th 327, 357–358 [circumstantial evidence and reasonable inferences may 

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 error 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.