Filed 11/21/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES ROTH,

Defendant and Appellant.

 B271932 and B275527

 (Los Angeles County

 Super. Ct. No. BA410301)

APPEALS from orders of the Superior Court for Los Angeles 

County, Katherine Mader, Judge. Affirmed.

Stephen M. Vasil, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant Attorney 

General, Mary Sanchez and Margaret E. Maxwell, Deputy Attorneys 

General, for Plaintiff and Respondent. 
2

Defendant James Roth pleaded no contest to, and was convicted 

of, second degree burglary (Pen. Code,1 § 459), a felony, based upon his 

entry into a storage locker with the intent to commit larceny. The trial 

court imposed sentence, but suspended execution and placed defendant 

on probation. His probation subsequently was revoked after the car he 

was driving was stopped by the police, who found methamphetamine in 

a bag that belonged to his passenger. Before the probation violation 

hearing was conducted, defendant filed a petition under section 1170.18 

(part of the Safe Neighborhoods and Schools Act, which was passed by 

the voters as Proposition 47), asking the trial court to recall and 

resentence his conviction as a misdemeanor. The trial court granted 

the petition (without objection by the prosecutor), imposed a 

misdemeanor sentence, and placed defendant on summary probation. A 

month later, the court realized it had made a mistake in granting the 

petition because defendant’s conviction did not qualify for recall under 

Proposition 47, and therefore the misdemeanor sentence was 

unauthorized. After providing defendant an opportunity to be heard, 

the trial court vacated the misdemeanor sentence and reinstated 

defendant’s felony conviction and sentence. The trial court 

subsequently conducted the probation violation hearing, found that 

defendant had violated probation, and revoked probation and executed 

the felony sentence.

Defendant appeals from the order finding him in violation of 

probation and from the trial court’s order vacating the misdemeanor 

 

1 Further undesignated statutory references are to the Penal Code.
3

sentence and reinstating the felony sentence. With regard to the 

probation violation, defendant’s appointed counsel filed a brief asking 

this court to independently review the record regarding the probation

violation hearing in accordance with the holding of People v. Wende

(1979) 25 Cal.3d 436, 441. With regard to the trial court’s order

vacating the misdemeanor sentence and reinstating the felony sentence, 

defendant contends the trial court violated the bar on double jeopardy 

found in the California and United States Constitutions (U.S. Const., 

5th Amend.; Benton v. Maryland (1969) 395 U.S. 784, 794; Cal. Const., 

art. I, § 15) by imposing a sentence greater than the misdemeanor 

sentence it previously had imposed, because the misdemeanor sentence

was not unauthorized. 

We have reviewed the record of the probation violation hearing, 

and are satisfied that no arguable issues exist with regard to it. With 

respect to the reinstatement of the felony sentence, we conclude that 

the misdemeanor sentence was unauthorized, and therefore the trial 

court properly vacated it and reinstated the felony sentence.

BACKGROUND

A. Original Conviction

Because defendant pleaded no contest to the original charged 

crime, our discussion of the facts of the crime is based upon the 

testimony at the preliminary hearing.

In February 2013, Crecencio Ceballos-Luiz was renting a storage 

unit at the Extra Space Storage facility in Los Angeles. The storage 

unit was secured with a lock, for which only Ceballos-Luiz had a key. 
4

On February 25, at approximately 6:00 p.m., Ceballos-Luiz was at his 

storage unit. When he left, he secured the unit with his lock. When he 

returned to the storage unit on February 27, his key did not work 

because there was a new lock on the unit. He ultimately gained access 

to the unit, and discovered that some of his tools were missing. 

Defendant rented a storage unit near Ceballos-Luiz’s unit at the 

Extra Space Storage facility. After viewing surveillance footage of the 

area where both units were located for the dates February 25 and 26, 

2013, Los Angeles Police Department Detective Tae Hong interviewed 

defendant. Defendant admitted breaking into Ceballos-Luiz’s storage 

unit. Defendant told the detective that he cut the lock, rolled open the 

door, went inside and took a few items, then closed the door and put his 

own lock on it. 

On May 20, 2013, defendant was charged by information with one 

count of burglary as follows: “On or about February 25, 2013, in the 

County of Los Angeles, the crime of BURGLARY, in violation of PENAL 

CODE SECTION 459, a Felony, was committed by JAMES ROBERT 

ROTH, who did enter [a] storage locker with the intent to commit 

larceny and any felony.” The information also alleged four prior prison 

term enhancements (§ 667.5, subd. (b)), one of which subsequently was 

dismissed, and a prior strike under the Three Strikes law (§§ 667, 

subds. (b)-(j), 1170.12). 

On January 29, 2014, under a plea agreement, defendant pleaded 

no contest to the burglary charge and admitted the three prior prison 

term allegations and prior strike allegation. Defense counsel stipulated 

to a factual basis for the plea “based on the arrest report and the 
5

transcripts.” The trial court struck the prior strike allegation, found the 

burglary to be in the second degree, and imposed a sentence of nine 

years (which the court described as the upper term of six years, plus one 

year for each of the three prior prison term enhancements). The court 

suspended execution of the sentence, placed defendant on probation for 

36 months, and ordered him to serve 365 days in a residential drug 

treatment program. 

B. Probation Violations

On June 8, 2015, the trial court revoked defendant’s probation 

after receiving a report that defendant had failed to report for three 

drug tests. At the initial hearing on the violation, defense counsel 

explained that defendant had been hospitalized after a serious 

automobile accident, and upon his release from a one-month stay in the 

hospital, he entered a live-in drug program in which he is drug-tested. 

The court ordered a supplemental probation report, and continued the 

hearing. 

At the continued hearing, held on July 21, 2015, the court found 

that defendant was not in violation of probation and reinstated 

probation. At 2:30 in the morning the following day, defendant was 

arrested. The setting of the probation violation hearing was continued 

for several months while proceedings on this new charge were 

conducted in a separate case. 
6

C. Proposition 47 Petition

On October 8, 2015, before the probation violation was 

adjudicated, defendant, represented by private counsel, filed a petition 

under section 1170.18 to recall his felony sentence and to resentence the 

conviction as a misdemeanor. In the petition, counsel listed the felony 

as “§ 459 P.C. (COMMERCIAL BURGLARY),” and indicated that the 

amount in question was not more than $950. 

The hearing on the petition was held on November 12, 2015. At 

the hearing, the trial court asked the prosecutor whether defendant 

qualified for a sentence reduction, and the prosecutor responded, “Yes, 

Your Honor. He has no disqualifying prior felonies.” The court then 

granted the petition, recalled the felony sentence and imposed a 

misdemeanor sentence under Proposition 47, and placed defendant on 

summary probation. 

A month later, on December 11, 2015, the trial court issued an 

order to show cause, stating that it “may have improvidently granted 

[defendant’s Proposition 47] petition because defendant’s offense does 

not qualify for relief under Proposition 47 and the misdemeanor 

sentence is therefore unauthorized.” The court pointed out that it 

retained jurisdiction over the case because the time for filing a notice of 

appeal from the ruling had not yet lapsed and no notice of appeal had 

been filed. It also observed that an unauthorized sentence may be set 

aside at any time while the court retained jurisdiction over the case. 

(Citing People v. Amaya (2015) 239 Cal.App.4th 379, 384-385 (Amaya).)

Addressing the facts regarding defendant’s conviction, the court 

noted that defendant pled no contest to burglary, and that the evidence 
7

presented at the preliminary hearing was that defendant broke into the 

victim’s storage locker and stole tools. It observed that the elements of 

the crime of shoplifting, a new misdemeanor offense under Proposition 

47, include entry into a commercial establishment with intent to 

commit larceny of property valued at $950 or less. Citing a decision 

from Division Five of this District that had been published a few weeks 

earlier -- In re J.L. (2015) 242 Cal.App.4th 1108 -- that discussed the 

meaning of “commercial establishment” and shoplifting (id. at pp. 1114 

[“a commercial establishment is one that is primarily engaged in 

commerce, that is, the buying and selling of goods or services”], 1115 

[“Shoplifting is commonly understood as theft of merchandise from a 

store or business that sells goods to the public”]), the court concluded 

that the crime to which defendant pled did not qualify as shoplifting 

because the victim’s storage locker was not a business engaged in 

commerce. Therefore, the court issued an order to show cause why the 

November 12, 2015 order granting his Proposition 47 petition “should

[not] be set aside as unauthorized by Proposition 47 and his felony 

conviction and sentence reinstated.” 

Defendant filed a response to the order to show cause in which he 

argued that his crime qualified as shoplifting because he stole items 

from a storage locker, which was located in a storage facility, which was 

a commercial establishment. Therefore, he contended he was entitled 

to resentencing as a misdemeanor under Proposition 47. 

At the hearing on the order to show cause, held on January 21, 

2016, the trial court reiterated the underlying facts of the crime, and 

why it did not constitute shoplifting: “[T]he defendant actually cut a 
8

lock on a victim’s storage locker, stole some tools and put his own lock 

on the inside storage locker. And this occurred between 8:00 and 9:00 

p.m. [¶] I don’t believe there is any information in the record as to 

whether or not the main storage facility was, in fact, open at that time. 

But it’s clear to me that while the storage facility, in fact, may have 

been a commercial establishment and perhaps subject to Prop. 47, the 

individual storage locker belonging to an individual victim was not a 

commercial establishment. The individual storage locker had nothing 

to do with buying and selling of goods and services. This is a traditional 

second degree burglary.” Therefore, the court set aside the November 

12, 2015 order, finding it unauthorized under Proposition 47, and 

reinstated the original felony conviction. 

D. Probation Violation Hearing

The probation violation hearing was conducted on February 26, 

2016 and April 5, 2016. According to the evidence presented at the 

hearing, police officer Denward Chin was on patrol at 2:30 a.m. on July 

22, 2015, when he saw an older model car without a front license plate 

and with a rear paper plate. Officer Chin pulled up behind the car and 

activated his patrol car’s red lights and siren. The car did not stop 

immediately, and continued driving between five and 20 miles per hour 

for a few blocks. Officer Chin followed the car, with his red lights on, 

chirping the siren, and shining a spotlight at the rear-view mirror. 

While he was following the car, Officer Chin noticed something like 

glitter or a reflective powder coming out of the front passenger-side 

window. He then saw a baggie with a white substance inside being 
9

tossed out of the same window. Shortly thereafter, the car made a turn 

and pulled over. 

Defendant was in the driver’s seat, and Erik Valencia was in the 

front passenger seat. They were ordered from the car, and a backpack 

was recovered from the front passenger seat. The backpack contained 

several cell phones, a bag containing what was determined to be 0.44 

grams of methamphetamine, and empty plastic bags. While defendant 

and Valencia were being held by other officers, Officer Chin went back 

to the area where he saw the baggie being thrown out of the window 

and recovered it; it contained what was determined to be 6.88 grams of 

methamphetamine. 

Both defendant and Valencia testified at the probation violation 

hearing. Both testified that the methamphetamine was Valencia’s, and 

that defendant did not know that Valencia had methamphetamine until 

Officer Chin pulled up behind defendant’s car and Valencia started to 

panic. They also testified that they had never met before that morning. 

They said they met when they both came to help a mutual friend who 

had been kicked out of her apartment move her belongings; after 

defendant drove the friend and her belongings to her ex-boyfriend’s 

apartment, he agreed to give Valencia a ride. 

The director of the residential drug treatment program that 

defendant attended also testified; his testimony raised questions about 

defendant’s credibility and the veracity of defendant’s story. 

The trial court found that defendant was aiding and abetting 

Valencia and was consorting with someone who had narcotics for sale, 

and therefore violated his probation. In ordering that his sentence be 
10

executed, the court realized that the original nine year sentence was 

incorrect; it had imposed an incorrect upper term of six years, rather 

than the correct upper term of three years. Therefore, the court ordered 

that the unauthorized sentence of nine years be corrected nunc pro tunc 

to a sentence of six years (the upper term of three years, plus one year 

for each of the three prior prison term enhancements). 

E. Notices of Appeal

On April 29, 2016, defendant filed a notice of appeal from the 

April 5, 2016 order finding him in violation of probation and executing 

his suspended sentence. That same date, he also attempted to file a 

notice of appeal from the January 21, 2016 order in which the trial 

court vacated its earlier grant of defendant’s Proposition 47 petition and 

reinstated defendant’s felony sentence. The latter notice of appeal was 

rejected as untimely. 

Defendant filed a motion in this court, asking for relief from 

default for his failure to timely file a notice of appeal. His motion was 

supported by, among other things, a declaration from Paul J. Cohen, the 

privately retained attorney who had represented him in the trial court 

proceedings at issue. Mr. Cohen explained that after the trial court’s 

January 21, 2016 ruling, defendant indicated that he wanted to appeal, 

and Mr. Cohen told him that he would file a notice of appeal on his 

behalf. Due to an oversight, Mr. Cohen failed to timely do so. In his 

motion, defendant asked that we apply the doctrine of constructive 

filing set forth in People v. Slobodion (1947) 30 Cal.2d 362 and In re 

Benoit (1973) 10 Cal.3d 72, and grant him relief. We did so, and 
11

directed the Los Angeles Superior Court to accept for filing as timely 

filed defendant’s notice of appeal. 

DISCUSSION

A. Appeal From the Order Reinstating Felony Sentence

Defendant contends on appeal that the trial court did not have 

jurisdiction to reinstate his felony sentence after the misdemeanor 

sentence had been entered into the court minutes, and that by doing so, 

the court violated his federal and state constitutional right to protection 

against double jeopardy. 

As defendant correctly observes, the California Supreme Court 

has held that “a valid sentence may not be increased after formal entry 

in the minutes,” because doing so would implicate double jeopardy 

concerns. (People v. Karaman (1992) 4 Cal.4th 335, 350 & fn. 16, italics 

omitted.) But the Supreme Court also has held that an unauthorized

sentence, such as when the court is required to impose a certain 

minimum term but imposes a lesser term instead, “is considered invalid 

or ‘unlawful’ and may be increased even after execution of the sentence 

has begun.” (Id. at p. 349, fn. 15.) The question presented in this case 

is: Was the misdemeanor sentence a valid sentence or an unauthorized 

sentence? If the former, the trial court’s ruling vacating the 

misdemeanor sentence must be reversed; if the latter, the ruling must 

be affirmed. We conclude it is the latter.
12

1. Unauthorized Sentences

The issue of unauthorized sentences generally arises in the 

context of the waiver doctrine, i.e., whether an appellant may challenge 

a sentence on appeal despite having failed to raise an objection below. 

(See, e.g., People v. Scott (1994) 9 Cal.4th 331, 351-356 (Scott); People v. 

Welch (1993) 5 Cal.4th 228, 234-237 (Welch).) As our Supreme Court 

has explained, “the ‘unauthorized sentence’ concept constitutes a 

narrow exception to the general requirement that only those claims 

properly raised and preserved by the parties are reviewable on appeal.” 

(Scott, supra, 9 Cal.4th at p. 354.) 

The Supreme Court observed that “a sentence is generally 

‘unauthorized’ where it could not lawfully be imposed under any 

circumstance in the particular case,” and “commonly occurs where the 

court violates mandatory provisions governing the length of 

confinement.” (Scott, supra, 9 Cal.4th at p. 354.) In such a 

circumstance, the sentence is “subject to judicial correction whenever 

the error [comes] to the attention of the trial court or a reviewing court,” 

even if the correction increases the sentence originally imposed. (People 

v. Serrato (1973) 9 Cal.3d 753, 763; see also In re Ricky H. (1981) 30 

Cal.3d 176, 191.) In contrast, “claims deemed waived on appeal involve 

sentences which, though otherwise permitted by law, were imposed in a 

procedurally or factually flawed manner.” (Scott, supra, 9 Cal.4th at p. 

354.)
13

2. The Misdemeanor Sentence in This Case

As noted, defendant originally was convicted of second degree 

burglary, a felony, in January 2014, and a felony sentence was imposed. 

In November 2014, California voters approved Proposition 47, which 

reclassified as misdemeanors certain drug and theft offenses that 

previously had been felonies or “wobblers,” and allowed defendants who 

had been convicted of those offenses as felonies to petition to seek 

resentencing as misdemeanors. (In re J.L., supra, 242 Cal.App.4th at 

pp. 1111-1112; People v. Contreras (2015) 237 Cal.App.4th 868, 889-

890.)

One of those offenses is the crime of “shoplifting,” which was 

created by Proposition 47, and codified at section 459.5. That statute 

provides, in relevant part: “(a) Notwithstanding Section 459 [i.e., the 

burglary statute], 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, [with certain exceptions not at issue here]. [¶] (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.” (§ 459.5.)

Defendant petitioned to have his felony burglary sentence recalled 

and be resentenced for misdemeanor shoplifting. Having been told by 

the prosecutor -- incorrectly -- that defendant qualified for sentence 
14

reduction and that he had no disqualifying felonies, the trial court 

granted the petition, vacated the felony sentence, and imposed a 

misdemeanor sentence. It subsequently determined, based upon the 

evidence that had been presented at the preliminary hearing, that 

defendant’s conviction did not qualify as shoplifting because the 

burglary involved entry into a storage locker that was leased by an 

individual and kept locked, and therefore the locker was not a 

commercial establishment. Because defendant’s conviction did not 

qualify for resentencing, the court vacated the misdemeanor sentence 

and reinstated the felony sentence.

3. The Misdemeanor Sentence Was Unauthorized

In arguing that the misdemeanor sentence was not unauthorized, 

defendant seizes on language the Supreme Court used in explaining the 

difference between cases involving unauthorized sentences and those 

that do not. The Court in Welch noted that cases finding sentences 

unauthorized “generally involve pure questions of law that can be 

resolved without reference to the particular sentencing record developed 

in the trial court.” (Welch, supra, 5 Cal.4th at p. 235.) Defendant

argues, based on this language, that his misdemeanor sentence “was 

not unauthorized, for it could not have been corrected without reference 

to the facts underlying his record of conviction.” 

Defendant looks for support in the reasoning of the appellate court 

in Amaya, supra, 239 Cal.App.4th 379, a case with facts similar to the 

facts presented here. In Amaya, the defendant sought resentencing 

under Proposition 36, which provided for resentencing of certain 
15

sentences imposed under the Three Strikes law. (Amaya, supra, 239 

Cal.App.4th at p. 381.) Based upon assurances by the prosecutor, 

defense counsel, and the court clerk that defendant was eligible for 

resentencing, the trial court granted defendant’s request. A month 

later, the prosecutor discovered that, in fact, defendant was not eligible 

because a disqualifying gang allegation had been found to be true, and 

the trial court reinstated the defendant’s original sentence. (Ibid.) The 

defendant appealed. Although the appellate court affirmed, it did so on 

the ground that the order reducing the sentence was void on its face, 

and expressly found that the sentence was not unauthorized because 

the record before the trial court at the time it granted the defendant’s 

petition (which did not include any evidence showing the gang 

allegation had been found to be true) indicated that the defendant was 

eligible for sentence reduction. (Id. at pp. 386-387.) Thus, the appellate 

court concluded that the reduced sentence did not result in an error 

that was “‘“clear and correctable” independent of any factual issues 

presented by the record at sentencing,’” and was instead a “‘sentence[] 

which, though otherwise permitted by law, [was] imposed in a 

procedurally or factually flawed manner.’” (Id. at p. 385, quoting Scott, 

supra, 9 Cal.4th at p. 354.)

Respectfully, we disagree with the appellate court’s analysis of 

unauthorized sentences in Amaya. It, like defendant’s argument here,

ignores the distinction between a sentencing decision that the trial 

court had the discretion to make, although flawed in some way, and one 

for which it had no legal authority. This failure to appreciate the 
16

distinction is illustrated by the Amaya court’s discussion of In re 

Alexander A. (2011) 192 Cal.App.4th 847 (Alexander A.), which the 

Amaya court states “is closely analogous” to the case before it. (Amaya, 

supra, 239 Cal.App.4th at p. 385.) 

The Amaya court explained that in Alexander A., the parties 

stipulated to a certain amount as an appropriate restitution fine, and 

based on that stipulation, the court imposed that amount. The People 

later argued that the appropriate amount of restitution was higher, and 

that imposition of the lower amount resulted in an unauthorized 

sentence. (Amaya, supra, 239 Cal.App.4th at p. 386.) The Amaya court 

observed that the appellate court in Alexander A. held that the sentence 

was not unauthorized because “the trial court was required to 

determine the amount of the victim’s economic losses by some rational 

method, and it had done so by accepting the parties’ stipulations.” 

(Amaya, supra, 239 Cal.App.4th at p. 386.) The Amaya court found 

“almost identical[]” circumstances were present in the case before it: 

the trial court made its determination that the defendant was eligible 

for resentencing based upon the defendant’s petition, which indicated 

that he was eligible, and the prosecutor’s stipulation that he was 

eligible. (Ibid.) Therefore, the court held that “[u]nder these 

circumstances, the . . . resentencing did not result in an unauthorized 

sentence.” (Ibid.)

What the Amaya court overlooked is that while a trial court has

the discretion to determine the appropriate amount of a restitution fine 

based upon the facts before it, a trial court does not have any discretion 
17

to resentence a defendant under Proposition 36 or Proposition 47 unless 

the defendant, in fact, qualifies for resentencing. Although the court 

acknowledged, in finding that the resentencing was void,2 that 

prosecutors “cannot, by stipulation, confer jurisdiction on the trial court 

to resentence a person under [Proposition 36] when the trial court’s own 

records in the case show that the person is indisputably ineligible,” it 

nevertheless found that the fact that the original sentencing minute 

order showing that the defendant did not qualify for resentencing was 

not before the trial court at the time of resentencing, combined with the 

prosecutor’s stipulation that no disqualifying finding had been made,

was relevant to whether the resentencing was unauthorized. (Amaya, 

supra, 239 Cal.App.4th at p. 387.) We disagree. Regardless whether 

the facts showing the defendant’s disqualification were before the trial 

court, the existence of those facts, even if the court was unaware of 

 

2 We note that this finding alone established that the resentencing was 

unauthorized. A void sentence -- which cannot lawfully be imposed under 

any circumstance -- is by definition an unauthorized sentence. The difference 

between the two is that a sentence is void on its face only if “its invalidity is 

apparent from an inspection of the judgment roll.” (People v. Davis (1904) 

143 Cal. 673, 675.) An unauthorized sentence is not so limited. A court may 

go beyond the judgment roll to determine whether a sentence is 

unauthorized, such as when determining whether a sentence is unauthorized 

because it violates section 654 by imposing multiple punishments for 

violations arising out of a single act or omission. (See, e.g., Neal v. State of 

California (1960) 55 Cal.2d 11, 17 [court reviewed evidence presented in the 

case to determine whether the defendant entertained multiple criminal 

objectives that were not incidental to each other]; People v. Perez (1979) 23 

Cal.3d 545, 551-552 [same].) Therefore, although a sentence may be 

unauthorized even if does not meet the narrow definition of a judgment void 

on its face, a sentence pronounced in a void judgment will always be an 

unauthorized sentence.
18

them at the time, rendered the trial court without any power to 

resentence him. Therefore, the sentence was unauthorized because “it 

could not lawfully be imposed under any circumstance in the particular 

case.” (Scott, supra, 9 Cal.4th at p. 354.)

That is exactly the case here. The trial court could not lawfully 

impose a misdemeanor sentence for defendant’s offense unless that 

offense qualified as shoplifting under section 459.5. Despite the 

prosecutor’s assurances at the time of resentencing, it did not. The 

record shows that defendant was charged with entering a storage locker

with intent to commit larceny. He pleaded no contest, and his counsel 

stipulated to a factual basis for the plea based in part on the 

preliminary hearing transcript. That transcript shows, without 

question, that the storage locker at issue was leased by an individual 

and kept locked; it was not open to the public as a commercial business. 

Therefore, defendant’s entry into the locker to commit larceny did not 

constitute shoplifting, and he did not qualify for resentencing under 

Proposition 47. (See People v. Stylz (2016) 2 Cal.App.5th 530 (Stylz) [a 

privately leased storage locker in a storage facility is not a commercial 

establishment under the shoplifting statute].)

In his appellant’s reply brief, defendant argues that at the time 

the trial court imposed the misdemeanor sentence, it was not 

unauthorized because there were no published decisions at that time 

that held that entry into a privately leased storage locker at a storage 

facility did not qualify as entry into a commercial establishment. It is 

true that our decision in Stylz, supra, 2 Cal.App.5th 530, in which we 

affirmed the trial court’s ruling that the defendant’s conviction for 
19

burglary from a storage locker did not qualify for sentence reduction 

under Proposition 47, was not published until after the trial court in 

this case imposed the misdemeanor sentence and then vacated that 

sentence and reinstated the felony sentence. But we did not announce a 

new rule of law in our decision. We merely applied the existing 

statutory language, as the trial court in that case had done, and 

concluded that the burglary of a storage locker clearly did not come 

within the language of the shoplifting statute. The fact that the trial 

court in this case did not have the guidance of our published decision 

before it reduced defendant’s sentence to a misdemeanor and later 

reinstated the felony sentence did not make the misdemeanor sentence 

any less unauthorized under Proposition 47.

In short, we hold that the recall of defendant’s felony sentence and 

imposition of a misdemeanor sentence was unauthorized. Accordingly, 

the trial court acted within its authority by vacating the misdemeanor 

sentence and reimposing the felony sentence.

B. Appeal From Order Finding Probation Violation

As noted, in defendant’s appeal from the trial court’s order finding 

a probation violation, defendant’s appointed counsel filed a brief asking 

this court to independently review the record in accordance with the 

holding of People v. Wende, supra, 25 Cal.3d 436. On June 7, 2017, we 

advised defendant that he had 30 days in which to submit by letter or 

brief any grounds of appeal contentions or argument he wished this 

court to consider. We have received no response to date. 
20

We have examined the entire record and are satisfied that no 

arguable issues exist, and that defendant has, by virtue of counsel’s 

compliance with the Wende procedure and our review of the record, 

received adequate and effective appellate review of the judgment 

entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 

259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The January 21, 2016 and April 5, 2016 orders are affirmed.

CERTIFIED FOR PUBLICATION

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.