Filed 3/1/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Appellant,

v.

WEN CHEN,

Defendant and Respondent.

 B264693

 (Los Angeles County

 Super. Ct. No. BA392728)

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

Terry A. Bork, Judge. Reversed. 

Jackie Lacey, District Attorney of Los Angeles County, Steven Katz, and Matthew 

Brown, Deputy District Attorneys, for Plaintiff and Appellant. 

Ronald L. Brown, Public Defender of Los Angeles County, Danielle O‟Sullivan 

and Albert Menaster, Deputy Public Defenders for Defendant and Respondent.

______________________________

The People appeal a trial court order issued under the Safe Neighborhoods and 

Schools Act, Proposition 47. The order reduced defendant Wen Chen‟s felony second 
2

degree burglary conviction (Pen. Code, § 459)1to a misdemeanor second degree 

burglary, and modified terms of probation in accord with the new misdemeanor 

conviction. We reverse. 

FACTS

In January 2012, the People filed a criminal complaint charging Chen with two 

criminal charges, perjury in the application for a driver‟s license (count 1; § 118, subd.

(a);) and second degree commercial burglary (count 2; § 459). Count 1 alleged that Chen 

failed to disclose that he had applied for, received, and used an Illinois driver‟s license 

under the name Yu Liu. As to count 2, the complaint alleged that Chen entered the 

Department of Motor Vehicles, “a commercial building,” with the intent “to commit 

larceny and any felony.” 

In accord with the terms of a negotiated plea agreement, Chen pled nolo 

contendere to count 2 and the trial court dismissed the perjury charge. The trial court 

suspended imposition of sentence and ordered Chen placed on formal probation for three 

years on the condition that he serve 224 days in the county jail and otherwise obey all 

laws, orders and regulations prescribed by the court and the probation department. 

At the general election on November 4, 2014, the voters of California approved 

Proposition 47, which became effective the following day. Among its myriad provisions, 

Proposition 47 reduced a limited number of specified nonviolent crimes, for example, 

simple drug possession, from felonies to misdemeanors. Further, it created certain new 

misdemeanor crimes that largely overlay certain prior felony crimes. For example, the 

new crime of shoplifting (see § 459.5) now displaces the prior felony of second degree

burglary where a defendant entered a commercial establishment with the intent to commit 

a theft involving property valued at less than $950. In addition, Proposition 47 enacted 

section 1170.18 which, as relevant to Chen‟s current matter, established procedures for 

persons who are “currently serving a sentence” for prior felony crimes that are now 

 

1 All further undesignated section references are to the Penal Code. 
3

misdemeanors under the initiative to petition the superior court to recall the felony 

conviction and sentence, and to be resentenced for the misdemeanor crime. 

Chen filed a petition to recall his felony second degree burglary conviction and to 

be resentenced on the charge as a misdemeanor second degree burglary conviction.2

Chen‟s petition stated that he had been convicted of “PC 459 (2nd),” and that “[t]he 

amount in question is not more than $950.” The People filed an opposition to Chen‟s 

Proposition 47 petition stating that his burglary conviction was based on underlying 

“perjurious statements.” 

The parties argued Chen‟s Proposition 47 petition to the trial court, and the court 

granted the petition. The court ordered the January 2012 felony complaint to be “deemed 

amended” to allege count 2 as the offense of misdemeanor second degree burglary, and, 

thereon, declared Chen‟s conviction to be for misdemeanor second degree burglary. The 

court vacated its order placing Chen on formal probation for three years, and “converted” 

Chen to summary probation. 

The People filed a timely appeal. 

DISCUSSION

The People contend the trial court‟s order reducing Chen‟s felony second degree 

burglary conviction to a misdemeanor second degree burglary conviction is not 

authorized by Proposition 47. We agree. 

The Relevant Penal Code Sections

As relevant to Chen‟s current case, section 459 provided at the time of his 2011

criminal conduct as follows: 

 

2 As we explain below, second degree burglary is a “wobbler,” meaning it may be 

punished alternately as a felony or misdemeanor. When a crime is punishable, in the 

discretion of the court, by imprisonment in state prison or imprisonment in the county 

jail, it is a felony unless a punishment other than a state prison term is imposed, or the 

offense is designated or charged as a misdemeanor, or it is determined or declared to be a 

misdemeanor. (§ 17, subd. (b).) Thus, second degree burglary is a felony unless one of 

the circumstances set forth in section 17, subdivision (b), applies.
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“Every person who enters any . . . building . . . with intent to commit grand 

or petit larceny or any felony is guilty of burglary. As used in this chapter,

„inhabited‟ means currently being used for dwelling purposes, whether

occupied or not. . . .” 

Further, section 460 provided: 

“(a) Every burglary of an inhabited dwelling house . . . or the inhabited 

portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.” 

Finally, section 461 provided: 

“(a) Burglary in the first degree: by imprisonment in the state prison for 

two, four, or six years.

(b) Burglary in the second degree: by imprisonment in the county jail not 

exceeding one year or imprisonment pursuant to subdivision (h) of Section 

1170.” 

As noted above, under the burglary statutes at the time of Chen‟s burglary 

conduct, the offense of second degree burglary was a wobbler, chargeable as either a 

felony or as a misdemeanor. Proposition 47 made no changes to sections 459, 460 or 

461, nor did it explicitly reduce all prior felony second degree burglary offenses to 

misdemeanor second degree burglary offenses. In relation to Chen‟s case, Proposition 47 

enacted new section 459.5, which, as we noted above, now defines the new misdemeanor 

offense of “shoplifting” where, formerly, second degree burglary could have been 

charged. 

Proposition 47 added section 1170.18, subdivision (a), which reads as follows: 

“(a) A person currently serving a sentence for a conviction . . . of a felony . . . 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 
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resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and 

Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 . . . as those sections have 

been amended or added by this act.” (Italics added.) 

Analysis

Proposition 47, by amending the language of certain statutes that previously 

defined felony offenses, explicitly reduced a number of specified offenses from felonies 

to misdemeanors. It added new misdemeanor offenses to the Penal Code. The offenses 

amended or added by Proposition 47 are sections 459.5, 473, 476a, 490.2, 496, and 666, 

and Health and Safety Code sections 11350, 11357, and 11377. The offense of burglary 

as defined in section 459 is not one of the reduced offenses included in the text of 

Proposition 47, except to the extent that new section 459.5 –– the misdemeanor crime of 

shoplifting –– now applies. 

The People argue that unless Chen‟s felony second degree burglary conviction 

can be fit within the new crime of shoplifting as defined in section 459.5, the trial court 

did not have the authority under Proposition 47 to reduce his felony burglary conviction 

to a misdemeanor burglary conviction. In reply, Chen argues that, once a Proposition 47 

petitioner “alleges that the value of the property at issue [in an offense] was $950 or less, 

the burden shifts to the prosecution to establish facts which disqualify the petitioner from 

Prop[osition] 47 relief.” We find the People‟s position to be better reasoned.

Given the allegations set forth in count 1 of the criminal complaint, the perjury 

charge, the “larceny” language in count 2 plainly was superfluous, and reflected nothing 

more than the verbatim use of the statutory language from the burglary statute. 

(See § 459.) There simply was no larceny, that is, no theft of any kind, involved in 

Chen‟s case. Chen was not convicted of a felony offense that is now reduced to a 

misdemeanor offense under Proposition 47. The offense of burglary, when charged as a 

felony under section 459, remains a felony offense following the passage of Proposition 

47 unless the defendant‟s criminal conduct involved a theft from a commercial 

establishment, and the theft involved less than $950, in which case the offense is now 

shoplifting under section 459.5. An existing felony burglary conviction not involving a 
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theft of less than $950 is unaffected by Proposition 47. The record before us on the 

People‟s appeal establishes without any room for doubt –– regardless of which side had 

the burden of proof in the trial court on the question of Chen‟s eligibility for Proposition 

47 relief –– that Chen did not commit the offense of misdemeanor shoplifting. He was 

convicted of felony second degree burglary based on the entry into a building with the 

intent to commit the felony of perjury. This is established by the pleadings and record of 

conviction. Chen was not convicted of a felony offense that is now reduced to a 

misdemeanor offense under Proposition 47. As a result, he is not eligible for Proposition 

47 relief, and his petition should have been denied. 

DISPOSITION

The trial court‟s order dated April 20, 2015 is reversed. 

CERTIFIED FOR PUBLICATION

BIGELOW, P.J.

We concur:

RUBIN, J. 

GRIMES, J.