Filed 11/26/19

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN CHRISTOPHER JENNINGS,

Defendant and Appellant.

 D074352

 (Super. Ct. No. SCD271876)

APPEAL from a judgment of the Superior Court of San Diego County, Michael S. 

Groch, Judge. Affirmed in part, reversed in part and remanded.

John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Marvin E. 

Mizell and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
2

Brian Christopher Jennings appeals a judgment following his jury conviction on 

four counts of burglary (Pen. Code, § 459)1 and one count of attempted burglary (§§ 664, 

459). Jennings challenges only his count 3 burglary conviction, which offense involved 

his alleged entry into a commercial establishment with intent to commit larceny while 

that establishment was open during regular business hours. Proposition 47, enacted in 

2014, created a new misdemeanor offense of "shoplifting," as set forth in section 459.5, 

subdivision (a), providing: "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. . . ."

On appeal, Jennings contends that because the new section 459.5 shoplifting 

offense was "carved out" of the general section 459 burglary offense, the prosecution was 

required, in the circumstances of this case, to prove that he intended to take property with 

a value exceeding $950. He further contends that because there is insufficient evidence

to support a finding that he intended to take property with a value exceeding $950, his 

count 3 burglary conviction must be reversed. Alternatively, he contends the trial court 

prejudicially erred by not sua sponte instructing the jury on the prosecution's duty to 

prove beyond a reasonable doubt the elements of burglary, including proof that he 

 

1 All statutory references are to the Penal Code unless otherwise specified.
3

intended to take property with a value exceeding $950. In his supplemental letter brief, 

he argues that newly enacted Senate Bill No. 136, which amended section 667.5, 

subdivision (b), to limit its prior prison term enhancement to only prior prison terms for 

sexually violent offenses, should be applied retroactively to his case pursuant to In re 

Estrada (1965) 63 Cal.2d 740 (Estrada) and therefore his one-year prior prison term 

enhancement under section 667.5, subdivision (b), should be stricken.

As discussed below, we conclude that Proposition 47 changed the definition of 

burglary to exclude from that offense an entry of a commercial establishment with intent 

to commit larceny of property with a value of $950 or less while that establishment is 

open during regular business hours, which conduct now constitutes the misdemeanor 

offense of shoplifting under section 459.5. We conclude there is insufficient evidence to 

support a finding that Jennings intended to take property with a value exceeding $950 

when he entered the commercial establishment in count 3. We further conclude that the 

trial court prejudicially erred by not instructing sua sponte on the $950 property value 

requirement for the count 3 burglary charge. Finally, we agree Senate Bill No. 136 

applies retroactively to Jennings's case pursuant to Estrada and therefore reverse the 

court's imposition and execution of a consecutive one-year section 667.5, subdivision (b) 

prior prison term enhancement. Accordingly, we reverse his count 3 burglary conviction 

and one-year section 667.5, subdivision (b) prior prison term enhancement and remand 

for resentencing.
4

FACTUAL AND PROCEDURAL BACKGROUND

An amended information charged Jennings with five counts of burglary (§ 459, 

counts 1 through 5) and one count of attempted burglary (§§ 664, 459, count 6). The 

amended information also alleged that Jennings: (1) was ineligible for probation pursuant 

to section 1203, subdivision (e)(4); (2) had served five prior prison terms within the 

meaning of sections 667.5, subdivision (b), and 668; (3) had been convicted of a serious 

felony within the meaning of sections 667, subdivision (a)(1), 668, and 1192.7, 

subdivision (c); and (4) had been convicted of a serious or violent felony within the 

meaning of sections 667, subdivisions (b) through (i), 668, and 1170.12.

Jennings waived his right to counsel and represented himself at trial. Prior to trial, 

he admitted the truth of the prior conviction allegations.

Count 2.2 At trial, the prosecution presented evidence showing that on December 

24, 2016, Jennings committed a burglary of the office of Planck Aero Systems (count 2). 

Jennings and a male accomplice took two high-end commercial drones and their two hard 

plastic "Pelican" carrying cases from the office. One drone had a hardware value of 

about $2,000 and the second drone had a hardware value of about $3,000 to $5,000. 

Their retail prices were between $19,000 and $25,000 each.

Count 3. The prosecution also presented evidence showing that on January 6, 

2017, Jennings entered the Discount Hobby Warehouse in Kearny Mesa with a drone. 

The store sold radio-controlled (RC) cars, helicopters, and drones. John Weaver, the 

 

2 For purposes of disposing of this appeal, we need discuss only the evidence 

regarding the alleged burglaries in counts 2 and 3.
5

store's owner, testified that Jennings asked him whether he could trade the drone for an 

RC car or truck. However, Weaver was not interested in the drone and Jennings left the 

store without any of the store's merchandise.

In his defense, Jennings testified that he knew the drone was stolen when he took 

the drone to the hobby store. His intent was to get rid of the drone by trading it for "a 

small RC or something for my neighbor," explaining that his neighbor had four children.

Verdict and sentencing. The jury found Jennings guilty on counts 2 through 6. 

Because the jury was unable to reach a verdict on count 1, the court declared a mistrial 

on, and later dismissed, that count. The court sentenced him to a four-year prison term 

for his count 2 burglary, consecutive 16-month terms for each of his other burglary 

convictions (counts 3, 4, and 5), a consecutive eight-month term for his count 6 attempted 

burglary conviction, and a consecutive one-year term for one of the prior prison term 

enhancements, for a total prison term of nine years eight months.3 Jennings timely filed 

a notice of appeal. On August 2, 2019, we requested supplemental letter briefs by the 

parties on the impact of In re E.P. (2019) 35 Cal.App.5th 792 (E.P.), which opinion was 

issued after the parties' briefs were filed in this case. At oral argument on October 18, 

2019, we requested supplemental letter briefs to be filed by the parties within 30 days on 

the application to this case of Senate Bill No. 136, which was enacted on October 8, 

2019, after the parties' briefs were filed in this case.

 

3 The court struck the punishment for the remaining four prior prison term 

enhancements.
6

DISCUSSION

I

Proposition 47 and New Crime of Shoplifting

In November 2014, "the electorate passed initiative measure Proposition 47, 

known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for 

certain theft and drug offenses by amending existing statutes. [Citation.] The Act also 

added several new provisions, including . . . section 459.5, which created the crime of 

shoplifting." (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).) "Proposition 

47 changed the law by defining a new crime of misdemeanor shoplifting and, in effect, 

'carving out' this 'lesser crime' from the 'preexisting felony' [of burglary]." (People v. 

Colbert (2019) 6 Cal.5th 596, 602 (Colbert), quoting People v. Martinez (2018) 4 Cal.5th 

647, 651.) "Through its various provisions, Proposition 47 made clear that certain types 

of criminal conduct once punishable as felonies now constitute only misdemeanors." 

(Martinez, at p. 651.) The Legislative Analyst explained in the Proposition 47 voter 

pamphlet: "Under current law, shoplifting property worth $950 or less (a type of petty 

theft) is often a misdemeanor. However, such crimes can also be charged as burglary, 

which is a wobbler. Under [Proposition 47], shoplifting property worth $950 or less 

would always be a misdemeanor and could not be charged as burglary." (Voter 

Information Guide, Gen. Elect. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 

35, quoted in Gonzales, at pp. 869-870.) Therefore, section 459.5 shoplifting is " 'always' 

. . . classified as [a] misdemeanor[] when the value of property [is] $950 or less." 

(Gonzales, at p. 870.)
7

New section 459.5, enacted by Proposition 47, provides:

"(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."

The new misdemeanor crime of shoplifting "covers conduct that previously would have 

been classified as a burglary." (E.P., supra, 35 Cal.App.5th at p. 797.)

Section 459 defines the offense of burglary, providing in pertinent part that a 

"person who enters any . . . store . . . with the intent to commit grand or petit larceny or 

any felony is guilty of burglary." However, on its enactment in 2014, "section 459.5 

amended section 459 to exclude certain wrongful conduct which previously was second 

degree burglary." (E.P., supra, 35 Cal.App.5th at p. 798.) Therefore, a defendant now 

cannot "simultaneously commit shoplifting and second degree burglary." (E.P., at p. 

798.)

E.P. stated: "Because a person cannot commit burglary if he actually committed 

shoplifting, a prosecutor who wishes to convict a defendant of burglary must prove the 

defendant did not commit shoplifting. [Citations.] Evidence the defendant committed 

shoplifting disproves the elements of the charged commercial burglary. Under these 

circumstances, the court must instruct the jury the prosecution has the burden to disprove 

the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction." 
8

(E.P., supra, 35 Cal.App.5th at p. 798.) Alternatively stated, to prove that a defendant 

committed section 459 burglary based on a theory of intent to commit larceny when 

entering a commercial establishment that is open during regular business hours, "the 

prosecution [has] the burden of proving beyond a reasonable doubt that [the defendant] 

did not commit shoplifting." (Id. at p. 799.)

II

Insufficient Evidence to Support Count 3 Burglary Conviction

Jennings contends the prosecution was required, in the circumstances of this case, 

to prove that he intended to take property with a value that exceeded $950 to prove his 

guilt on the count 3 burglary charge. He further contends that the prosecution did not 

meet that burden of proof (i.e., there is insufficient evidence to support a finding that he 

intended to take property with a value exceeding $950) and therefore his count 3 burglary 

conviction must be reversed. We agree.

A

When a conviction is challenged on appeal for insufficient evidence to support it, 

we apply the substantial evidence standard of review. (People v. Vines (2011) 51 Cal.4th 

830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we review the 

whole record in the light most favorable to the judgment to determine whether there is 

substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at p. 578.) 

Substantial evidence is evidence that is reasonable, credible, and of solid value such that 

a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People 

v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We do not reweigh the evidence, resolve 
9

conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran

(2002) 103 Cal.App.4th 8, 13.)

B

Contrary to the People's assertion, the language and legislative intent of section 

459.5 and the cases interpreting that statute support Jennings's assertion that section 

459.5 shoplifting is a separate and distinct offense from section 459 burglary. In defining 

the new offense of shoplifting, section 459.5, subdivision (a) begins with the introductory 

phrase "[n]otwithstanding [s]ection 459," thereby expressly excluding its shoplifting 

offense from the section 459 offense of burglary. Section 459.5, subdivision (a) further 

provides: "Any other entry into a commercial establishment with intent to commit larceny 

is burglary." (Italics added.) If shoplifting and burglary were coextensive offenses, that 

statutory language would be superfluous and redundant. (E.P., supra, 35 Cal.App.5th at 

p. 798.) Whenever reasonably possible, we must interpret statutes to avoid redundancy 

and give significance to each word and phrase. (Pacific Legal Foundation v. 

Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114.)

Proposition 47's voter pamphlet expressed the intent that under new section 459.5, 

"shoplifting property worth $950 or less would always be a misdemeanor and could not 

be charged as burglary." (Voter Information Guide, supra, analysis of Prop. 47 by Legis. 

Analyst, p. 35.) Colbert concluded that section 459.5 "in effect, 'carv[ed] out' [the] 'lesser 

crime' [of shoplifting] from the 'preexisting felony' [of burglary]." (Colbert, supra, 6 

Cal.5th at p. 602.) Therefore, conduct that violates section 459.5 always constitutes 

misdemeanor shoplifting and cannot be punished as section 459 felony burglary. (People 
10

v. Martinez, supra, 4 Cal.5th at p. 651; Gonzales, supra, 2 Cal.5th at p. 870; E.P., supra, 

35 Cal.App.5th at p. 797.) Colbert stated: "[T]he whole point of section 459.5 is to 

redefine a class of burglary offenses as shoplifting." (Colbert, at p. 606.) Accordingly, 

contrary to the People's assertion, a defendant now cannot "simultaneously commit 

shoplifting and second degree burglary." (E.P., at p. 798.)

Furthermore, because section 459.5 shoplifting and section 459 burglary are 

separate and distinct offenses, when the prosecution has charged a defendant with section 

459 burglary in circumstances involving an alleged entry of a commercial establishment 

with intent to commit larceny, the prosecution not only has the burden to prove each of 

the elements of section 459 burglary, but it also has the burden to disprove that the 

defendant committed section 459.5 shoplifting. (E.P., supra, 35 Cal.App.5th at p. 799.) 

In particular, in such cases, the prosecutor must prove either: (1) the defendant did not 

enter the commercial establishment when it was open during regular business hours; or 

(2) the value of the property taken or intended to be taken exceeded $950. (§ 459.5, 

subd. (a); E.P., at p. 801 ["the prosecution could have negated a finding of shoplifting by 

proving either that the stolen property was worth more than $950 or that [the defendant] 

did not enter the locker room when it was 'open during regular business hours' "].) As 

Jennings asserts, section 459.5, in effect, made the value of the property that he allegedly 

intended to take an element of section 459 burglary in this case and therefore the 

prosecution was required to prove beyond a reasonable doubt that he intended to take 
11

property worth more than $950 when he entered the store.4 (Cf. People v. Gutierrez

(2018) 20 Cal.App.5th 847, 855 ["to obtain a felony conviction for vehicle theft [under 

Veh. Code, § 10851], the People were required to prove as an element of the crime that 

the rental car he took was worth more than $950 [as required by § 490.2, subd. (a), 

enacted by Proposition 47]."].)

C

Jennings asserts that because the prosecution did not present any evidence 

showing that the value of the property he allegedly intended to take on his entry into the 

hobby store exceeded $950, his count 3 burglary conviction must be reversed for 

insufficiency of evidence to support it. We agree. The People have not cited, and our 

review of the record has not revealed, any evidence that would support a reasonable 

inference Jennings intended to take property worth more than $950. Weaver, the store's 

owner, testified that he thought the man who entered his store (who Jennings later 

admitted was him) "wanted to get rid of [the drone]." Weaver stated that Jennings "sort 

of got the impression I probably didn't want to buy [the drone], but he did mention that 

maybe he could trade [it] for a model truck. You know, we sell radio-controlled trucks 

also. But, again, I wasn't interested in [the drone]." Weaver later testified that Jennings 

"mentioned that . . . maybe we could trade [the drone] for an RC car or a truck, actually." 

Weaver elaborated: "The only thing I recall was that he was interested in an RC truck. I 

 

4 Jennings does not dispute that he entered the hobby store while it was open during 

regular business hours.
12

think he wanted to trade [the drone] for an RC truck." Weaver also testified that Jennings 

did not seem familiar with the kind of drone model he had.

Jennings testified that he knew the drone was stolen and "just want[ed] to get rid 

of it." He testified that at the time "[his] thought was, when I went there [i.e., to the 

hobby store], if I could get something for -- because my intent was to get a small RC or 

something for my neighbor. Because I have a neighbor that has four kids. I wanted to 

get something for them to play with." Jennings admitted he was going to take the stolen 

drone "to get an RC car for [his] neighbor." However, he did not obtain an RC car for his 

neighbor and left the store with the drone. Jennings testified that a couple of days later, 

he traded the two drones for a car someone was trying to sell on Facebook. He testified 

that before the trade he did not know if the two drones "were valuable enough. I didn't 

know what they were worth." After the car owner "looked at them and . . . wanted them," 

the car owner agreed to trade the car for the drones.

The evidence discussed above does not support a reasonable inference that 

Jennings intended to take property worth more than $950 when he entered the hobby 

store. First, Weaver did not testify that Jennings was interested in a specific RC car or 

truck, much less one that had a stated price exceeding $950. In fact, Weaver did not 

testify regarding the price range of the RC cars and trucks that his store had for sale at the 

time. Absent any evidence that Jennings was interested in trading the drone for a specific 

RC car or truck with a price in excess of $950, there is insufficient evidence to support a 

reasonable inference that he intended to take property worth more than $950 when he 

entered the store with the drone.
13

Second, contrary to the People's assertion, the testimony by Joshua Wells, Planck 

Aero Systems's chief executive officer, regarding the retail prices of the two drones (i.e., 

between $19,000 and $25,000 each) or their hardware values (between $2,000 and 

$5,000) without their expensive installed software, did not show either that Jennings 

knew the drones' true value or that he intended to trade one of the drones for an RC car or 

truck worth more than $950. In fact, the value of the property Jennings intended to trade 

for an RC car or truck (i.e., the drone) was essentially irrelevant to the issue of the value 

of the property that he intended to trade it for (i.e., an RC car or truck).5 (Cf. People v. 

Pak (2016) 3 Cal.App.5th 1111, 1120 ["[C]onsidering the value of stolen goods brought 

into a pawn shop is not consistent with the plain language of the shoplifting statute. Such 

property is neither 'taken' nor 'intended to be taken' from the victim pawn shop. It is 

already in the defendant's possession. . . . Under the circumstances of this case, the only 

property that possibly could be 'taken' or 'intended to be taken' was money from the pawn 

shop. Once that money was taken, the relevant value for purposes of the shoplifting 

statute became the amount [the defendant] took."].) Therefore, although there was 

evidence showing the true value of each drone exceeded $950, that evidence did not 

show that Jennings intended to trade the drone for an RC car or truck worth more than 

$950. (Ibid.)

 

5 Likewise, contrary to the People's assertion, Jennings's statements to a police 

detective made five months after the alleged burglary that he knew the drones were "high 

end" and "custom-made" do not show that Jennings intended to trade one of the drones 

for property worth more than $950.
14

Likewise, contrary to the People's assertion, evidence of Jennings's subsequent 

trade of the two drones for a car did not support a reasonable inference that when he 

previously entered the hobby store he intended to trade one of the drones for an RC car or 

truck worth more than $950. Neither the value of the two drones, as presumably shown 

by their market equivalency in a trade for the car, nor the value of that car shows that 

Jennings intended to trade one of the drones for an RC car or truck worth more than $950 

when he entered the hobby store a couple of days earlier. (Cf. People v. Pak, supra, 3 

Cal.App.5th at p. 1120.) In any event, there was no testimony showing the market value 

of the car or how that value would be divided between the two drones or, in particular, 

the value attributed to the drone Jennings sought to trade for an RC car or truck. 

Furthermore, Jennings testified that before the trade for the car he did not know if the two 

drones "were valuable enough. I didn't know what they were worth."

Therefore, we conclude there is insufficient evidence to support a finding that 

when Jennings entered the hobby store he intended to trade the drone for property (i.e., an 

RC car or truck) worth more than $950.6 (People v. Vines, supra, 51 Cal.4th at p. 869 

[substantial evidence standard of review]; People v. Killebrew, supra, 103 Cal.App.4th at 

 

6 To the extent the People argue the prosecution had discretion whether to charge 

count 3 as a section 459 burglary or a section 459.5 shoplifting offense, that argument is 

irrelevant to the questions of whether the $950 value of the property Jennings allegedly 

intended to take is an element of the count 3 burglary charged in this case and whether 

there is substantial evidence to support a finding that that element was proved beyond a 

reasonable doubt. In any event, because the prosecution clearly lacked any evidence to 

prove that value element, it should have exercised its discretion to charge count 3 as a 

section 459.5 shoplifting offense and not a section 459 burglary. (People v. Birks (1998) 

19 Cal.4th 108, 134 [regarding prosecution's charging discretion generally].)
15

p. 660 [same].) Because the prosecution did not prove that element of burglary and 

thereby disprove that Jennings committed section 459.5 shoplifting in the circumstances 

of this case, his count 3 burglary conviction must be reversed.

III

Jury Instruction Error

Jennings alternatively contends that if his count 3 burglary conviction is not 

reversed for insufficiency of evidence to support it, the trial court prejudicially erred by 

not instructing sua sponte on count 3 burglary that the prosecution had the burden to 

prove he intended to take property worth more than $950 when he entered the hobby 

store. Although we are not required to address this contention in light of our conclusion 

above that there is insufficient evidence to support Jennings's count 3 burglary 

conviction, we nevertheless elect to address this issue to provide trial courts with 

guidance in future similar cases.

A

The trial court instructed the jury with the standard CALCRIM No. 1700 

instruction on burglary, as follows:

"The defendant is charged in Counts 1 through 5 with burglary, and 

count 6 with attempted burglary, in violation of Penal Code section 

459.

"To prove that the defendant is guilty of burglary, the People must 

prove that: [¶] 1. The defendant entered a building, room within a 

building, or structure; [¶] AND [¶] 2. When he entered a building, 

room within a building, or structure, he intended to commit theft.

"To decide whether the defendant intended to commit theft, please 

refer to the separate instructions that I will give you on the crime.
16

"A burglary was committed if the defendant entered with the intent 

to commit theft. The defendant does not need to have actually 

committed theft as long as he entered with the intent to do so. The 

People do not have to prove that the defendant actually committed 

theft."

However, the court's instruction on count 3 burglary did not include the additional 

language recommended when the evidence in a case supports "a defense theory" that the 

crime was instead section 459.5 shoplifting. (Com. to CALCRIM No. 1700.) That 

omitted language would have added one of the following elements, or proof 

requirements, to the two general elements in the standard CALCRIM No. 1700 

instruction:

"[AND] [¶] [3A. The value of the property taken or intended to be 

taken was more than $950](;/.)] [¶] [OR] [3B. The structure that the 

defendant entered was a noncommercial establishment(;/.)] [¶] [OR] 

[3C. The structure was a commercial establishment that the 

defendant entered during non-business hours.]" (CALCRIM No. 

1700, italics added.)

In the circumstances of this case, the italicized language in paragraph 3A, quoted above, 

would have been the appropriate language for the trial court to add to correctly instruct 

the jury that the prosecution had the burden to prove the value of the property Jennings 

intended to take when he entered the hobby store exceeded $950.

B

"The trial court has a sua sponte duty to instruct the jury on the essential elements 

of the charged offense. [Citation.] [Not instructing on the elements of a charged offense] 

is, indeed, very serious constitutional error because it threatens the right to a jury trial that 

both the United States and California Constitutions guarantee. (U.S. Const., 6th Amend.; 
17

Cal. Const., art. I, § 16.) All criminal defendants have the right to 'a jury determination 

that the defendant is guilty of every element of the crime with which he is charged, 

beyond a reasonable doubt." (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).)

Furthermore, "[i]t is settled that, even in the absence of a request, a trial court must 

instruct on general principles of law that are commonly or closely and openly connected 

to the facts before the court and that are necessary for the jury's understanding of the 

case. [Citations.] The trial court is [also] charged with instructing upon every theory of 

the case supported by substantial evidence, including defenses that are not inconsistent 

with the defendant's theory of the case." (People v. Montoya (1994) 7 Cal.4th 1027, 1047 

(Montoya).) Alternatively stated, "a trial court's duty to instruct, sua sponte, or on its own 

initiative, on particular defenses is more limited [than its duty to instruct on lesser 

included offenses], arising 'only if it appears that the defendant is relying on such a 

defense, or if there is substantial evidence supportive of such a defense and the defense is 

not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12 

Cal.4th 186, 195, italics added (Barton).)

C

Jennings asserts that because the prosecution had the burden to disprove that he 

committed shoplifting to prove that he committed burglary in the circumstances of this 

case, the trial court erred by not sua sponte instructing with a modified version of 

CALCRIM No. 1700 that would have included paragraph 3A, quoted above, instructing 

the jury that the prosecution had the burden to prove beyond a reasonable doubt that the 
18

value of the property he intended to take when he entered the commercial establishment 

(i.e., the hobby store) was more than $950. We agree.

As quoted in part I above, E.P. concluded: "Evidence the defendant committed 

shoplifting disproves the elements of the charged commercial burglary. Under these 

circumstances, the court must instruct the jury the prosecution has the burden to disprove 

the element(s) of shoplifting beyond a reasonable doubt to secure a burglary conviction." 

(E.P., supra, 35 Cal.App.5th at p. 798.) Alternatively stated, to prove that a defendant 

committed section 459 burglary based on a theory of intent to commit larceny, "the 

prosecution [has] the burden of proving beyond a reasonable doubt that [the defendant] 

did not commit shoplifting." (Id. at p. 799.)

Furthermore, as we stated in part II(B) above, because section 459.5 shoplifting 

and section 459 burglary are separate and distinct offenses, when the prosecution has 

charged a defendant with section 459 burglary in circumstances involving entry of a 

commercial establishment with intent to commit larceny, the prosecution not only has the 

burden to prove each of the elements of section 459 burglary, but it also has the burden to 

disprove that the defendant committed section 459.5 shoplifting. (E.P., supra, 35 

Cal.App.5th at p. 799.) In particular, in such cases, the prosecutor must prove either: (1) 

the defendant did not enter the commercial establishment when it was open during 

regular business hours; or (2) the value of the property taken or intended to be taken 

exceeded $950. (§ 459.5, subd. (a); E.P., at p. 801.) Accordingly, section 459.5, in 

effect, made the value of the property Jennings allegedly intended to take an element of 

section 459 burglary in this case and therefore the prosecution was required to prove 
19

beyond a reasonable doubt that he intended to take property worth more than $950 when 

he entered the store.

Because we have concluded a finding that the value of the property Jennings 

intended to take when he entered the hobby store exceeded $950 is an element of section 

459 burglary in the circumstances of this case, the court was required to sua sponte 

instruct on that element, along with the other elements of burglary. (Merritt, supra, 2

Cal.5th at p. 824.) In any event, assuming arguendo that the value of the property 

Jennings intended to take is not an element of the charged burglary offense, the court was 

nevertheless required to sua sponte instruct on that factual question as a "general 

principle[] of law that [was] commonly or closely and openly connected to the facts 

before the court and that [was] necessary for the jury's understanding of the case." 

(Montoya, supra, 7 Cal.4th at p. 1047.) Furthermore, to the extent the $950 value of the 

property Jennings intended to take was merely a defense to the burglary charge, the court 

nevertheless had a duty to sua sponte instruct on that shoplifting defense theory because it 

was supported by substantial evidence and not inconsistent with Jennings's theory of the 

case. (Ibid.; Barton, supra, 12 Cal.4th at p. 195; cf. Mullaney v. Wilbur (1975) 421 U.S. 

684, 704 ["Due Process Clause requires the prosecution to prove beyond a reasonable 

doubt the absence of the heat of passion on sudden provocation"]; People v. Banks (1976) 

67 Cal.App.3d 379, 384 [because "prosecution must prove beyond a reasonable doubt the 

absence of justification, herein self-defense," court erred by giving contrary instruction].) 

Because, as we concluded above, there is no substantial evidence to support a finding that 

Jennings intended to trade the drone for an RC car or truck worth more than $950, there 
20

necessarily is substantial evidence to support a shoplifting theory (i.e., that the property 

he intended to take was worth $950 or less). Also, the shoplifting theory was not 

inconsistent with any defense theory presented by Jennings at trial. Based on our review 

of the record, we conclude the shoplifting theory was consistent with Jennings's defense. 

Therefore, under any of the above instructional principles, the trial court had a duty to sua 

sponte instruct that the prosecution had the duty to prove beyond a reasonable doubt that 

when Jennings entered the commercial establishment (i.e., the hobby store) he intended 

to take property worth more than $950. Contrary to the People's assertion, because the 

trial court had a sua sponte duty to give that instruction, Jennings was not required to 

request that instruction and did not forfeit that instructional error by not requesting it. 

(Cf. People v. Mil (2012) 53 Cal.4th 400, 409 (Mil) ["[I]t is well settled that no objection 

is required to preserve a claim for appellate review that the jury instructions omitted an 

essential element of the charge."].)

D

We further conclude, as Jennings asserts, that the trial court's instructional error 

was prejudicial and requires reversal of his count 3 burglary conviction. "Not instructing 

on [the] elements of [an offense] is constitutional error." (Merritt, supra, 2 Cal.5th at p. 

824.) "[T]he omission of one or more elements of a charged offense . . . is amenable to 

review for harmless error under the state and federal Constitutions . . . ." (Mil, supra, 53 

Cal.4th at p. 415.) "A trial court's failure to instruct the jury on all of the essential 

elements of the charged offense is reviewed for harmless error according to the standard 

set out in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 
21

(Chapman)." (People v. Atkins (2019) 31 Cal.App.5th 963, 980-981 (Atkins).) Under the 

Chapman standard, an error is prejudicial and requires reversal of the conviction unless it 

appears "beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained." (Chapman, at p. 24.) Accordingly, the error "will be deemed harmless 

only in unusual circumstances, such as where each element was undisputed, the defense 

was not prevented from contesting any [or all] of the omitted elements, and

overwhelming evidence supports the omitted element." (Merritt, supra, 2 Cal.5th at p. 

828, italics added.) Alternatively stated, we must review the record to determine whether 

it contains evidence that could rationally lead to a contrary finding with respect to the 

omitted element. (Mil, at p. 417.)

Based on our review of the record in this case, we cannot conclude the court's 

instructional error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 

at p. 24.) As discussed above, there was no evidence presented on the value of the 

property (i.e., an RC car or truck) that Jennings allegedly intended to take on his entry 

into the hobby store. Therefore, there was no evidence, much less "overwhelming 

evidence," to support a finding that he intended to take property worth more than $950 

when he entered the store. (Merritt, supra, 2 Cal.5th at p. 828.) Likewise, because 

neither the prosecution nor the court informed Jennings that the property's $950 value 

was an element of the burglary alleged in count 3, he presumably was not, as a selfrepresented defendant, aware of that element. Therefore, that element cannot be deemed 

to have been "undisputed" by him, nor can we conclude he "was not prevented from 

contesting [that] omitted element[]." (Ibid.) Furthermore, because there was no evidence 
22

that the property Jennings allegedly intended to take on his entry into the store was worth 

more than $950, the record would support a rational finding that the omitted element was 

not shown beyond a reasonable doubt (i.e., a finding that the property was worth $950 or 

less). (Mil, supra, 53 Cal.4th at p. 417.) Accordingly, the court's error in omitting an 

essential element on the burglary charged in count 3 was not harmless beyond a 

reasonable doubt and therefore requires reversal of Jennings's conviction on count 3. 

(Chapman, at p. 24; Atkins, supra, 31 Cal.App.5th at pp. 980-981.)

Assuming arguendo that the court's instructional error did not involve the omission 

of an element of the charged burglary offense and instead involved only a failure to sua 

sponte instruct on a general principle of law commonly or closely and openly connected 

to the facts before the court and necessary for the jury's understanding of the case 

(Montoya, supra, 7 Cal.4th at p. 1047) or a failure to sua sponte instruct on the 

shoplifting defense theory (ibid.), we nevertheless conclude that error was prejudicial 

under either the Chapman standard, discussed above, or under the more lenient state 

standard for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836. Under 

the Watson standard, an error is deemed harmless if it is not reasonably probable the 

defendant would have obtained a more favorable result in the absence of the error. (Ibid.) 

However, because our review of the record shows there is no evidence to support a 

reasonable finding that the value of the property Jennings allegedly intended to take on 

his entry into the hobby store was worth more than $950, the court's error in omitting that 

general principle of law or defense theory from its instructions on count 3 burglary was 

prejudicial under the Watson standard (i.e., it is reasonably probable he would have 
23

obtained a more favorable verdict on count 3 had the court correctly instructed on that 

count). (Watson, at p. 836.) Furthermore, because of the absence of evidence that the 

property he allegedly intended to take (i.e., an RC car or truck) was worth more than 

$950, we likewise conclude that instructional error was also prejudicial under the 

Chapman standard. (Chapman, supra, 386 U.S. at p. 24.) Accordingly, regardless of the 

classification of the court's instructional error, that error was prejudicial under both the 

Chapman and Watson standards and therefore Jennings's conviction on count 3 must be 

reversed. (Chapman, at p. 24; Watson, at p. 836.) 

IV

Senate Bill No. 136

In his supplemental letter brief, Jennings contends, and the People agree, that 

Senate Bill No. 136, which was enacted on October 8, 2019, and becomes effective on 

January 1, 2020, applies retroactively to his case pursuant to the Estrada rule. We agree.

A

Prior to January 1, 2020, section 667.5, subdivision (b) required trial courts to 

impose a one-year sentence enhancement for each true finding on an allegation the 

defendant had served a separate prior prison term and had not remained free of custody 

for at least five years. (§ 667.5, subd. (b).) Courts nevertheless had discretion to strike 

that enhancement pursuant to section 1385, subdivision (a). (People v. Bradley (1998) 64 

Cal.App.4th 386, 392-395.) Effective as of January 1, 2020, Senate Bill No. 136 amends 

section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior

prison terms for sexually violent offenses, as defined in Welfare and Institutions Code 
24

section 6600, subdivision (b). (Sen. Bill No. 136, § 1; Cal. Const., art. IV, § 8, subd. (c); 

Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute 

enacted at regular session of Legislature generally becomes effective on January 1 of year 

following its enactment].)

B

In Estrada, the California Supreme Court held that a statute that reduces the 

punishment for an offense will generally apply retroactively to any case in which the 

judgment is not yet final before the effective date of the statute. (Estrada, supra, 63 

Cal.2d at pp. 742, 744-745.) Estrada stated: "When the Legislature amends a statute so 

as to lessen the punishment it has obviously expressly determined that its former penalty 

was too severe and that a lighter punishment is proper as punishment for the commission 

of the prohibited act. It is an inevitable inference that the Legislature must have intended 

that the new statute imposing the new lighter penalty now deemed to be sufficient should 

apply to every case to which it constitutionally could apply. The amendatory act 

imposing the lighter punishment can be applied constitutionally to acts committed before 

its passage provided the judgment convicting the defendant of the act is not final." (Id. at 

p. 745.) Estrada stated: "[W]here the amendatory statute mitigates punishment and there 

is no saving clause, the rule is that the amendment will operate retroactively so that the 

lighter punishment is imposed." (Estrada, at p. 748; see People v. Hajek and Vo (2014) 

58 Cal.4th 1144, 1195.) "Estrada represents 'an important, contextually specific 

qualification to the ordinary presumption that statutes operate prospectively: When the 

Legislature has amended a statute to reduce the punishment for a particular criminal 
25

offense, we will assume, absent evidence to the contrary, that the Legislature intended the 

amended statute to apply to all defendants whose judgments are not yet final on the 

statute's operative date.' " (People v. Hajek and Vo, at pp. 1195-1196.) The Estrada rule 

also applies to statutory amendments reducing the penalty for, or allowing a court to 

strike, an enhancement. (Cf. People v. Jones (2019) 32 Cal.App.5th 267, 272-273; 

People v. Valenzuela (2018) 23 Cal.App.5th 82, 87-88; People v. Chavez (2018) 22 

Cal.App.5th 663, 708-712.) For purposes of the Estrada rule, a judgment is not final so 

long as courts may provide a remedy on direct review. (In re Pine (1977) 66 Cal.App.3d 

593, 594.)

C

By eliminating section 667.5, subdivision (b) enhancements for all prior prison 

terms except those for sexually violent offenses, the Legislature clearly expressed its 

intent in Senate Bill No. 136 to reduce or mitigate the punishment for prior prison terms 

for offenses other than sexually violent offenses. (Cf. Estrada, supra, 63 Cal.2d at pp. 

742, 744-745.) Therefore, we conclude, and the parties agree, that under the Estrada

rule, Senate Bill No. 136's amendment to section 667.5, subdivision (b) applies 

retroactively to all cases not yet final as of its January 1, 2020, effective date. Because 

Jennings's case will not be final as of that date, he is entitled to the ameliorative benefit of 

Senate Bill No. 136's amendment to section 667.5, subdivision (b). Therefore, we 

reverse the one-year section 667.5, subdivision (b) prior prison term enhancement, which 

the court imposed and executed for a prior prison term for an offense other than a 

sexually violent offense.
26

Because we reverse Jennings's count 3 conviction and his one-year section 667.5, 

subdivision (b) prior prison term enhancement, we remand the matter for resentencing to 

allow the court to exercise its sentencing discretion in light of the changed circumstances. 

(Cf. People v. Buycks (2018) 5 Cal.5th 857, 893.) We take no position on how the court 

should exercise its discretion on remand.

DISPOSITION

The defendant's burglary conviction on count 3 and one-year section 667.5, 

subdivision (b), prior prison term enhancement are reversed. In all other respects, the 

judgment is affirmed. The matter is remanded for resentencing consistent with this 

opinion.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.