Filed 12/11/15 P. v. Bell CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN DUANE BELL,

Defendant and Appellant.

 D068256

 (Super. Ct. No. SCD254785)

APPEAL from an order of the Superior Court of San Diego County, Charles R. 

Gill, Judge. Affirmed.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christine 

Levingston Bergman and Kristen Kinnaird Chenelia, Deputy Attorneys General, for 

Plaintiff and Respondent.
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In March 2014, Juan Duane Bell entered guilty pleas to five felony counts and one 

misdemeanor. Specifically, Bell pled guilty to identity theft (Pen. Code,1 § 530.5, 

subd. (a)); burglary (§ 459); forgery (§ 476); possession of forged items (§ 475, 

subd. (a)); forgery-possession of blank/unfinished paper (§ 475, subd. (b)); and 

misdemeanor identity theft (§ 530.5, subd. (c)(1)). Bell also admitted three prison priors 

(§ 667.5, subd. (b)) and one serious/violent felony prior conviction (§ 667, subds. (b)-(i)).

The trial court struck the serious/violent felony prior conviction and imposed a 

two-year four-month prison sentence. 

Bell thereafter filed a petition to recall and resentence the burglary conviction 

pursuant to Proposition 47 (§ 1170.18). He contended his conviction should be reduced 

to shoplifting under section 459.5, which was created by Proposition 47, becoming 

effective in November 2014. The People filed opposition and the court, after a hearing,

denied the petition. 

Bell appeals. He contends the trial court improperly held that he had the burden to 

show he was eligible for resentencing. Bell argues he only had to state he was eligible 

and thereafter, the prosecution would have to prove, beyond a reasonable doubt, that he 

had committed a felony. Bell recognizes that case law from this court has rejected his 

position. He argues the controlling case was wrongly decided.

Based on our review of the record, Bell was not eligible for resentencing, 

regardless of how we allocate the burden of proof.

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
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STATEMENT OF FACTS

The underlying convictions were the result of a guilty plea. All that is before us of 

a factual nature are Bell's statement at the change of plea, and the probation report from 

the original sentencing.

In the change of plea form Bell stated, under oath:

"[I] unlawfully obtained personal identifying information for two 

people and used for [sic] an unlawful purpose. I entered a building 

with the intent to commit theft. I unlawfully attempted to pass a 

[sic] altered check. I unlawfully forged a check, unlawfully 

possessed a blank check. I have 3 prison priors and a felony strike 

prior." 

The probation report indicates that Bell entered a grocery store. He attempted to 

pass a forged check for $1,528.68. Bell also took merchandise in the amount of $289.34. 

DISCUSSION

Bell's petition under section 1170.18 basically alleged he was eligible for 

resentencing because he entered the building to commit theft. Thus, he contended 

without reference to the facts that his conviction should be a misdemeanor in light of the 

newly created crime of shoplifting (§ 459.5) of an amount under $950. He complains 

that the trial court improperly placed the burden of proof on him to show eligibility. He 

further complains that the trial court considered the probation officer's report from the 

original sentencing.

A. Legal Principles

A person seeking resentencing under section 1170.18 must satisfy the criteria in 

subdivision (a). If the person satisfies the criteria the person shall have his or her 
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sentence recalled and resentenced to a misdemeanor, unless the court, in its discretion, 

determines that resentencing the petitioner would pose an unreasonable risk of danger to 

public safety. (§ 1170.18, subd. (b); T. W. v. Superior Court (2015) 236 

Cal.App.4th 646, 649, fn. 2 (T.W.).)

The newly created crime of 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 taken or intended to be taken does 

not exceed nine hundred fifty dollars ($950)." (§ 459.5.)

When a person files a petition for recall and resentencing of an offense covered by 

section 1170.18, the person must show he or she fits the criteria for resentencing. 

(§ 1170.18, subd. (b); T.W., supra, 236 Cal.App.4th at p. 649, fn. 2.)

In People v. Sherow (2015) 239 Cal.App.4th 875 (Sherow), this court addressed 

the appropriate allocation of burdens for section 1170.18 petitions. We said: "As an 

ordinary proposition: '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.' " 

(Sherow, supra, at p. 879; Vance v. Bizek (2014) 228 Cal.App.4th 1155, 1163, fn. 3; 

Evid. Code, § 500.)

We noted that the petition could certainly contain at least the petitioner'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." 

(Sherow, supra, 239 Cal.App.4th at p. 880.) The count at issue in the case is the burglary 

count. Burglary involves the unlawful entry accompanied by the intent to commit grand 
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or petit theft or any felony. (§ 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041; 

People v. Lawrence (2000) 24 Cal.4th 219, 232-233.) A person can be liable for burglary 

done with the intent to commit theft or a felony, regardless of whether the felony 

ultimately committed is different from that which was contemplated at the time of entry. 

In short, the relevant intent for burglary is the one which existed at the time of entry, not 

one which may have developed later. (Montoya, supra, at pp. 1041-1042.)

Finally, it is necessary to discuss the distinction between larceny and theft by false 

pretenses. Section 459.5 contemplates entry into a commercial establishment with the 

intent to commit larceny. As the courts have discussed, the crime of false pretenses is a 

form of theft. That crime involves a (1) false pretense or representation, (2) done with 

the intent to defraud and (3) the owner transferred the property to the defendant in 

reliance on the representation. (People v. Williams (2013) 57 Cal.4th 776, 787.) On the 

other hand, larceny is a trespassory taking and carrying away of property of another with 

the intent to steal. Asportation is not required for theft by false pretenses. (Id. at p. 788.)

B. Analysis

Central to Bell's contentions is the idea that the prosecution should have to prove 

noneligibility beyond a reasonable doubt. Thus he argues the trial court should be limited 

to the record of conviction as defined in People v. Guerrero (1988) 44 Cal.3d 343, a case 

involving proof of an alleged prior conviction in a criminal trial. Bell contends the court 

should not have reviewed the probation report, which was used by the court at the 

original sentencing several months earlier. We disagree with the basic premise of Bell's 

argument, as we did in Sherow, supra, 239 Cal.App.4th 875. The process contemplated 
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by section 1170.18, plainly contemplates that the petitioner will first show he or she fits 

the criteria for resentencing. (§ 1170.18, subd. (b); T.W., supra, 236 Cal.App.4th at 

p. 649, fn. 2.) Bell has not shown he is eligible for resentencing on the burglary count.

Even if we considered only the change of plea form, Bell would not be eligible for 

resentencing. In his plea he stated that he entered the store with at least two separate 

criminal intents. First, he intended to steal merchandise, thus an intent to commit theft by 

larceny. Second, he intended to pass a forged check, both the felonies of forgery and 

theft by false pretenses. (People v. Williams, supra, 57 Cal.4th at pp. 787-788.)

As we have discussed the intent required for burglary is an intent to commit theft, 

or any felony. Thus, at the time of entry, by Bell's own admission, his intent was not 

limited to larceny of merchandise. The entry with the intent expressed by Bell, is not 

"shoplifting" as defined in section 459.5.

Of course, we do not agree with Bell's position that we can only consider his plea 

statement. The trial court could reasonably consider the previous probation report. 

Section 1170.18 contemplates a resentencing. It is illogical to conclude that the trial 

court, considering resentencing, could not review the matters properly considered at the 

first sentencing. Our difference with Bell's position is that the petition for resentencing is 

not a trial de novo. The petitioner has been convicted and is now seeking relief based 

upon a law change after the conviction. The record of prior proceedings is not being used 

as part of the prosecutor's case to prove a prior conviction that has been pled in the 

information. We are satisfied the court properly considered the probation officer's report.
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The totality of the record demonstrates this burglary was not "shoplifting" within 

the meaning of section 459.5. The existence of an intent to commit the felonies of 

forgery and theft by false pretenses, in addition to the intent to steal goods by way of 

larceny, takes this case outside the scope of resentencing under section 1170.18.

DISPOSITION

The order denying recall and resentencing under section 1170.18 is affirmed.

HUFFMAN, J.

WE CONCUR:

O'ROURKE, J.

PRAGER, J.*

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.