Opinion
D070817
04-14-2017
THE PEOPLE, Plaintiff, Respondent and Cross-Appellant, v. TIMOTHY WAYNE SHEROW, Defendant and Appellant
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney for Plaintiff and Cross-appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF138991 APPEAL and cross-appeal from orders of the Superior Court of Riverside, Becky L. Dugan, Judge. Reversed and remanded for resentencing. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney for Plaintiff and Cross-appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.
In 2009, a jury convicted Timothy Wayne Sherow of nine counts of second degree burglary. (Pen. Code, § 459.) Sherow admitted a prior strike and eight prior prison terms. (§§ 667.5, subd. (b), 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced him to 19 years four months in prison. Sherow appealed. This court reversed four counts of second degree burglary for instructional error. The reversal did not affect Sherow's sentence. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1311-1312 (Sherow I).)
After the passage of Proposition 47, Sherow filed an inadequate petition for resentencing on the five remaining counts of second degree burglary. This court clarified that the petitioner has the burden of proof and affirmed the trial court's denial of Sherow's petition without prejudice. (People v. Sherow (2015) 239 Cal.App.4th 875, 881 (Sherow II).)
In 2015, Sherow filed a new petition for resentencing with supporting affidavits. He also filed, in another trial court, a petition for resentencing on several of his prior prison convictions. A trial court reduced several of Sherow's prior prison convictions to misdemeanors before the hearing on his petition for resentencing on the second degree burglary counts.
In June 2016, the trial court granted Sherow's request for resentencing on counts 1 and 2 (clothing thefts). The trial court denied his request to reduce counts 4, 5 and 6 (DVD thefts) to misdemeanors because the aggregate amount of loss from thefts by Sherow and his associates was more than $100,000. The trial court struck the sentencing enhancement on three of the prior prison terms, and resentenced Sherow to 13 years eight months in prison.
Sherow appeals from orders denying his petition to reduce three second degree felony burglary convictions to misdemeanors under section 1170.18.
The Riverside County District Attorney cross-appeals from orders striking three of Sherow's prison priors under section 667.5, subdivision (b).
We conclude that the trial court erred when it aggregated the amount of loss from charged and uncharged thefts, instead of considering the amount of loss from each felony separately. The People did not present any evidence to counter Sherow's claim that the value of the stolen property in each offense was $950 or less. Accordingly, section 1170.18, subdivision (b) requires the felony sentences to be recalled and the petitioner resentenced to misdemeanors. The reduction of all Sherow's felony convictions to misdemeanors renders moot the issue raised in the cross-appeal. We therefore reverse the order denying Sherow's petition for resentencing on counts 4, 5 and 6.
FACTUAL AND PROCEDURAL BACKGROUND
The early background of the case is set out in Sherow I, supra, 196 Cal.App.4th at pages 1300 through 1302:
"In approximately 2003, Sherow began engaging in transactions at the AAA Jewelry & Loan pawnshop in Riverside (the pawnshop), which was managed by Robert Stephen Mann. Sherow—always accompanied by a second person—would bring large quantities of DVD's to the pawnshop to sell. The DVD's were new and in the original shrink-wrap packaging.
Sherow I involved appeals by Sherow and his son, Timothy Wayne Sherow, Jr. The prior opinion refers to Sherow, Sr., and Sherow, Jr., to distinguish the two men. (Sherow I, supra, 196 Cal.App.4th at p. 1299.) Because the need to avoid such confusion is not present here, for readability, we have modified the language from the prior opinion from Sherow, Sr., to Sherow.
"In 2007, Detective Charles Payne of the Riverside Police Department became suspicious upon reviewing the pawnshop's records, which showed large transactions involving new DVD's. Detective Payne met with Mann, who showed him a storeroom containing 1,230 new boxed sets of DVD's, most of which Mann purchased from Sherow and his associates. Mann had received over $100,000 by reselling the new DVD's brought in by Sherow and his associates.
"On July 31, 2007, Detective Payne and Police Officer Daniel Cisneros conducted visual surveillance of Sherow. He was first observed with his sister selling 377 DVD's at the pawnshop for $754. Sherow then drove to a Ross store in Riverside, where Officer Cisneros observed him taking clothes off the rack, rolling them up, placing them in his pants and then leaving the store without purchasing the clothes. Officer Cisneros next followed Sherow to an AJWright store in Riverside where he witnessed Sherow steal clothes in the same manner. While Sherow was inside a third store, Officer Cisneros placed a tracking device on Sherow's car.
"The next day, August 1, 2007, Detective Payne used the tracking device to determine the movement of Sherow's car. Detective Payne determined that the car traveled to a Walmart store in Westminster at 8:46 a.m., a Walmart store in Corona at 9:39 a.m. and a Sam's Club store in Corona at 10:10 a.m. Later that day, Detective Payne observed Sherow meet his son Dominique in the parking lot of the pawnshop and hand over a large box of DVD's. Dominique went into the pawnshop with the DVD's and sold 259 DVD's for $518. Dominique emerged a short time later and pulled money out of his pocket, which he divided with Sherow.
"Detective Payne obtained surveillance videos from the Walmart store in Westminster, the Walmart store in Corona and the Sam's Club store in Corona for the time period that the tracking device indicated Sherow was in those stores on August 1, 2007. Detective Payne reviewed the videos and observed Sherow at each of the stores taking DVD's off the shelves and putting them down his pants.
"On August 18, 2007, Detective Payne conducted surveillance of Sherow at the pawnshop. He saw Sherow enter the pawnshop with a woman he introduced to Mann as his girlfriend. They sold 423 DVD's to Mann for $846.
"Police arrested Sherow at the pawnshop on September 19, 2007. On that day, Sherow entered the pawnshop with 67 boxed sets of DVD's and a homeless man, whom Sherow had asked to complete the sales transaction for him using the man's identification.
"Sherow was charged with several counts of burglary (§ 459). Counts 1 and 2 arose from stealing clothes in the Ross and AJWright stores on July 31, 2007. Counts 4, 5 and 6 arose from stealing the DVD's at the Walmart and Sam's Club stores on August 1, 2007." (Sherow I, supra, 196 Cal.App.4th at pp. 1300-1302.)
The jury returned guilty verdicts. Sherow appealed his convictions. This court reversed counts 7 through 10 for instructional error. (Sherow I, supra, 196 Cal.App.4th at p. 1311.)
After the passage of Proposition 47, Sherow filed a petition for resentencing on the five remaining counts of second degree burglary without producing any evidence in support of his petition. The trial court denied his request. On appeal, this court held that the defendant has the initial burden of proof to establish the facts to show eligibility for resentencing, and affirmed the trial court's denial of Sherow's petition for resentencing without prejudice to subsequent consideration of a properly filed petition. (Sherow II, supra, 239 Cal.App.4th at p. 881.)
In 2015, Sherow filed a new petition for resentencing on five counts of second degree burglary with affidavits stating that at the time he entered each store, he did not intend to steal property valued at more than $950. Later, Sherow submitted supplemental declarations stating that on or about August 1, 2007, he entered: (1) a Walmart store in Westminster, California, with the intent to steal four box DVD sets of seasons 2 and 3 of the television show I Dream of Jeannie, and the value of the merchandise he did steal was less than $950 (count 4); (2) a Walmart store in Corona, California, with the intent to steal four box DVD sets of seasons 1 and 2 of the television show Sanford and Son, and took merchandise valued at less than $950 (count 5); and (3) a Sam's Club in Corona, California, with the intent to steal four box DVD sets of seasons 1 and 2 of the television show CSI, and the value of the merchandise he did steal was less than $950 (count 6).
In the interests of brevity, we do not discuss counts 1 and 2, which are not at issue in this appeal.
The People opposed resentencing. They argued Sherow's crimes involved a sophisticated conspiracy, not merely a series of petty thefts. Sherow would steal new DVD box sets and his family members would sell the DVDs to a pawnshop several times a week. The People argued Sherow was ineligible for resentencing because his aggregate total theft was in excess of $950, and his crimes should be viewed as a continuous course of conduct.
The trial court said there was some corroborating evidence in the record for Sherow's assertion the amount in question for each offense was under $950. However, the burglaries were part of a larger conspiracy, involving repeated thefts from the same victims. The trial court denied Sherow's petition to reduce counts 4, 5 and 6 to misdemeanors because the loss to the victims exceeded $950, Proposition 47 did not apply to conspiracies, and the People would have charged Sherow with a felony had the charges been filed today.
The trial court granted Sherow's request to strike two prison priors, which had been reduced to misdemeanors by another trial court under Proposition 47, and sentenced him to 14 years eight months in prison. In August, Sherow informed the trial court that another prison prior had been reduced to a misdemeanor. The trial court modified Sherow's sentence to 13 years eight months in prison.
DISCUSSION
I
APPLICATION OF PROPOSITION 47 TO APPELLANT'S SECOND
DEGREE FELONY BURGLARY CONVICTIONS
A. The Parties' Arguments
Sherow contends the trial court erred by not separately considering the value of the property taken in each of his second degree burglary offenses. He argues the trial court impermissibly aggregated the amounts of the charged and uncharged crimes, deeming them to be part of an uncharged conspiracy, in denying his resentencing request under Proposition 47.
The People acknowledge the trial court improperly aggregated the losses from the DVD thefts. They argue Sherow did not meet his burden to show that the value of the stolen property was $950 or less and, therefore, the trial court properly denied Sherow's petition for resentencing under Proposition 47.
B. Relevant Legal Principles
"Proposition 47, which is codified in section 1170.18, reduced the penalties for a number of offenses. Among those crimes are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5. Shoplifting is now a misdemeanor unless the prosecution proves [at trial] the value of the items stolen exceeds $950." (Sherow II, supra, 239 Cal.App.4th at p. 879.)
"Section 1170.18 creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. Section 1170.18, subdivision (b) provides in part: 'Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria for subdivision (a).' Under subdivision (b) a person who satisfies the criteria in subdivision (a) of section 1170.18 shall have his or her sentence recalled and be sentenced to a misdemeanor (subject to certain exclusions not relevant here)." (Sherow II, supra, 239 Cal.App.4th at p. 879.)
"Under Proposition 47, the petitioner has the burden to show that he or she is eligible for resentencing. With respect to a theft-related offense, this includes showing that the value of the relevant property was $950 or less. [Citations.] Simply alleging that the petitioner 'believes' the property was worth $950 or less is not enough, even if the petition is under penalty of perjury. ' "An affidavit based on 'information and belief' is hearsay and must be disregarded." [Citation].' [Citation.] Rather, the petitioner must 'indicate . . . the factual basis of his claim regarding the value of the stolen property.' " (People v. Sweeney (2016) 4 Cal.App.5th 295, 302.)
In addition to these legal principles, the law of the case applies. In Sherow II, this court stated: "We think it is entirely appropriate to allocate the initial burden of proof to the petitioner to establish the facts upon which his or her eligibility is based. [¶] Applying the burden to Sherow would not be unfair or unreasonable. He knows what kind of items he took from the stores . . . . At the time of trial it was not necessary for the prosecution to prove the value of the loss to prove second degree burglary. Thus there is apparently no record of value in the trial record. [¶] A proper petition could certainly contain at least Sherow'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 II, supra, 239 Cal.App.4th at p. 880.)
C. Misdemeanor
Sherow filed a petition for resentencing, supported by affidavits concerning the items he stole from Walmart and Sam's Club on August 1. He summarized the factual basis of each count separately and described under penalty of perjury the nature and value of the property taken in counts 4, 5 and 6. At Sherow's request, the trial court took judicial notice of the record of conviction, the reporter's transcript of the trial, and the exhibits introduced at trial. The trial court noted there was corroborating evidence for Sherow's assertion the value of the property taken in each theft was under $950.
The People did not contest or refute Sherow's declaration the value of the stolen items from each theft was $950 or less. The record shows that on August 1, Sherow went to two Walmart stores and a Sam's Club. At each store, he took DVDs off the shelves and put them down his pants. Sherow then met his son Dominique in the parking lot of the pawnshop. Sherow gave a large box of DVDs to Dominique, who then went into the pawnshop and sold 259 DVDs for $518. Dominique emerged a short time later and pulled money out of his pocket, which he divided with Sherow. (Sherow I, supra, 196 Cal.App.4th at p. 1301.) Thus, the record supports Sherow's description of the property taken, and there is nothing in the record that refutes his assertion the value of the four box DVD sets he stole from each store was $950 or less.
If the petitioner satisfies the statutory criteria, "the trial court must recall and resentence the petitioner, unless it determines that doing so 'would pose an unreasonable risk of danger to public safety.' " (People v. Scarbrough (2015) 240 Cal.App.4th 916, 924; italics added; People v. Hoffman (2015) 241 Cal.App.4th 1304, 1309 (Hoffman).) "The statutory criteria for resentencing are that the 'person [is] currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense . . . .' (§ 1170.18, subd. (a).) ' "[U]nreasonable risk of danger to public safety" ' is defined to mean an unreasonable risk that the petitioner will commit a new super-strike offense, such as murder, rape or child molestation. (Id., subd. (c); see § 667, subd. (e)(2)(C)(iv).)" (Hoffman, supra, at p. 1309.) The People do not assert, and the record does not show, that resentencing Sherow would pose an unreasonable risk of danger to public safety within the meaning of the statute. (§§ 1170.18, subd. (c), 667, subd. (e)(2)(C)(iv).)
The People concede the trial court erred in aggregating the total losses of the thefts. Shoplifting is a misdemeanor, "where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (§ 459.5, subd. (a).) Section 459.5 does not authorize the trial court to aggregate the value of property taken in each theft. The characterization of the offense as a misdemeanor or felony depends on the value of the property that is taken or intended to be taken when entering a commercial establishment during regular business hours. (Ibid.; cf. Hoffman, supra, 241 Cal.App.4th at p. 1310 [§ 473, proscribing check forgery, does not authorize the trial court to aggregate check values].)
We understand the trial court viewed Sherow as a dedicated thief and the mastermind of a relatively sophisticated theft ring. The record supports this view. The trial court denied Sherow's petition on the ground that had the charges been filed today, they would not have been filed as misdemeanors. However, the trial court cannot now rectify the district attorney's initial charging decision. At the time, the charging of multiple counts of second degree felony burglary was designed to result in the maximum sentence for Sherow, if convicted. As much as we understand the trial court's effort to sentence Sherow to more than " 'a misdemeanor slap on the wrist' " (Hoffman, supra, 241 Cal.App.4th at p. 1311), "[t]he 'criteria' for resentencing are explicitly stated in section 1170.18, subdivision (a), and ' "unreasonable risk" ' is defined in subdivision (c). If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the 'felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.' (Id. subd. (b).)" (Hoffman, supra, at p. 1311.) Sherow meets the statutory criteria for resentencing of his second degree felony convictions under Proposition 47.
II
THE ISSUE OF WHETHER THE PRISON PRIOR ENHANCEMENTS APPLY IS MOOT
The Riverside County District Attorney contends the trial court erred by striking Sherow's prison priors that had been reduced to misdemeanors under Proposition 47. The prison prior enhancement requires proof the defendant was previously convicted of a felony, was imprisoned as a result of that conviction, completed that term of imprisonment, and did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony. (People v. Tenner (1993) 6 Cal.4th 559, 563; § 667.5, subd. (b).)
The California Supreme Court has granted review to resolve whether a defendant is eligible for resentencing on a penalty enhancement for serving a prior prison term on a felony conviction after a court has reclassified that conviction as a misdemeanor under Proposition 47. (People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30, 2016, S232900.) --------
Sherow's new offenses are now misdemeanors. "A claim is moot when the grounds for the claim no longer exist." (People v. Peoples (2016) 62 Cal.4th 718, 773, citing 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 21, p. 86; see Eye Dog Foundation v. State Bd. of Guide Dogs for Blind (1967) 67 Cal.2d 536, 541.) In view of this opinion, there are no new felony offenses to which the prison prior enhancements may apply. Prison prior enhancements do not attach to misdemeanors. (§ 667.5, subd. (b).) The issue is therefore moot.
DISPOSITION
The order denying Sherow's petition for resentencing on counts 4, 5 and 6 is reversed. The matter is remanded for resentencing.
/s/_________
HUFFMAN, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
HALLER, J.