People forfeited argument that Proposition 47 petitioner failed to establish eligibility for relief because prosecutor failed to object to defense counsel’s representations during evidentiary hearing. Huerta and a companion entered a Sears and stole a number of bottles of perfume. Huerta later pleaded guilty to felony second degree commercial burglary. After Proposition 47 passed, she filed a petition to reduce that felony conviction to misdemeanor shoplifting. The trial court granted her petition. The People appealed, arguing, inter alia, that Huerta failed to establish her eligibility because she did not attach any evidence to her petition that the stolen perfume was worth $950 or less. Held: Affirmed. In November 2014, Proposition 47 reduced certain drug and theft-related offenses to misdemeanors for qualified defendants. It created a mechanism whereby defendants who are currently serving a felony sentence for an offense that would now be a misdemeanor to request resentencing (Pen. Code, § 1170.18). Proposition 47 also added the new offense of misdemeanor shoplifting (Pen. Code, § 459.5), defined as entering a commercial establishment with the intent to commit larceny while that establishment is open during regular business hours, where the value of the items taken does not exceed $950. The petitioner has the burden of demonstrating eligibility, including that the value of the property taken did not exceed $950. Here, Huerta alleged in her petition that the value of the perfume stolen did not exceed $950, but she did not attach any evidence to her petition. This was of no consequence because the court could have permitted Huerta to amend her petition to attach available evidence that the bottles of perfume she and her companion stole were valued at less than $950. Additionally, at the evidentiary hearing, defense counsel represented that the value was less than $950 and the prosecutor failed to contest it. “The prosecutor’s silence during defense counsel’s representations of these facts effectively forfeited the People’s objection that defendant did not carry her burden.”

Uncharged conspiracy to commit larceny does not render petitioner ineligible for Proposition 47 relief. The People also argued that Huerta’s second degree commercial burglary conviction was ineligible for reduction to misdemeanor shoplifting because she entered Sears with the intent to commit conspiracy. The Court of Appeal rejected the argument. First, the People never charged Huerta with conspiracy. Second, even assuming that Huerta entered the Sears with an intent to conspire to commit larceny, such conduct is within the scope of shoplifting. If Huerta harbored the intent to commit larceny, the new shoplifting statute directs the offense “shall” be charged as shoplifting and that no person who is charged with shoplifting may be charged with burglary or theft of the same property. (See Pen. Code, § 459.5.) “It follows under the plain text of the statute that prosecutors would have been required to charge her with shoplifting and could not have charged her with burglary predicated on conspiracy had Proposition 47 been in effect at the time of her offense.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E065365.PDF