People v. Jefferson CA4/2

I. INTRODUCTION

While serving a 32-month sentence for commercial burglary (Pen. Code, § 459), defendant and appellant, Lamonte Alvin Jefferson, petitioned the trial court to recall his sentence and resentence him as if he had been convicted of misdemeanor shoplifting (§§459.5, 1170.18, subd. (a)). Defendant stole an ink cartridge worth $24.99 from a Riverside Kmart store.

The parties agreed that defendant’s commercial burglary conviction qualified as a misdemeanor shoplifting conviction. (§ 459.5 [defining shoplifting as including entering a commercial establishment during regular business hours with intent to commit or committing larceny where value of property taken or intended to be taken does not exceed $950].) The parties also agreed that, had defendant’s petition been granted at the January 12, 2015, hearing on the petition, defendant would have been eligible for immediate release from prison. However, the court denied the petition on the ground defendant posed an unreasonable risk of danger to public safety. (§ 1170.18, subds. (b), (c).)

Defendant claims the court erroneously applied the preponderance of the evidence standard to its unreasonable risk of…