Colbert

I. FACTUAL AND PROCEDURAL BACKGROUND2

Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six year prison term he incurred due to a robbery he committed in San Mateo County while out on bail on the burglary charges.

1 Unspecified statutory references are to the Penal Code. 2 By order dated November 4, 2015, we denied Colbert‟s request to take judicial notice of the trial record in Santa Clara County Superior Court case No. 206805. On the court‟s own motion, we take judicial notice of this court‟s unpublished opinion on the direct appeal from that case, People v. Colbert (Feb. 29, 2000, H019315). A. Facts relating to Count 1 “On December 26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk about lottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone.” (People…

Dissenting.—I respectfully dissent. In my view, Colbert’s conduct constituted shoplifting under the plain language of Penal Code section 459.5. Because Colbert has established his eligibility for resentencing under Proposition 47, I would reverse the trial court’s order denying the petition.

In each of the four offenses, Colbert and his companion entered a commercial establishment during business hours. They employed the same modus operandi in each instance: While Colbert distracted the store clerk, Colbert’s companion snuck into a back office to steal cash. In count 1, the companion stole about $300 in cash at a gas station. In count 2, he stole about $318 in cash at a 7-Eleven convenience store. In count 3, he stole more than $3,000 in cash at another 7-Eleven. 1 In count 4, also at a 7-Eleven, he was interrupted before he could take anything.

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).” (Pen. Code, § 459.5, subd. (a).) There is no dispute that…

Defendant Mark Anthony Colbert appeals from an order denying his petition to redesignate certain felony convictions as misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal, Colbert contends the trial court erred in ruling these convictions were ineligible for redesignation.

We find no merit to Colbert’s arguments and will affirm the order.

I. Factual and Procedural Background

Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six-year prison term he incurred due to a robbery he committed in San Mateo County while out on bail on the burglary charges.

A. Facts relating to count

“On December 26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk about lottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone.” (People v.…