*696Defendant James Roth pleaded no contest to, and was convicted of, second degree burglary ( Pen. Code,
Defendant appeals from the order finding him in violation of probation and from the trial court's order vacating the misdemeanor sentence and reinstating the felony sentence. With regard to the probation violation, defendant's appointed counsel filed a brief asking this court to independently review the record regarding the probation violation hearing in accordance with the holding of People v. Wende (1979)
We have reviewed the record of the probation violation hearing, and are satisfied that no arguable issues exist with regard to it. With respect to the reinstatement of the felony sentence, we conclude that the misdemeanor sentence was unauthorized, and therefore the trial court properly vacated it and reinstated the felony sentence.
BACKGROUND
A. Original Conviction
Because defendant pleaded no contest to the original charged crime, our discussion of the facts of the crime is based upon the testimony at the preliminary hearing.
In February 2013, Crecencio Ceballos-Luiz was renting a storage unit at the Extra Space Storage facility in Los Angeles. The storage unit was secured with a *765lock, for which only Ceballos-Luiz had a key. On February 25, at approximately 6:00 p.m., Ceballos-Luiz was at his storage unit. When he left, he secured the unit with his lock. When he returned to the storage unit on February 27, his key did not work because there was a new lock on the unit. He ultimately gained access to the unit, and discovered that some of his tools were missing. *698Defendant rented a storage unit near Ceballos-Luiz's unit at the Extra Space Storage facility. After viewing surveillance footage of the area where both units were located for the dates February 25 and 26, 2013, Los Angeles Police Department Detective Tae Hong interviewed defendant. Defendant admitted breaking into Ceballos-Luiz's storage unit. Defendant told the detective that he cut the lock, rolled open the door, went inside and took a few items, then closed the door and put his own lock on it.
On May 20, 2013, defendant was charged by information with one count of burglary as follows: "On or about February 25, 2013, in the County of Los Angeles, the crime of BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by JAMES ROBERT ROTH, who did enter [a] storage locker with the intent to commit larceny and any felony." The information also alleged four prior prison term enhancements (§ 667.5, subd. (b)), one of which subsequently was dismissed, and a prior strike under the Three Strikes law (§§ 667, subds. (b)-(j), 1170.12).
On January 29, 2014, under a plea agreement, defendant pleaded no contest to the burglary charge and admitted the three prior prison term allegations and prior strike allegation. Defense counsel stipulated to a factual basis for the plea "based on the arrest report and the transcripts." The trial court struck the prior strike allegation, found the burglary to be in the second degree, and imposed a sentence of nine years (which the court described as the upper term of six years, plus one year for each of the three prior prison term enhancements). The court suspended execution of the sentence, placed defendant on probation for 36 months, and ordered him to serve 365 days in a residential drug treatment program.
B. Probation Violations
On June 8, 2015, the trial court revoked defendant's probation after receiving a report that defendant had failed to report for three drug tests. At the initial hearing on the violation, defense counsel explained that defendant had been hospitalized after a serious automobile accident, and upon his release from a one-month stay in the hospital, he entered a live-in drug program in which he is drug-tested. The court ordered a supplemental probation report, and continued the hearing.
At the continued hearing, held on July 21, 2015, the court found that defendant was not in violation of probation and reinstated probation. At 2:30 in the morning the following day, defendant was arrested. The setting of the probation violation hearing was continued for several months while proceedings on this new charge were conducted in a separate case.
*699C. Proposition 47 Petition
On October 8, 2015, before the probation violation was adjudicated, defendant, represented by private counsel, filed a petition under section 1170.18 to recall his felony sentence and to resentence the conviction as a misdemeanor. In the petition, counsel listed the felony as "§ 459 P.C. (COMMERCIAL BURGLARY)," and indicated that the amount in question was not more than $950.
*766The hearing on the petition was held on November 12, 2015. At the hearing, the trial court asked the prosecutor whether defendant qualified for a sentence reduction, and the prosecutor responded, "Yes, Your Honor. He has no disqualifying prior felonies." The court then granted the petition, recalled the felony sentence and imposed a misdemeanor sentence under Proposition 47, and placed defendant on summary probation.
A month later, on December 11, 2015, the trial court issued an order to show cause, stating that it "may have improvidently granted [defendant's Proposition 47] petition because defendant's offense does not qualify for relief under Proposition 47 and the misdemeanor sentence is therefore unauthorized." The court pointed out that it retained jurisdiction over the case because the time for filing a notice of appeal from the ruling had not yet lapsed and no notice of appeal had been filed. It also observed that an unauthorized sentence may be set aside at any time while the court retained jurisdiction over the case. (Citing People v. Amaya (2015)
Addressing the facts regarding defendant's conviction, the court noted that defendant pled no contest to burglary, and that the evidence presented at the preliminary hearing was that defendant broke into the victim's storage locker and stole tools. It observed that the elements of the crime of shoplifting, a new misdemeanor offense under Proposition 47, include entry into a commercial establishment with intent to commit larceny of property valued at $950 or less. Citing a decision from Division Five of this District that had been published a few weeks earlier- In re J.L. (2015)
Defendant filed a response to the order to show cause in which he argued that his crime qualified as shoplifting because he stole items from a storage locker, which was located in a storage facility, which was a commercial establishment. Therefore, he contended he was entitled to resentencing as a misdemeanor under Proposition 47.
At the hearing on the order to show cause, held on January 21, 2016, the trial court reiterated the underlying facts of the crime, and why it did not constitute shoplifting: "[T]he defendant actually cut a lock on a victim's storage locker, stole some tools and put his own lock on the inside storage locker. And this occurred between 8:00 and 9:00 p.m. [¶] I don't believe there is any information in the record as to whether or not the main storage facility was, in fact, open at that time. But it's clear to me that while the storage facility, in fact, may have been a commercial establishment and perhaps subject to Prop. 47, the individual storage locker belonging to an individual victim was not a commercial establishment. The individual storage locker had nothing to do with buying and selling of goods and services. This is a traditional second degree burglary."
*767Therefore, the court set aside the November 12, 2015 order, finding it unauthorized under Proposition 47, and reinstated the original felony conviction.
D. Probation Violation Hearing
The probation violation hearing was conducted on February 26, 2016 and April 5, 2016. According to the evidence presented at the hearing, police officer Denward Chin was on patrol at 2:30 a.m. on July 22, 2015, when he saw an older model car without a front license plate and with a rear paper plate. Officer Chin pulled up behind the car and activated his patrol car's red lights and siren. The car did not stop immediately, and continued driving between five and 20 miles per hour for a few blocks. Officer Chin followed the car, with his red lights on, chirping the siren, and shining a spotlight at the rear-view mirror. While he was following the car, Officer Chin noticed something like glitter or a reflective powder coming out of the front passenger-side window. He then saw a baggie with a white substance inside being tossed out of the same window. Shortly thereafter, the car made a turn and pulled over.
Defendant was in the driver's seat, and Erik Valencia was in the front passenger seat. They were ordered from the car, and a backpack was recovered from the front passenger seat. The backpack contained several cell *701phones, a bag containing what was determined to be 0.44 grams of methamphetamine, and empty plastic bags. While defendant and Valencia were being held by other officers, Officer Chin went back to the area where he saw the baggie being thrown out of the window and recovered it; it contained what was determined to be 6.88 grams of methamphetamine.
Both defendant and Valencia testified at the probation violation hearing. Both testified that the methamphetamine was Valencia's, and that defendant did not know that Valencia had methamphetamine until Officer Chin pulled up behind defendant's car and Valencia started to panic. They also testified that they had never met before that morning. They said they met when they both came to help a mutual friend who had been kicked out of her apartment move her belongings; after defendant drove the friend and her belongings to her ex-boyfriend's apartment, he agreed to give Valencia a ride.
The director of the residential drug treatment program that defendant attended also testified; his testimony raised questions about defendant's credibility and the veracity of defendant's story.
The trial court found that defendant was aiding and abetting Valencia and was consorting with someone who had narcotics for sale, and therefore violated his probation. In ordering that his sentence be executed, the court realized that the original nine year sentence was incorrect; it had imposed an incorrect upper term of six years, rather than the correct upper term of three years. Therefore, the court ordered that the unauthorized sentence of nine years be corrected nunc pro tunc to a sentence of six years (the upper term of three years, plus one year for each of the three prior prison term enhancements).
E. Notices of Appeal
On April 29, 2016, defendant filed a notice of appeal from the April 5, 2016 order finding him in violation of probation and executing his suspended sentence. That same date, he also attempted to file a notice of appeal from the January 21, 2016 order in which the trial court vacated its earlier grant of defendant's Proposition 47 petition and reinstated defendant's felony sentence. The latter notice of appeal was rejected as untimely.
*768Defendant filed a motion in this court, asking for relief from default for his failure to timely file a notice of appeal. His motion was supported by, among other things, a declaration from Paul J. Cohen, the privately retained attorney who had represented him in the trial court proceedings at issue. Mr. Cohen explained that after the trial court's January 21, 2016 ruling, defendant indicated that he wanted to appeal, and Mr. Cohen told him that he would file *702a notice of appeal on his behalf. Due to an oversight, Mr. Cohen failed to timely do so. In his motion, defendant asked that we apply the doctrine of constructive filing set forth in People v. Slobodion (1947)
DISCUSSION
A. Appeal From the Order Reinstating Felony Sentence
Defendant contends on appeal that the trial court did not have jurisdiction to reinstate his felony sentence after the misdemeanor sentence had been entered into the court minutes, and that by doing so, the court violated his federal and state constitutional right to protection against double jeopardy.
As defendant correctly observes, the California Supreme Court has held that "a valid sentence may not be increased after formal entry in the minutes," because doing so would implicate double jeopardy concerns. ( People v. Karaman (1992)
1. Unauthorized Sentences
The issue of unauthorized sentences generally arises in the context of the waiver doctrine, i.e., whether an appellant may challenge a sentence on appeal despite having failed to raise an objection below. (See, e.g., People v. Scott (1994)
The Supreme Court observed that "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the *703particular case," and "commonly occurs where the court violates mandatory provisions governing the length of confinement." ( Scott , supra ,
2. The Misdemeanor Sentence in This Case
As noted, defendant originally was convicted of second degree burglary, a felony, in January 2014, and a felony sentence was imposed. In November 2014, California voters approved Proposition 47, which reclassified as misdemeanors certain drug and theft offenses that previously had been felonies or "wobblers," and allowed defendants who had been convicted of those offenses as felonies to petition to seek resentencing as misdemeanors. ( In re J.L. , supra , 242 Cal.App.4th at pp. 1111-1112,
One of those offenses is the crime of "shoplifting," which was created by Proposition 47, and codified at section 459.5. That statute provides, in relevant part: "(a) Notwithstanding Section 459 [i.e., the burglary statute], 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, [with certain exceptions not at issue here]. [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5.)
Defendant petitioned to have his felony burglary sentence recalled and be resentenced for misdemeanor shoplifting. Having been told by the prosecutor-incorrectly-that defendant qualified for sentence reduction and that he had no disqualifying felonies, the trial court granted the petition, vacated the felony sentence, and imposed a misdemeanor sentence. It subsequently determined, based upon the evidence that had been presented at the preliminary hearing, that defendant's conviction did not qualify as shoplifting because the burglary involved entry into a storage locker that was leased by an individual and kept locked, and therefore the locker was not a commercial *704establishment. Because defendant's conviction did not qualify for resentencing, the court vacated the misdemeanor sentence and reinstated the felony sentence.
3. The Misdemeanor Sentence Was Unauthorized
In arguing that the misdemeanor sentence was not unauthorized, defendant seizes on language the Supreme Court used in explaining the difference between cases involving unauthorized sentences and those that do not. The Court in Welch noted that cases finding sentences unauthorized "generally involve pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ( Welch , supra ,
Defendant looks for support in the reasoning of the appellate court in Amaya , supra ,
Respectfully, we disagree with the appellate court's analysis of unauthorized sentences in Amaya . It, like defendant's argument here, ignores the distinction between a sentencing decision that the trial court had the discretion to make, although flawed in some way, and one for which it had no legal *705authority. This failure to appreciate the distinction is illustrated by the Amaya court's discussion of In re Alexander A. (2011)
The Amaya court explained that in Alexander A. , the parties stipulated to a certain amount as an appropriate restitution fine, and based on that stipulation, the court imposed that amount. The People later argued that the appropriate amount of restitution was higher, and that imposition of the lower amount resulted in an unauthorized sentence. ( Amaya , supra ,
*771What the Amaya court overlooked is that while a trial court has the discretion to determine the appropriate amount of a restitution fine based upon the facts before it, a trial court does not have any discretion to resentence a defendant under Proposition 36 or Proposition 47 unless the defendant, in fact, qualifies for resentencing. Although the court acknowledged, in finding that the resentencing was void,
That is exactly the case here. The trial court could not lawfully impose a misdemeanor sentence for defendant's offense unless that offense qualified as shoplifting under section 459.5. Despite the prosecutor's assurances at the time of resentencing, it did not. The record shows that defendant was charged with entering a storage locker with intent to commit larceny. He pleaded no contest, and his counsel stipulated to a factual basis for the plea based in part on the preliminary hearing transcript. That transcript shows, without question, that the storage locker at issue was leased by an individual and kept locked; it was not open to the public as a commercial business. Therefore, defendant's entry into the locker to commit larceny did not constitute shoplifting, and he did not qualify for resentencing under Proposition 47. (See People v. Stylz (2016)
In his appellant's reply brief, defendant argues that at the time the trial court imposed the misdemeanor sentence, it was not unauthorized because there were no published decisions at that time that held that entry into a privately leased storage *772locker at a storage facility did not qualify as entry into a commercial establishment. It is true that our decision in Stylz , supra ,
B. Appeal From Order Finding Probation Violation
As noted, in defendant's appeal from the trial court's order finding a probation violation, defendant's appointed counsel filed a brief asking this court to independently review the record in accordance with the holding of People v. Wende , supra ,
We have examined the entire record and are satisfied that no arguable issues exist, and that defendant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. ( Smith v. Robbins (2000)
DISPOSITION
The January 21, 2016 and April 5, 2016 orders are affirmed.
We concur:
EPSTEIN, P. J.
MANELLA, J.
Notes
Further undesignated statutory references are to the Penal Code.
We note that this finding alone established that the resentencing was unauthorized. A void sentence-which cannot lawfully be imposed under any circumstance-is by definition an unauthorized sentence. The difference between the two is that a sentence is void on its face only if "its invalidity is apparent from an inspection of the judgment roll." (People v. Davis(1904)