Filed 3/29/17 P. v. Anderson CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SAMANTHA CHRISTINE ANDERSON,

Defendant and Appellant.

F072907

(Super. Ct. No. F10906532)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Tennant Nieto and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Appellant Samantha Christine Anderson appeals from the denial of her application for reduction, filed pursuant to Proposition 47. Appellant contends she was eligible for reduction on two, second degree burglary convictions (Pen. Code, §§ 459, 460, subd. (b)) because she entered a commercial establishment with the intent to commit larceny by using fraudulent checks to purchase goods. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 30, 2010, appellant was charged with 48 counts related to her extensive use of identity fraud to purchase goods. Appellant ultimately pled nolo contendere to four charges—one count of identity theft (§ 530.5, subd. (a) (count 2)) and three counts of second degree commercial burglary (counts 3, 10, and 48)—and received a six-year sentence in 2011.
On June 12, 2015, appellant filed an application for reduction, identifying her 2011 sentence as one of several upon which she was eligible for reduction. Relevant to this appeal, appellant sought a reduction for counts 3 and 10, both felony second degree burglary convictions. With respect to both counts, in separate incidents appellant purchased less than $950 in goods or services from Costco utilizing checks in the name of victim Joy O. but linked to the bank account of victims David and Michelle C.
The trial court denied appellant’s application, rejecting appellant’s argument that use of a fraudulent check is a larcenous act. This appeal timely followed.
DISCUSSION
Appellant argues the trial court erred by failing to recognize that entering a store with the intent to purchase goods using fraudulent checks qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47.

Standard of Review and Applicable Law
“In November 2014, California voters enacted Proposition 47, which ‘created a new resentencing provision: section 1170.18.’ ” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).) As enacted, section 1170.18 provides that “[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).)
“Proposition 47 added section 459.5, which classifies shoplifting as 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).) ‘[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered “a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours,” and whether “the value of the property that [was] taken or intended to be taken” exceeded $950. (§ 459.5.)’ ” (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.)
The court’s review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114.) Factual findings of the trial court are reviewed “for substantial evidence and the application of those facts to the statute de novo.” (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) The record is viewed in the light most favorable to the trial court’s ruling with a presumption that the order was correct. (Ibid.)


Appellant’s Conduct Does Not Qualify as Larceny
This court recently analyzed the meaning of the shoplifting statute and found that larceny, as used in that statute, should be interpreted according to its common law definition. (People v. Martin (2016) 6 Cal.App.5th 666, 683, review granted February 15, 2017, S239205.) As such, to demonstrate eligibility, appellant must point to facts showing an intent to commit a trespassory taking, among other elements. (Id. at p. 676.) As we detailed in Martin, intending to commit theft by false pretenses does not qualify as larceny under this definition. (Id. at pp. 683-684.) The facts as presented on appeal show appellant fraudulently attempted to obtain goods and services through transactions presented as legitimate. This fails to satisfy the common law definition of larceny, as there was no intent to commit a trespassory taking. Appellant’s second degree burglary convictions, therefore, do not qualify for reduction.
DISPOSITION
The order is affirmed.