Filed 8/2/17 P v. Flores 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

KRISTY FLORES,

Defendant and Appellant.

F072938

(Super. Ct. Nos. F10904501, F11300545, F11904769, F11906190)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Alvin M. Harrell III, Judge.
Lindsay Sweet, 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, Michael A. Canzoneri and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Appellant Kristy Flores appeals from the denial of her petition for resentencing,
pursuant to Proposition 47, with respect to 11 convictions for second degree burglary in
two cases. We reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1, 3, and 5 in Case No. F11300545
On February 14, 2011, Flores passed a stolen check in the amount of $147.33 at a CVS Pharmacy (count 3), and two stolen checks at Valley Food Center in the amounts of $51.95 and $27.24, respectively (counts 1 and 5).
Counts 3, 5, 7, 10, 13, 16, 18, and 29 in Case No. F11906190
On September 16, 2011, Flores attempted to cash a stolen check in the amount of $789.28 at Express Check Cashing (count 29). On October 16, 2011, Flores passed a stolen check in the amount of $21.58 at a Sears store (count 3). On October 21, 2011, Flores passed a stolen check in an amount less than $950 at the Department of Motor Vehicles (count 5), two stolen checks totaling $220.17 at a Burlington Coat Factory store (count 7), and two stolen checks totaling $104.71 at Sears (count 10). On October 22, 2011, Flores passed two stolen checks totaling $401.14 at a Costco in Fresno, California. Afterwards, she unsuccessfully attempted to pass a stolen check in the amount of $568.21 at a Costco in Clovis, California. She then returned to the Fresno Costco and was successful in passing a stolen check in the amount of $518.27 and unsuccessful in passing a stolen check in the amount of $364.31 (counts 13 & 16). On October 24, 2011, she passed a stolen check in the amount of $480 at Costco (count 18).
Subsequent Proceedings
On May 21, 2012, Flores pled no contest to numerous charges in case
Nos. F11300545, F11904769, and F11906190, including three counts of felony second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) in counts 1, 3, and 5 of case
No. F11300545 and eight counts of felony second degree burglary in counts 3, 5, 7, 10, 13, 16, 18 and 29 of case No. F11906190. Based on her pleas in the above three cases, the court found that Flores violated her probation in case No. F10904501.
On June 20, 2012, the court sentenced Flores to an aggregate local prison term of 18 years eight months in all four cases. It then suspended execution of sentence and placed Flores on probation for five years.
On December 20, 2013, after Flores admitted violating her probation in all four cases, the court imposed the aggregate local prison term of 18 years eight months it had previously suspended.
On November 20, 2014, pursuant to Proposition 47, Flores filed a pro se petition for resentencing in case Nos. F10904501, F11904769, and F1196190.
On December 21, 2015, the court granted the petition as to Flores’s convictions in five counts in two cases and reduced those convictions to misdemeanors. Although the court resentenced Flores on those counts, because the court had previously imposed concurrent terms on them, Flores’s aggregate local prison term of 18 years eight months remained unchanged.
The court however, denied the petition to Flores’s second degree burglary convictions in the 11 counts noted above. In doing so, the court concluded Flores entered each establishment with the intent to commit identity theft, which was a public offense rather than a theft related offense.
DISCUSSION
Flores contends the court erred in denying her petition for resentencing with respect to the 11 second degree burglary convictions discussed above because, in each case, she entered a commercial establishment with the intent to commit larceny by using a fraudulent check to purchase goods. We agree.
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.)
Flores’s Conduct Qualifies as Larceny
The California Supreme Court recently held that the term “larceny” as defined by section 459.5 is not limited to trespassory takings, but includes non-trespassory takings such as theft by false pretenses. (People v. Gonzales (2017) 2 Cal.5th 858, 862.) In each of the incidents underlying Flores’s second degree burglary convictions in the 11 counts discussed above, Flores attempted to fraudulently obtain property through transactions that qualify as theft by false pretenses because each of these transactions were presented to the victims as legitimate. Flores’s second degree burglary convictions in each of the 11 counts, therefore, qualify for reduction.
DISPOSITION
The order is reversed and the matter remanded for further proceedings consistent with this opinion.