Filed 8/11/17 P. v. Gallegos CA4/2
Opinion on remand from the Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JASON ANDREW GALLEGOS,

Defendant and Appellant.


E063786

(Super.Ct.No. SWF1101186)

OPINION


APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Reversed with directions.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor, Paige B. Hazard, and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In 2011, defendant and appellant Jason Andrew Gallegos pleaded guilty to one count of commercial burglary, a felony, under Penal Code section 459. Defendant appeals from an order finding that the commercial burglary offense did not qualify as misdemeanor shoplifting under section 459.5 and denying defendant’s petition for resentencing to misdemeanor forgery. (§ 1170.18.)
In an earlier appeal, defendant argued his felony burglary should be reduced to misdemeanor shoplifting. In June 2016, this court concluded the record of conviction was too limited to find that defendant had met his burden of proof to justify granting his petition. We affirmed the trial court’s order denying the petition.
After the California Supreme Court granted defendant’s petition for review, it issued its decision in People v. Gonzales (2017) 2 Cal.5th 858, 876-877, holding that misdemeanor shoplifting may not be charged as a burglary. The Supreme Court then transferred the case back to this court, “with directions to vacate its decision and to reconsider the cause in light of [Gonzales].” We ordered the parties to submit supplemental briefs, which they have done.
Defendant now argues that his offense was shoplifting, not forgery or burglary, and he qualifies for relief under section 1170.18. The People respond that the record is still deficient and the lower court cannot grant relief under section 1170.18. With the benefit of the Gonzales case, we conclude the lower court erred and we reverse the order denying defendant’s petition.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offense of Commercial Burglary
The record of conviction includes the charging document, the felony plea, and the hearing transcript. The felony complaint, filed on June 2, 2011, alleged six counts, plus additional allegations. Counts 1 and 3 alleged that, on April 5, 2011, defendant “did wilfully and unlawfully enter a certain building located at BRAND X LIQUOR 41740 IVY ST., MURRIETA, with intent to commit theft and a felony.” (§ 459.) Counts 2 and 4 alleged that, on April 5, 2011, defendant “did wilfully and unlawfully make, pass, utter, publish, or possess, with intent to defraud any other person, a FRAUDULENT CHECK.” (§ 476.) One check was No. 4406. The second check was No. 2017.
Count 5 alleged defendant was in possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) Count 6 charged defendant with resisting arrest. (§ 148, subd. (a)(l).) It was further alleged that defendant had one prison prior (§ 667.5, subd. (b)), and one strike prior (§§ 667, subds. (c) & (e)(l), 1170.12 subd. (c)(l)).
There was no preliminary hearing. After initially pleading not guilty, defendant pleaded guilty on September 22, 2011, to one count of second-degree felony burglary (§ 459) and admitted the strike prior. (§ 667, subds. (c) and (e)(1).) Counts 2 through 6 were dismissed in the interests of justice. (§ 1385.) The court sentenced defendant to two years in prison, which was doubled due to the strike, for a total of four years in prison.
B. The Petition for Resentencing
On December 10, 2014, defendant filed a petition for resentencing as a misdemeanant pursuant to section 1170.18. The People responded that defendant is not entitled to relief because he did not commit a qualifying felony; instead, he “went into liquor store with stolen checks & tried to cash them. Entered w/ intent to commit ID theft in addition to larceny.” The People maintained that the check-related offenses actually occurred on two days, April 5 and April 8, 2011, and the store manager had called the police the second time. The People argued defendant did not meet his burden of proof to show he was guilty of misdemeanor shoplifting (§ 459.5) rather than felony burglary. (§ 459.)
In his reply, defendant asserted that the two fraudulent checks listed himself as the payee and “Scottys Tuxedo Warehouse” as the payor. He attached photocopies of check No. 4406 (as alleged in count 2), payable for $400, and another check, No. 4408, payable for $550. Both were dated April 4, 2011. Defendant asserted he was eligible for resentencing, arguing he should be resentenced for misdemeanor forgery, not for shoplifting.
On May 15, 2015, the trial court denied defendant’s petition for resentencing. The court noted that defendant was convicted of burglary, not forgery, and a shoplifting is a new additional category of burglary under section 459.5. The court commented the dictionary defines shoplifting as “the stealing of displayed goods from a shop.” The court held the plain meaning of the word should be applied: “Under no plain-meaning definition of that word do I find that entering any business with the intent to cash a fraudulent check falls within the plain meaning of the term ‘shoplifting’.” Otherwise, section 459.5 could have been titled, “Thefts Under $950” instead of “Shoplifting.” Accordingly, defendant was convicted of burglary, not forgery, and the trial court found defendant did not engage in misdemeanor shoplifting as defined in section 459.5, and was therefore not entitled to relief under section 1170.18. The court denied defendant's petition for resentencing.
III
DISCUSSION
A. Gonzales
The trial court’s reasoning has now been rejected by the Gonzales court, which summarized its holding as follows:
“In 2014, Proposition 47 created the new crime of ‘shoplifting,’ defined as entering an open commercial establishment during regular business hours with the intent to commit ‘larceny’ of property worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute, which also applies to an entry with intent to commit ‘larceny’ or any felony. (Pen. Code, § 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft. Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute. Defendant may properly petition for misdemeanor resentencing under Penal Code section 1170.18. We reverse the Court of Appeal’s contrary judgment.” (People v. Gonzales, supra, 2 Cal.5th at p. 862.)
B. Section 459.5
Section 459.5 states: “Notwithstanding Section 459, 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 the intent to commit larceny is burglary. . . .” (§ 459.5, subd. (a).) Therefore, shoplifting under section 459.5 requires the following elements: (1) entry into a commercial establishment; (2) while the establishment was open during regular business hours; and (3) with the intent to commit theft. (CALCRIM No. 1703.) If the value of the property taken, or intended to be taken, is more than $950, the crime constitutes burglary. (§ 459; CALCRIM No. 1700.)
“The trial court’s decision on a section 1170.18 petition is inherently factual, requiring the trial court to determine whether the defendant meets the statutory criteria for relief. For example, to 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.” (People v. Contreras (2015) 237 Cal.App.4th 868, 892.)
Initially, defendant argued he should be sentenced for misdemeanor forgery and the trial court denied defendant’s petition. Defendant now contends that entering the Brand X liquor store with the intent to cash a $400 check, constitutes the crime of shoplifting. (People v. Gonzales, supra, 2 Cal.5th at p. 877.) The People counter that defendant is not eligible for resentencing because the record is too deficient to permit the court to make findings.
As we observed in the original appeal, our task is somewhat hindered by the sparse record of defendant’s conviction. The record of conviction consists solely of the felony complaint, the change of plea form, and the transcript of the change-of-plea hearing. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1120-1123.) Count 1 of the complaint does not expressly allege that the victim, Brand X Liquor, was a commercial establishment or that the objective of the alleged burglary was to pass a forged check. The dismissed forgery count—count 2—describes the charged offense as including the intent to pass a forged check but it does not refer to the liquor store or any commercial establishment as the locus or the victim of the crime. However, the check number identified in count 2 is the same as the check number on the copy of the check for $400 that defendant submitted in support of his petition for resentencing.
Therefore, when viewed as a whole, we hold the record establishes that defendant entered an open commercial establishment for the purpose of theft under $950. (§ 459.5, subd. (a).) Counts 1 and 2—together with defendant’s submission of the photocopied check for $400—describe the crime of entering Brand X Liquor, a commercial establishment, “to cash a stolen check for less than $950 [$400], traditionally regarded as a theft by false pretenses rather than larceny, [but which] now constitutes shoplifting under the statute.” (People v. Gonzales, supra, 2 Cal.5th at p. 862.) Defendant’s crime is misdemeanor shoplifting, qualifying him for relief under section 1170.18.
IV
DISPOSITION
The record of conviction, together with defendant’s supporting petition, demonstrates defendant was guilty of shoplifting under $950. We reverse the order denying the petition for resentencing. The matter is remanded with directions to enter a new order designating defendant’s conviction to be a misdemeanor, pursuant to section 1170.18, subdivisions (f) and (g).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.

We concur:


RAMIREZ
P. J.


McKINSTER
J.