Filed 4/27/17 P. v. Garrett CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant,

v.

RAMON JERMAINE GARRETT,

Defendant and Respondent.


E066470

(Super.Ct.No. RIF1304445)

O P I N I O N


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.
Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant and respondent, Ramon Jermaine Garrett, pled guilty to felony second degree burglary (count 1; Pen. Code, § 459) and admitted a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). On January 7, 2015, defendant filed a petition for resentencing pursuant to section 1170.18, which the court granted. The People appealed, and on February 26, 2016 we issued an opinion in which we reversed the trial court’s order.
On July 1, 2016, the court below held an additional hearing on defendant’s petition after issuance of the remittitur. The court granted the petition again. On appeal, the People contend defendant entered a bank with the intent to commit felony identity theft, which does not qualify as shoplifting under section 495.5. The People further argue that the bank in which defendant was convicted of unlawfully entering does not qualify as a commercial establishment under section 495.5. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Defendant entered a bank with a fraudulently printed check made out in the amount of $762.62, which defendant attempted to cash. The teller asked another bank employee to look at the check because the teller believed it to be a forgery. Defendant left the premises and was arrested shortly thereafter.
On May 28, 2013, the People charged defendant by felony complaint with entering a building “with intent to commit theft and a felony” (count 1; § 459) and forgery (count 2; § 475, subd. (c)). The People additionally alleged defendant had suffered three prior prison terms (§ 667.5, subd. (b)) and a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
On June 6, 2013, defendant pled guilty as noted above. As the factual basis for the plea, defendant admitted he “went into a building with the intent to steal something[.]” As provided in the plea agreement, the court sentenced defendant to four years’ imprisonment.
On January 7, 2015, defendant filed a petition for resentencing. In a response dated May 7, 2015, the People noted that defendant was not entitled to the relief requested. In a formal opposition filed on July 24, 2015, the People argued that defendant was ineligible for resentencing because he did not enter a commercial establishment within the meaning of section 495.5. On June 30, 2015, the court granted defendant’s petition, reducing his conviction for the substantive offense to a misdemeanor.
The People appealed and argued that “(1) defendant failed to meet his burden of establishing his eligibility for resentencing, (2) his conviction did not qualify for
 
resentencing because he entered a bank with the intent to commit felony identity theft, and (3) the bank was not a commercial establishment within the meaning of section 459.5.” We reversed, holding defendant “failed to meet his burden of establishing his eligibility for resentencing” because he had not established that he “entered a commercial building during regular business hours or that the value of the property was less than $950.”
On July 1, 2016, the court held another hearing on defendant’s petition. The parties stipulated to the facts. The court granted defendant’s petition, finding “that a bank is a commercial establishment.”
II. DISCUSSION
A. Identity Theft
The People contend defendant entered the bank with the intent to commit identity theft rather than shoplifting; thus, the People maintain defendant’s offense was distinct from those eligible for resentencing pursuant to section 1170.18. We disagree.
“In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. [Citation.] The Act also added several new provisions, including Penal Code section 459.5, which created the crime of shoplifting. Subdivision (a) provides: ‘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 intent to commit larceny is burglary.’ Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. [Citation.] Section 459.5, subdivision (b) contains an explicit limitation on charging: ‘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.’” (People v. Gonzales (2017) 2 Cal.5th 858, 863, fn. omitted.)
“A defendant may be eligible for misdemeanor resentencing under section 1170.18 if he ‘would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense . . . .’ [Citation.] Under section 459.5, shoplifting is a misdemeanor unless the defendant has suffered a disqualifying prior conviction. [Citation.] [¶] To be eligible for resentencing, defendant must demonstrate that his crime would have been a misdemeanor if the Act was in effect when he committed the offense.” (People v. Gonzales, supra, 2 Cal.5th at p. 875.)
In response to the People’s argument in Gonzales that “even if defendant engaged in shoplifting, he is still not eligible for resentencing because he also entered the bank intending to commit identity theft” (People v. Gonzales, supra, 2 Cal.5th at p. 876), the court concluded that “the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft . . . because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950.” (Id. at pp. 876-877; accord, People v. Abarca (2016) 2 Cal.App.5th 475, 483, review granted Oct. 19, 2016, S237106 [forgery relating to a check where the value of the check does not exceed $950 is punishable as misdemeanor shoplifting].) Thus, regardless of whether defendant entered the bank with the intent to commit identity theft, his commission of the offense of attempting to cash a forged check valued at less than $950 rendered him eligible for resentencing.
B. Commercial Establishment
The People additionally contend that a bank is not a commercial establishment within the meaning of section 495.5. We disagree.
A “business like U.S. Bank provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term.” (People v. Abarca, supra, 2 Cal.App.5th at p. 482; accord, People v. Gonzales, supra, 2 Cal.5th at p. 870.) Thus, a bank is a commercial establishment within the meaning of the statute. The court properly granted defendant’s petition for resentencing.
 
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

MILLER
J.