Filed 8/21/17 P. v. Gittens CA5

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.

Sylvia W. Beckham, 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, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Amanda D. Cary, and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Gloria Denise Gittens appeals from the partial denial of her petition for resentencing, filed pursuant to Proposition 47. Appellant contends she was eligible for resentencing on her various convictions for second degree burglary (Pen. Code, §§ 459, 460, subd. (b))[1] because she entered commercial establishments with the intent to commit both identity theft and theft of merchandise. For the reasons set forth below, we reverse and remand for further proceedings.

factUAL AND PROCEDURAL BACKGROUND

In May 2008, appellant was charged by way of an information with 99 criminal counts, including charges for, among others, second degree burglary (§§ 459, 460, subd. (b)), identity theft (§ 530.5, subd. (a)), petty theft with priors (§ 666), and receiving stolen property (§ 496, subd. (a)). It was further alleged that appellant had suffered several prior convictions.

In July 2008, appellant pled guilty to all 99 counts and admitted to all priors and enhancements, including two prior strikes. In exchange, appellant received a 36-year lid on her sentence, with the court indicating it would set aside her two prior strikes for the purposes of sentencing. Due to certain legal issues unrelated to this appeal, the People later dismissed counts 81, 87, and 95 through 98.

Appellant was subsequently sentenced to an aggregate term of 36 years. A principal term of 10 years (six years plus four 1-year enhancements) was imposed for a first degree burglary charge, followed by a series of either eight- or 16-month consecutive sentences for several of the second degree burglary and identity theft charges. Several other charges, including all the petty theft charges, which carried two-year sentences were ordered to run concurrently.

With respect to the conduct underlying appellant’s charges, appellant regularly stole from a substantial number of people. She used her victims’ information, checks, and credit cards to purchase goods at various stores and obtain money from ATM machines.

Following enactment of Proposition 47, appellant petitioned to have her convictions reduced to misdemeanors. The petition consisted of a single-page request for review. The trial court held a hearing on appellant’s petition, where appellant was represented by the public defender. The parties stipulated to the use of the prior probation report to determine the facts of appellant’s offense and reviewed the 94 offenses involved.

The trial court found appellant was eligible for a reduction on counts 8, 34, 46 through 48, 50, 55, 56, 58 through 60, 75 through 80, 82 through 86, 88 through 94, and 99, all of which were petty theft or receiving stolen property charges that were previously set as concurrent sentences, resulting in no reduction of appellant’s aggregate sentence. The remaining charges were found to be ineligible for various reasons. With respect to the second degree burglary charges which were denied resentencing,[2] the trial court relied on two orders from other trial court cases holding that entering a store with the intent to commit identity theft or theft by false pretenses would not qualify as shoplifting under Proposition 47, and that appellant held the burden of proof on eligibility.

This appeal timely followed. We initially affirmed the trial court without prejudice to appellant filing a second petition because appellant’s initial petition had failed to support her claims, but noted that failure could very well be the result of confusion, as her petition was filed before the courts provided the substantial guidance on her burden to demonstrate eligibility that has followed. At the same time, we concluded appellant’s petition failed to demonstrate a trespassory taking, as required by the shoplifting statute. Appellant sought review in the Supreme Court, which ultimately ordered this court “to vacate its decision and to reconsider the cause in light of the decision in People v. Gonzales (2017) 2 Cal.5th 858” (Gonzales).

Discussion

Appellant argues the trial court erred by failing to recognize that the newly enacted shoplifting statute at section 459.5 covers “larceny in all its forms.” As such, appellant contends the trial court wrongly concluded that entering a store with the intent to fraudulently obtain property does not qualify 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. Under section 1170.18, a person “currently serving” a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be “resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.” ’ ” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).)

“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 trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of introducing facts sufficient to demonstrate eligibility. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)

The court’s review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.) 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 is correct. (Ibid.)

Appellant’s Conduct Qualifies as Larceny

After the release of our opinion in this matter, the Supreme Court issued its opinion in Gonzales, holding that the definition of shoplifting introduced under Proposition 47 encompasses non-larcenous thefts. (Gonzales, supra, 2 Cal.5th at p. 862.) In the briefing following transfer to this court, the People concede that, under Gonzales, appellant’s second degree burglary convictions could be eligible for resentencing. We agree.

Under Gonzales, theft by false pretenses satisfies the requirement of the shoplifting statute that one enter a commercial establishment “with intent to commit ‘larceny.’ ” (Gonzales, supra, 2 Cal.5th at p. 862; see § 459.5, subd. (a).) The facts as presented on appeal show appellant attempted to purchase goods through fraudulent transactions, which qualifies as theft by false pretenses. Appellant’s second degree burglary convictions, therefore, could qualify for reduction if the value of the goods at issue is less than $950 and appellant satisfies the remaining statutory requirements.

In light of this fact, appellant requests we remand the matter to the trial court so that she can attempt to demonstrate the value of the goods at issue was less than $950 for each relevant charge. The People oppose, relying on our prior analysis that noted, correctly, that the record contained no evidence of the value of the goods involved or other statutory requirements for shoplifting. The People request we again affirm the denial without prejudice to filing another petition.

Although we noted in our prior analysis that the record was devoid of certain facts, a point which appellant concedes, we also noted that appellant’s petition arose before substantial guidance on how to proceed had been given by the courts. There was, thus, a reasonable probability that appellant did not understand the burden imposed upon her to demonstrate eligibility and, consequently, was not prepared to demonstrate one or more of her various convictions qualified as shoplifting. Moreover, the record demonstrates appellant’s second degree burglary convictions were denied based on the trial court’s conclusion that entering a building with the intent to commit identity theft precludes a finding one entered with the intent to commit larceny. Gonzales has since rejected this analysis. (Gonzales, supra, 2 Cal.5th at p. 876.) Thus, in the colloquy between the court and appellant, appellant received no opportunity to offer proof of eligibility on the relevant charges.

In light of these facts, we remand for the court to consider, in the first instance, the value of the goods at issue and any other related statutory issues, including whether appellant should be resentenced under the relevant statutory provisions with respect to counts 2 through 4, 24 through 33, 35, 38, 49, 51 through 54, 57, and 61 through 66.

disposition

The order is reversed and the matter remanded for further proceedings consistent with this opinion.