Filed 7/21/17 P. v. Hallgren CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES L. HALLGREN,

Defendant and Appellant.
D071240



(Super. Ct. No. SCN318141)

APPEAL from an order of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Reversed with directions.
Nancy Susan Brandt, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from an order denying Charles L. Hallgren's petition to have his second degree burglary conviction reclassified as a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18; the Safe Neighborhoods and Schools Act). The question presented is whether entering a commercial establishment with the intent to commit a nonlarceny theft of less than $950 can be classified as misdemeanor shoplifting under section 459.5.
After Hallgren filed his opening brief, the California Supreme Court issued its opinion in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). In that case the court held that section 459.5 could properly be applied to entries into commercial establishments, during business hours, with the intent to commit a nonlarceny theft under $950. The People properly concede Gonzales controls the outcome of this appeal and that Hallgren is entitled to the requested relief. In light of the concession, Hallgren has not filed a reply brief. We agree the Gonzales opinion dictates the outcome of this appeal. We will reverse the order denying the petition and remand with directions to grant the petition.
FACTS AND PROCEDURAL BACKGROUND
In 2013, Hallgren pleaded guilty to one count of commercial burglary (§ 459). He admitted one "strike" prior. Hallgren was sentenced to a determinate term of 32 months in prison. The remaining counts and allegations were dismissed.
In 2015, Hallgren petitioned for relief under section 1170.18. The petition was denied. On appeal, this court affirmed the denial of the petition without prejudice to refiling the petition with additional information to meet his burden of proof in light of People v. Sherow (2015) 239 Cal.App.4th 875. (People v. Hallgren (June 22, 2016, D068467) [nonpub. opn.].)
Hallgren filed a second petition for relief under section 1170.18. The parties agreed Hallgren entered a Rite-Aid store during regular business hours and committed a theft of less than $950 by using another person's stolen credit card. The trial court denied the petition because the theft was not a larceny.
DISCUSSION
In 2014 the voters adopted Proposition 47. That measure created a new offense called shoplifting under section 459.5. Under that section, entry into commercial establishments, during regular business hours, with the intent of committing a larceny of under $950 constitutes misdemeanor shoplifting. Section 1170.18 creates a mechanism under which a defendant may petition to have certain felony convictions reduced to misdemeanors and resentenced accordingly. Commercial burglaries that fall within the language of section 459.5 are one of the reduceable felonies.
One of the persistent issues that has existed since the enactment of section 459.5 is whether thefts, other than larceny could qualify for reclassification under section 459.5.
The court's decision in Gonzales, supra, 2 Cal.5th at page 869, has resolved the issue. Under Gonzales, Hallgren's entry into the Rite-Aid store to commit theft by false pretenses, in an amount under $950 constitutes "shoplifting" under section 459.5.
Thus, the parties correctly agree the trial court erred in denying Hallgren's petition for resentencing.
DISPOSITION
The order denying Hallgren's petition for resentencing under section 1170.18 is reversed. The trial court is directed to issue a different order granting the requested relief.



HUFFMAN, J.

WE CONCUR:




BENKE, Acting P. J.




HALLER, J.