Filed 8/28/17 P. v. Harrington CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Amber Alese Harrington contends on appeal that the trial court erred in refusing to designate her felony conviction for second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b))[1] as a misdemeanor pursuant to Proposition 47 (§ 1170.18). Since defendant filed her appeal, this issue has been resolved in her favor by People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). We reverse and remand.

BACKGROUND

On ­­­­­­­­­December 21, 2007, defendant entered a Bank of America with the intent to cash a forged check for $866.

On August 27, 2008, defendant pled no contest to second degree commercial burglary (§§ 459, 460, subd. (b); count 2) and possession of amphetamine (Health & Saf. Code, § 11377, subd. (a); count 4). On September 24, 2008, the trial court granted two years’ formal probation and ordered defendant to pay various fines and fees.

On March 16, 2009, defendant admitted violating probation, and the trial court revoked probation. On June 2, 2009, the trial court reinstated probation and extended it for an additional three years.

On August 18, 2015, defendant filed an application pursuant to section 1170.18 to designate her conviction for commercial burglary as a misdemeanor.

On March 21, 2016, the trial court granted the application as to the possession of amphetamine conviction, but denied it as to the second degree commercial burglary conviction, finding that offense did not qualify for relief.

On April 1, 2016, defendant filed a notice of appeal.

DISCUSSION

On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (Id. at p. 1091.)

“Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense 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. (§ 1170.18, subd. (a).) 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.’ (§ 1170.18, subd. (b)[, italics added].)” (People v. Rivera, supra, at p. 1092.) Furthermore, “[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).)

Recently, Gonzales addressed the new crime of “shoplifting,” as follows:

“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.” (Gonzales, supra, 2 Cal.5th at p. 862.)

Gonzales held that “the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft,” and thus the court concluded the “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.” Accordingly, the court concluded that the defendant could “petition for misdemeanor resentencing under Penal Code section 1170.18.” (Gonzales, supra, 2 Cal.5th at p. 862.)

In light of Gonzales, we will reverse and remand for reconsideration of defendant’s application for designation of her commercial burglary conviction as a misdemeanor under section 1170.18.

DISPOSITION

The trial court’s order denying defendant’s Penal Code section 1170.18 application for designation of the second degree commercial burglary conviction (count 2) as a misdemeanor is reversed. The matter is remanded to the trial court for further proceedings pursuant to Penal Code section 1170.18 and not inconsistent with this opinion.