Filed 8/24/17 P. v. Martin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Brandon Lamar Martin (defendant) appeals from the denial of his petition for resentencing under Penal Code section 1170.18,[1] a statute added by Proposition 47, the Safe Neighborhoods and Schools Act. Defendant asserts his burglary convictions are eligible for resentencing because they would have been convictions for shoplifting, punishable as misdemeanors under section 459.5, another statute added by Proposition 47. For the reasons set forth below, we reverse and remand for further proceedings.

factUAL AND PROCEDURAL BACKGROUND

On July 10, 2009, defendant entered a Smart & Final in Clovis, California, and purchased alcohol, candy, toilet paper, and other items. Defendant paid with a check, number 2241, and provided his identification to the cashier. The cashier manually entered the check information into the register and, believing the check was valid, allowed defendant to leave with the goods he had purchased when the transaction was complete. As a result, defendant was sold $192.26 worth of goods.

Defendant later returned to the store and again bought alcohol and snack items. He again paid with a check, number 2242, and provided his identification to the cashier. Defendant’s identification matched the information on the check and the clerk accepted the check believing it to be valid. As a result, defendant was sold $306.38 worth of goods.

Both checks were tied to the payroll account of a business called The Allergy Center. When the checks cashed, the bookkeeper for the company noticed both that they were out of order and that the company name was not on them. Defendant was not authorized to write checks on behalf of the company and was not known by the bookkeeper.

Defendant was convicted on six counts relating to the two forged checks; two counts of identity theft (§ 530.5, subd. (a)), two counts of second degree commercial burglary (§ 459, subd. (b)), and two counts of check forgery (§ 475, subd. (c)). In bifurcated proceedings, defendant was found to have several prior convictions and to have served several prior prison terms. Defendant received a sentence of six years in prison.

On December 15, 2014, defendant filed a petition pursuant to Proposition 47 to have his second degree commercial burglary convictions reduced to misdemeanor violations of section 459.5, and to be resentenced. His petition was later supplemented with additional briefing from counsel. On May 4, 2015, the trial court held a hearing and denied defendant’s petition noting that, because defendant was likely out of prison, the petition should be treated as an application for modification. The trial court concluded that, because forgery was “not a theft,” defendant had not entered the Smart & Final with the intent to commit theft and was therefore not eligible for relief under Proposition 47.

This appeal timely followed. We initially affirmed the trial court, concluding defendant’s petition failed to demonstrate a trespassory taking, as required by the shoplifting statute. Defendant 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

Defendant asserts he “entered Smart [&] Final with the intent to commit theft.” He argues the information charged him with unlawfully entering the store “ ‘with the intent to commit larceny or any felony,’ ” and theft by larceny is what he did. He contends the fact he obtained the merchandise by forgery does not change the analysis as “forgery was only the means utilized” to obtain the merchandise.[2]

Standard of Review and Applicable Law

“ ‘On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act . . . .’ [Citation.] ‘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).’ [Citation.]” (People v. Morales (2016) 63 Cal.4th 399, 404.)

Proposition 47 also created a new resentencing provision, to wit, section 1170.18. Under that statute, “[a] person currently serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with . . . [s]ection 459.5 . . . .” (Id., subd. (a).) If, on the other hand, “[a] person . . . [had] completed his or her sentence for a conviction, . . . 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 . . . to have the felony conviction or convictions designated as misdemeanors.” (Id., subd. (f).)

Section 459.5, a statute added by Proposition 47, created a new crime of shoplifting, a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary. Now codified, section 459.5, subdivision (a) provides in relevant part: “Notwithstanding Section 459 [(the burglary statute)], 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 shall be punished as a misdemeanor . . . .”

The record is viewed in the light most favorable to the trial court’s ruling with a presumption that the order is correct. (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) The court’s review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 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, supra, at p. 960.)

Appellant’s Conduct Qualifies as Larceny

After the release of our initial 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, defendant argues that, under Gonzales, his second degree burglary convictions are 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 fraudulently attempted to obtain goods worth less than $950 through what was believed by the victim to be a valid sale, which qualifies as theft by false pretenses. Defendant’s second degree burglary convictions, therefore, qualify for reduction. We remand so the trial court can determine whether defendant should be resentenced under the relevant statutory provisions.

disposition

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

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DETJEN, J.

WE CONCUR:

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HILL, P.J.

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PEÑA, J.