Filed 6/19/17 P. v. Wilson CA5
Opinion following rehearing






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AMY RENAE WILSON,

Defendant and Appellant.

F073318

(Super. Ct. No. F12905689)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Charles M. Bonneau III, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Amy Renae Wilson appeals from the denial of her petition for resentencing, filed pursuant to Proposition 47. Appellant contends she was eligible for resentencing on two prior convictions, one for identity theft (Pen. Code, § 530.5, subd. (a)) and one for second degree burglary (§§ 459, 460, subd. (b)). Appellant contends her identity theft conviction qualifies as petty theft under Proposition 47. She contends her second degree commercial burglary conviction is eligible because attempting to cash a fraudulent check constitutes shoplifting. For the reasons set forth below, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2012, appellant was charged in a ten count indictment with, relevant to this appeal, identity fraud and second degree commercial burglary. Appellant ultimately pled nolo contendere to these charges, along with a charge for being a felon in possession of a firearm, and received three years formal probation.
On May 21, 2015, while still on probation, appellant filed an application for reduction, which was properly treated as a petition for resentencing, seeking modification of her sentence. At the hearing on appellant’s petition, counsel agreed appellant’s second degree burglary charge arose when appellant attempted to cash a fraudulent $600 check at a California Check Cashing Company location. Appellant had previously and successfully cashed another $600 forged check at a different California Check Cashing Company location.
The trial court denied appellant’s petition. This appeal timely followed. We initially affirmed the trial court in full, but granted appellant’s motion for rehearing following the Supreme Court’s decision in People v. Gonzales (Mar. 23, 2017, S231171) 2 Cal.5th 858 (Gonzales).

DISCUSSION
Appellant argues the trial court erred by failing to recognize that attempting to cash a forged check qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47. Appellant also argues the trial court failed to recognize that identity theft is a form of theft, and therefore subject to potential resentencing if otherwise satisfying the petty theft statute.
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.) Under Gonzales theft by false pretenses, as well as other forms of nonlarcenous theft, satisfies the requirement of the shoplifting statute that one enter a commercial establishment “with intent to commit larceny.” (Gonzales, 2 Cal.5th at p. 862; § 459.5.)
Proposition 47 also added section 490.2, which provides that “[n]otwithstanding [s]ection 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor ....” Theft, as defined in section 484 remains unchanged by proposition 47 and states, “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.”
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, 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 was correct. (Ibid.)
Appellant’s Conduct Qualifies as Larceny Under the Shoplifting Statute
With respect to appellant’s claim that her second degree commercial burglary conviction is eligible for resentencing, appellant contends the crime of theft by false pretenses is a form of theft and thus constitutes larceny under the shoplifting statute. Around the time we issued our initial opinion in this matter, the Supreme Court issued its opinion in Gonzales, holding that the definition of shoplifting introduced under Proposition 47 includes nonlarcenous thefts. (Gonzales, supra, 2 Cal.5th at p. 862.) In the briefing following appellant’s request for rehearing, the People conceded that, under Gonzales, appellant’s second degree burglary conviction is eligible for resentencing. We agree. The facts as presented on appeal show appellant fraudulently attempted to obtain less than $950 through transactions presented as legitimate. Appellant’s second degree burglary conviction, therefore, qualifies for reduction.
“Identity Theft” Does Not Constitute Theft Under Section 484
We conclude, however, that the trial court properly denied appellant’s request for resentencing with regard to her conviction under section 530.5. Although commonly called identity theft, the actual crime is titled “Unauthorized use of personal identifying information of another person; attempt to obtain credit, goods, services, real property or medical information ....” (§ 530.5.) The crime is committed when one “willfully obtains personal identifying information ... of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.” (§ 530.5, subd. (a).) According to the definition, the victim of the identity theft is the person whose identity is compromised by the offender. To commit theft, however, the offender must take personal property or other similar tangible goods from the victim of the crime. (§ 484.) Appellant points us to no case suggesting the personal information of an identity theft victim constitutes property and, thus, its taking qualifies as theft under section 484, and we see no reason to so hold. As the commission of “identity theft” does not constitute theft under section 484, it is not properly categorized as either grand or petty theft under section 490.2 and, thus, commission of identity theft is not subject to resentencing under Proposition 47.
DISPOSITION
The order is affirmed in part and reversed in part and remanded for proceedings consistent with this opinion.