Filed 4/11/17 P. v. Sharpe CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MITCHELL SHARPE,

Defendant and Appellant.
H043196
(Santa Clara County
Super. Ct. No. C1484691)
On June 19, 2014, appellant Mitchell Sharpe pleaded no contest to six counts, including felony second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), and four misdemeanors pursuant to a plea bargain. The court placed defendant on three years of formal probation and imposed a six-month, probationary county jail term.
While still on formal probation, appellant petitioned for relief with regard to the two felony convictions pursuant to section 1170.18. (See People v. Garcia (2016) 245 Cal.App.4th 555, 559.) Section 1170.18 was added by Proposition 47, known as the Safe Neighborhoods and Schools Act. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73.) “Proposition 47, an initiative measure the electorate passed in November 2014, reduced certain drug-related and property crimes from felonies to misdemeanors. The measure also provided that, under certain circumstances, a person who had received a felony sentence for one of the reduced crimes could be resentenced and receive a misdemeanor sentence.” (People v. Morales (2016) 63 Cal.4th 399, 403.)
Absent a disqualifying conviction (§ 1170.18, subd. (i)), section 1170.18 “permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions.” (People v. Gonzales (March 23, 2017, S231171) ___ Cal.5th ___, ___ [2017 Cal. LEXIS 2091 *4] (Gonzales), fn. omitted; § 1170.18, subd. (a).) “If the offense committed by an eligible defendant would have been a misdemeanor under the Act, resentencing is required 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).)” (Gonzales, supra, at pp. ___ [2017 Cal. LEXIS 2091 *4-5], fn. omitted.)
The trial court denied defendant’s petition as to his burglary conviction, and refused to resentence the conviction as misdemeanor shoplifting, on the ground that defendant did not enter the store with the intent to commit larceny and consequently could not show that his conduct would have constituted shoplifting under section 459.5. On appeal, appellant asserts that the trial court erred in denying his petition as to the felony burglary conviction because his underlying conduct, even if theft by false pretenses, would have constituted misdemeanor shoplifting if committed when Proposition 47 was in effect.
Section 459.5, which was also added by Proposition 47 (Voter Information Guide, supra, text of Prop. 47, § 5, p. 71), defines shoplifting “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).” (§ 459.5, subd. (a).) On appeal, it is undisputed that appellant was convicted of felony burglary based on his conduct of entering a Safeway store and attempting to pay for one or more gift cards with counterfeit bills.
Recently, in Gonzales, the California Supreme Court resolved the split of appellate authority on the question whether the specific intent required to prove shoplifting may be satisfied by the specific intent to commit nonlarcenous thefts, including theft by false pretenses, even though the statute expressly refers to only the “intent to commit larceny” (§ 459.5). The court held that “the electorate . . . intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft.” (Gonzales, supra, ___ Cal.5th at p. ___ [2017 Cal. LEXIS 2091 *2].) Accordingly, the court determined that 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” and that it was proper for the defendant to “petition for misdemeanor resentencing under Penal Code section 1170.18.” (Ibid.)
It is clear that, under the holding of Gonzales, the trial court in this case erred by categorically rejecting defendant’s petition for resentencing of his burglary conviction under section 1170.18 on the ground that defendant entered with the intent to commit a nonlarcenous theft. The People assert that if appellant is entitled to reduce his burglary conviction to a misdemeanor under section 1170.18, they are entitled to withdraw from the negotiated plea agreement because otherwise the People will be deprived of the benefit of the bargain. The California Supreme Court has rejected such an argument, holding “the People are not entitled to set aside the plea agreement when [a] defendant seeks to have his sentence recalled under Proposition 47.” (Harris v. Superior Court (2016) 1 Cal.5th 984, 993.) The Harris decision binds this court and is dispositive of the People’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“The decisions of [the California Supreme Court] are binding upon and must be followed by all state courts of California”].)
DISPOSITION
The order denying appellant’s petition for resentencing of his second degree burglary conviction under section 1170.18 is reversed. The matter is remanded to the trial court for further proceedings.




_________________________________
ELIA, ACTING P.J.

WE CONCUR:



_______________________________
BAMATTRE-MANOUKIAN, J.



_______________________________
MIHARA, J.