Filed 4/13/17 P. v. Laguna CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD MENA LAGUNA, JR.,

Defendant and Appellant.


E065959

(Super.Ct.No. RIF137406)

OPINION


APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed.
David Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court denied the Proposition 47 petition for resentencing of defendant and appellant Richard Mena Laguna Jr. (Pen. Code, § 1170.18.) Defendant asserts the trial court erred by not reducing his conviction to a misdemeanor. We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
In June 2007, the People charged defendant with burglary, in that defendant entered a building “with intent to commit theft and a felony.” On July 16, 2008, defendant pled guilty to one count of second degree burglary. (§ 459.) When taking defendant’s plea, the trial court asked, “[Defendant], is it true that on or about March 13th, 2007, in the county of Riverside, that you did willfully and unlawfully enter a certain building located at 9155 Jurupa Road, Glen Avon, with the intention to commit theft?” Defendant responded, “Yes.” The trial court sentenced defendant to prison for a term of one year four months.
On August 18, 2015, defendant petitioned the trial court to reduce his burglary conviction (§ 459) to a misdemeanor (§ 1170.18). Defendant asserted the value of the property at issue was less than $951 and that he completed his sentence for the offense. The prosecutor responded to the petition by requesting a hearing be set to determine the value of the property at issue. At the hearing, the prosecutor stated the burglary consisted of entering a grocery store with the intent to use a counterfeit $10 bill. The prosecutor asserted the offense did not qualify for a reduction to a misdemeanor because the underlying crime was forgery (§ 470). Defendant’s trial counsel responded that defendant entered a grocery store and purchased $8.60 worth of goods with a counterfeit $10 bill.
The trial court said, “[Forgery] 470 is included.” The trial court then said, “A counterfeit bill is not any of the instruments listed.” The court continued, “I am going to deny the petition in spite of the Third District case, which I think is, what shall I say, interestingly reasoned. And there is the conflict. And so the Supreme Court will resolve it, but I will deny it today.” The trial court denied defendant’s petition.
DISCUSSION
Defendant contends his crime meets the definition of shoplifting (§ 459.5), and therefore, the trial court erred by denying his petition.
No evidence was submitted at the trial court, so we will apply the de novo standard of review. (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) Burglary is the entering of a shop with the “intent to commit grand or petit larceny or any felony.” (§ 459.) Notwithstanding that definition, “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).” (§ 459.5.)
Defendant was charged with burglary, in particular the entering of a building with the “intent to commit theft and a felony.” (§ 459.) When providing the factual basis for his plea, defendant admitted he entered the building with the intent to commit theft. In opposition to defendant’s petition, the prosecutor asserted defendant entered the building with the intent to commit forgery via the passing of a counterfeit $10 bill.
Possessing counterfeit bills with the intent to pass the counterfeit currency is a misdemeanor if the amount of the counterfeit bills is $950 or less. (People v. Mutter (2016) 1 Cal.App.5th 429, 436; People v. Maynarich (2016) 248 Cal.App.4th 77, 80-81.) Burglary requires theft or a felony as the underlying offense. (§ 459.) Defendant passed or attempted to pass a counterfeit $10 bill. Therefore, defendant’s intended offense would be misdemeanor forgery because the value of the counterfeit currency was less than $950. Misdemeanor forgery cannot be the underlying offense for the burglary conviction because it is not a felony. Therefore, the underlying crime for the burglary is not forgery.
Larceny includes theft by false pretenses. (People v. Fustig (2016) 1 Cal.App.5th 404, 409 (Fustig).) Theft by false pretenses fits within the larceny requirement for shoplifting as defined by section 459.5. (Fustig, at p. 411; People v. Gonzales (2017) ___ Cal.5th ___ [2017 Cal. LEXIS 2091, *2].) The elements of theft by false pretenses are “‘(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.’” (People v. Williams (2013) 57 Cal.4th 776, 787.)
When defendant entered the grocery store he intended to steal items by using a counterfeit $10 bill. The false pretense would be the counterfeit bill. The intent to defraud would be the intent to use the counterfeit bill. Defendant intended for the store’s property to be transferred to him. Thus, the underlying crime for defendant’s offense is larceny/theft by false pretenses. The underlying crime is larceny and the amount at issue is less than $951. Therefore, the trial court erred by denying defendant’s petition.
The People contend the term “larceny,” as used in the shoplifting statute (§ 459.5) does not include theft by false pretenses. The People assert the electorate intended shoplifting to have its colloquial meaning of “lifting items that are offered for sale at a shop”—the electorate did not intend to include more sophisticated types of theft, such as theft by false pretenses.
When interpreting a statute, we begin with the plain language, giving the words their usual and ordinary meanings. If there is ambiguity in the language, then we may turn to extrinsic aids, such as legislative history, public policy, and the purpose of the statute. (In re Marriage of Davis (2015) 61 Cal.4th 846, 851-852.)
We understand the People as asserting “larceny” is a complicated term with a complex legal meaning, but “shoplifting” is a simple term with a common colloquial meaning, and the electorate intended to equate larceny with shoplifting. Thus, the People are asserting the language of the statute is ambiguous. To the extent the language is ambiguous, we interpret the statute so as to harmonize it with other sections of the law. (Brown v. Mortensen (2011) 51 Cal.4th 1052, 1067.) The electorate made forgery of less than $951 a misdemeanor, as well as making a misdemeanor of the offense of drafting a check of less than $951 when there are insufficient funds in the account. “To provide misdemeanors for that type of theft, [i.e., forgery], but not for theft by false pretenses, would contradict the voters’ general intent of requiring misdemeanors for nonserious, nonviolent theft crimes.” (Fustig, supra, 1 Cal.App.5th at p. 411.)
In other words, to the extent the People are correct that the plain language of the statute is ambiguous, we must interpret the statute in a manner that harmonizes it with the rest of the law. For forgery to be a misdemeanor, but theft by false pretenses to be a felony, is contradictory because they both involve fraud and taking less than $951. Interpreting larceny in section 459.5 so as to include theft by false pretenses aids the law in being more consistent. This also keeps the definition of larceny in the shoplifting statute (§ 459.5) consistent with the definition of larceny in the burglary statute (§ 459). (Fustig, supra, 1 Cal.App.5th at p. 411; see also People v. Williams, supra, 57 Cal.4th at p. 797 [“the Legislature intended the common law crime of theft by false pretenses—now a form of theft consolidated into the unified statutory offense of ‘theft’ found in section 484, subdivision (a)—to be treated the same as theft by larceny or theft by trick”].)
DISPOSITION
The order denying defendant’s petition is reversed. The trial court is directed to grant defendant’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


HOLLENHORST
Acting. P. J.


McKINSTER
J.