Filed 4/18/17 P. v. Nunn CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIENNE NUNN,

Defendant and Appellant.

G051742

(Super. Ct. No. 05NF4739)

ORDER DENYING REHEARING
PETITION AND MODIFYING
OPINION; CHANGE IN JUDGMENT

The opinion filed herein on March 22, 2017, is hereby modified in the following particulars:
1. On the caption page, delete the sentence that reads, “Affirmed in part and reversed in part” and replace it with, “Affirmed in part, reversed in part, and remanded.”
2. In the first paragraph on page 2, delete the text that begins with, “We agree with the trial court” and ends with, “under the initiative” and replace it with, “We find these convictions were eligible for a reduction to misdemeanors under Proposition 47. Accordingly, we reverse the trial court’s rulings to the contrary and remand for further proceedings.”
3. In the first paragraph of the discussion section on page 3, delete the second sentence that begins with, “We agree . . .” and replace it with, “The contention has merit.”
4. On pages 7 and 8, delete all of the text under the heading, “Unlawful Acquisition of Credit Card Information” and replace it with, “Recently, in In People v. Romanowski (Mar. 27, 2017, S231405) ___ Cal.5th ___ [2017 Cal. LEXIS 2326], the California Supreme Court determined Proposition 47 reduces the punishment for unlawful acquisition of credit card information under section 484e, subdivision (d), so long as the value of the information does not exceed the $950 limit set forth in section 490.2. The court also made clear valuation turns on the reasonable and fair market value of the information in question. In this case, the court rejected appellant’s request to reduce her convictions for unlawful acquisition of credit card information without getting into the issue of valuation. Under these circumstances, we agree with the parties the matter must be remanded for an evidentiary hearing on this issue.”
5. Under the DISPOSITION heading on page 8, delete all the text and replace it with: “The trial court’s order respecting appellant’s petition for relief under Proposition 47 is reversed to the extent it denied appellant’s request to reduce her convictions for burglary and unlawful acquisition of credit card information to misdemeanors. The matter is remanded for the court to conduct an evidentiary hearing on the value of the credit card information appellant unlawfully acquired. In all other respects, the order is affirmed.”






This modification DOES effect a change in judgment.
The petition for rehearing is DENIED.



BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.

Filed 3/22/17 P. v. Nunn CA4/3 (unmodified version)






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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIENNE NUNN,

Defendant and Appellant.


G051742

(Super. Ct. No. 05NF4739)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Thomas A. Glazier, Judge. Affirmed in part and reversed in part.
Russell S. Babcock, 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, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal involves the application of Proposition 47 to appellant’s felony convictions for commercial burglary and unlawful acquisition of credit card information. We agree with the trial court that there is no basis for reducing appellant’s credit card convictions to misdemeanors under Proposition 47. However, unlike the trial court, we find appellant’s burglary convictions qualify for a reduction to misdemeanor shoplifting under the initiative.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2006, appellant pleaded guilty to three counts of second degree commercial burglary for unlawfully entering three different hotels with the intent to commit larceny. (Pen. Code, §§ 459, 460, subd. (b).) Appellant also pleaded guilty to three counts each of unlawful acquisition of credit card information (§ 484e, subd. (d)), fraudulent use of a credit card (§ 484g) and false impersonation (§ 529). In addition, appellant admitted she was on bail when she committed those crimes (§ 12022.1) and had previously served a term in prison (§ 667.5, subd. (b)).
Appellant offered the following facts as the basis for her plea: “In Orange County, California, on 10/21/05, 10/25/05 & 11/1/05, I willfully & unlawfully entered a commercial building with intent to steal, acquired access card information with intent to defraud, used that information to obtain goods & services in excess of $400, & falsely impersonated a person . . . .” After accepting appellant’s guilty plea, the trial court sentenced her to 16 months in prison.
Following the passage of Proposition 47 in the fall of 2014, appellant petitioned to have her convictions (except those for false impersonation) reduced from felonies to misdemeanors. The prosecution did not oppose a reduction on the counts involving appellant’s fraudulent use of a credit card. However, it did oppose a reduction on the burglary counts and the counts involving appellant’s unlawful acquisition of credit card information. At the motion hearing, the prosecutor argued a reduction on those counts was not authorized under Proposition 47 because appellant used stolen credit cards to pay for hotel rooms she utilized. The trial court agreed. While it reduced appellant’s convictions for fraudulent use of a credit card to misdemeanors, it refused to reduce appellant’s other felony convictions.
DISCUSSION
Appellant contends the trial court erred in failing to reduce her convictions for burglary and unlawful acquisition of credit card information to misdemeanors. We agree appellant’s burglary convictions qualify for a reduction under Proposition 47 but otherwise uphold the trial court’s decision.
Overview of Proposition 47
“‘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 added the crime of shoplifting, which is generally punishable as a misdemeanor. (§ 459.5.) The measure allows persons convicted of a felony to have their conviction reduced to a misdemeanor if they would have been guilty of a misdemeanor had the proposition been in effect when their crimes occurred. (§ 1170.18.)
Appellant’s Burglary Convictions
Appellant argues her burglary convictions are based on conduct that falls within the definition of shoplifting, and therefore the trial court should have reduced those convictions to misdemeanors. We agree.
The crime of shoplifting is set forth in section 459.5, which provides: “Notwithstanding [s]ection 459 [defining burglary], 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, except that a person with one or more [specified] prior convictions . . . may be punished [up to three years in jail].” (§ 459.5, subd. (a).)
Respondent puts forth several arguments as to why appellant’s burglary convictions should be deemed to fall outside the scope of section 459.5. First, relying on People v. Bias (2016) 245 Cal.App.4th 302 (Bias), respondent claims appellant entered the subject hotels with the intent to commit the crime of false impersonation, not larceny. However, after respondent’s opening brief was filed, the California Supreme Court granted review of Bias. (Ibid., review granted May 11, 2016, S233634.) That grant forecloses consideration of the Bias decision.
In any event, the record contradicts respondent’s characterization of the underlying intent supporting appellant’s burglary convictions. It is true that appellant committed false impersonation during each of the three criminal episodes at issue here. But that offense was not the basis for her burglary convictions. We know that because the complaint and information charged appellant with entering the subject hotels with the intent to commit larceny, and the factual basis for appellant’s guilty plea was that she entered the hotels with the intent to steal. On this record, it would be unreasonable to conclude appellant’s burglary convictions were based on the intent to commit some other offense.
Nevertheless, respondent claims appellant did not commit the type of larceny that is contemplated by the shoplifting statute. According to respondent, the statute only applies to acts that fit the commonly understood meaning of shoplifting, i.e., taking goods from a retail store without payment. It should not encompass the situation presented here, where the defendant acquires a hotel room by means of false pretenses.
The problem with respondent’s argument is that the text of the shoplifting statute does not support such a limiting interpretation. Rather, the statute speaks in broad terms to the situation where the defendant enters a commercial establishment “with intent to commit larceny.” (§ 459.5, subd. (a).) From a descriptive standpoint, larceny is synonymous with theft-related crimes. (§ 490a.) Larceny, it turns out, is also the term used to describe the mens rea requirement for the crime of burglary. (See § 459 [defining burglary to include the situation where the defendant enters a specified building “with intent to commit grand or petit larceny”].) Why is that significant? Because in analyzing the crime of burglary, our Supreme Court has held the intent to commit theft by false pretenses will support a conviction for that offense. (People v. Parson (2008) 44 Cal.4th 332, 354; accord, People v. Nguyen (1995) 40 Cal.App.4th 28, 31.) If the intent to commit theft by false pretenses will support a conviction for burglary, we see no reason why it should not suffice to support a conviction for shoplifting, given the similarity of language used to describe the two offenses. (People v. Fusting (2016) 1 Cal.App.5th 404, 410 [finding “no indication that a distinction was intended to be made between sections 459 and 459.5 in regard to the interpretation of the term ‘larceny.’”].)
Respondent argues that even if the shoplifting statute’s reference to larceny encompasses theft by false pretenses, appellant is not entitled to have her burglary convictions reduced to misdemeanors because she failed to prove the other elements of the statute, namely that she 1) entered a “commercial establishment,” 2) during its “regular business hours” to 3) commit a theft involving less than $950. (§ 459.5, subd. (a).) However, the record indicates appellant was able to obtain a room at the hotels she victimized after tendering payment with a credit card. This shows the hotels were commercial enterprises that were open for business when appellant carried out her crimes. (See In re J.L. (2015) 242 Cal.App.4th 1108, 114 [defining a commercial establishment as one that is primarily engaged in commerce].) Thus, the first two requirements were met.
As for the value of the hotel rooms appellant obtained, respondent is correct the record is bereft of any direct evidence concerning that issue. But we do know the trial court reduced appellant’s felony convictions for fraudulent use of a credit card to misdemeanors. As appellant notes, and respondent concedes, that reduction was likely based on section 490.2, which was added to the Penal Code pursuant to Proposition 47. Section 490.2 provides, “Notwithstanding [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[.]” (§ 490.2, subd. (a).) If appellant’s convictions for fraudulent use of a credit card qualified for a reduction to misdemeanors under section 490.2, the value of the rooms she obtained by virtue of this fraud must not have exceeded $950. The value of the loss from the burglary, which was part and parcel of the credit card fraud, could not have exceeded that amount.
In sum, the record supports the conclusion appellant’s burglary convictions were based on her entering a commercial establishment during regular business hours with the intent to steal less than $950. As such, she is entitled to have those convictions reduced to misdemeanors under Proposition 47.

Unlawful Acquisition of Credit Card Information
Appellant contends her convictions for unlawful acquisition of credit card information under section 484e, subdivision (d) (section 484e(d)) also fall within the ambit of section 490.2, and therefore they too must be reversed to misdemeanors. We cannot agree.
Section 484e(d) provides, “Every person who acquires or retains possession of access card account information with respect to an access card validly issued to another person, without the cardholder’s or issuer’s consent, with the intent to use it fraudulently, is guilty of grand theft.” (Italics added.) Seizing on the italicized words, appellant contends the statute comes within the terms of section 490.2 because, as noted above, section 490.2’s opening clause states it applies notwithstanding any other provision of law defining grand theft. (§ 490.2, subd. (a).)
But the fact – if it be such – that section 484e(d) defines grand theft of a previously undefined type does not necessarily bring it within the ambit of section 490.2. Section 490.2 explicitly provides it applies only to “obtaining any property by theft.” (Italics added.) So while “retain[ing] possession of access card account information with respect to an access card validly issued to another person . . .” may constitute a form of theft, it is not a form of theft for which section 490.2 provides relief. That section applies only to instances where the card was “obtained by theft,” and that is not the case hypothecated by Nunn’s suggestion that maybe she obtained the card legitimately but merely retained it with illicit intent. That type of grand theft would not qualify for relief.
In finding appellant’s credit card convictions ineligible for reduction, we recognize Proposition 47 was designed to reduce prison spending by granting leniency to minor offenders while ensuring more serious offenders remain subject to felony punishment. (See Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) Obviously, people who unlawfully acquire or retain credit card information are not the most dangerous criminals on the planet. But their conduct often leads to identity theft and financial loss, which can irreparably damage lives. In this era of ever-increasing reliance on digital information, we are not confident the drafters of Proposition 47 or the voters of this state intended violators of section 484e(d) to be included within the terms of the initiative.
DISPOSITION
The trial court’s order respecting appellant’s petition for relief under Proposition 47 is reversed to the extent it denied appellant’s request to reduce her
burglary convictions to misdemeanors. In all other respects, the order is affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.