Filed 4/28/17 P. v. Echeverria CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ECHEVERRIA,
Defendant and Appellant.
D071010
(Super. Ct. No. SCS148350)
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Reversed and remanded with directions.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
2
In April 2000, appellant, David Echeverria, entered a guilty plea to second degree
burglary (Pen. Code,1 § 459). Pursuant to the agreement, appellant was sentenced to a
three-year term.
In 2015, appellant filed a petition pursuant to Proposition 47 (§ 1170.18, Safe
Neighborhoods and Schools Act), seeking to have his conviction reclassified as
shoplifting under section 459.5. The trial court denied the petition, finding the theft by
means of false pretenses did not qualify for reclassification.
Echeverria appeals contending the trial court erred in its interpretation of section
459.5. Considering the recent decision by our Supreme Court, People v. Gonzales (2017)
2 Cal.5th 858 (Gonzales), it is clear the entry into a commercial establishment with the
intent to commit a theft of under $950 qualifies as shoplifting as newly defined in section
459.5.2 Accordingly, we will reverse the order denying appellant's petition and remand
the matter to the trial court with directions to enter a different order granting the
requested relief.

1 All further statutory references are to the Penal Code unless otherwise specified.
2 Section 459.5 provides: "(a) Notwithstanding Section 459, 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
prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section
1170. [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as
shoplifting. No person who is charged with shoplifting may also be charged with burglary
or theft of the same property."
3
STATEMENT OF FACTS
The facts of the underlying offense are not in dispute. They are taken from police
reports entered into evidence for this petition. In summary, appellant entered Grainger
Corporation, using a false name and falsely claiming to be an employee of the Helm
Corporation. Prior to his entry, someone had called Grainger to advise that appellant was
going to arrive to pick up a drill kit, valued at $591.33, to be charged to the Helm
Corporation. Prior to appellant arriving, Grainger determined Helm did not order the
drill kit and the person identified did not work for that company.
Appellant arrived at Grainger and obtained the drill kit using the described false
representations. Grainger had alerted police and appellant was arrested upon leaving the
business.
DISCUSSION
As reflected in the facts cited above, appellant entered an open commercial
establishment with the intent of obtaining less than $600 in merchandise by means of
false pretenses. The parties dispute whether such an offense qualifies as shoplifting
under section 459.5. Since the briefing in this case was completed, our Supreme Court
issued its opinion in Gonzales, supra, 2 Cal.5th 858. There the court dealt with a
defendant who entered a bank, during business hours and cashed forged checks in an
amount less than $950. In that case the high court concluded the offense qualified as
shoplifting. The court explained that theft by false pretenses in that case was equivalent
to larceny as that term is used in section 459.5. The Gonzales opinion is controlling in
this case and we will apply it to the current offense.
4
Because Gonzales, supra, 2 Cal.5th 858 was issued after the close of briefing in
this case, we offered the parties the opportunity to file supplemental letter briefs on the
issue of the impact of Gonzales on the current dispute. Counsel for both parties have
responded and concur that the holding in Gonzales is controlling on the outcome of this
opinion.
Considering the holding in Gonzales, supra, 2 Cal.5th 858, it is clear the trial court
erred in denying appellant's petition.
DISPOSITION
The order of the superior court denying appellant's petition under section 1170.18
is reversed. The matter is remanded to the superior court with directions to grant the
relief requested and to resentence as may be appropriate.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.