Filed 5/2/17 P. v. Hernandez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO HERNANDEZ,
Defendant and Appellant.
2d Crim. No. B271356
(Super. Ct. No. 2009015559)
(Super. Ct. No. 2011009576)
(Ventura County)
Mario Hernandez appeals a postjudgment order
denying his Proposition 47 applications to reclassify his seconddegree
burglary convictions (Pen. Code, § 459)1
as misdemeanor
convictions. (§ 1170.18, subd. (f).) The trial court found that
appellant’s use of stolen and altered credit cards to make
purchases in the amount of $950 or less at a commercial
establishment during regular business hours did not meet the
statutory definition of misdemeanor shoplifting as set forth in

1
All statutory references are to the Penal Code.
2
section 459.5, subdivision (a). We reverse. (People v. Gonzales
(2017) 2 Cal.5th 858, 862.)
Procedural History
Case No. 2009015559: In 2009, appellant attempted
to purchase a Sony Playstation-3 and video game at a
Blockbuster store with an altered prepaid Mastercard (count 1).
Appellant used the same MasterCard to purchase two pairs of
shoes ($50.30) at Payless (count 2), and hair clippers ($34.99) and
a digital camera ($129.99) at Rite-Aid (count 3). Appellant pled
guilty to three counts of second degree burglary (§ 459) and was
granted probation.
Case No. 2011009576: In 2011, appellant pled guilty
to identity theft (§ 530.5, subd. (a)) and second degree commercial
burglary (§ 459). The probation report stated that appellant
entered a Pep Boys store and made two purchases in the amount
of $313 and $63.83 with a stolen credit card. Appellant was
sentenced to two years state prison. In case no. 2009015559, the
trial court terminated probation and sentenced appellant to two
years state prison, to be served concurrent to the two-year
sentence in case no. 2011009576.
Appellant completed his sentence and filed
applications to reduce the four burglary convictions to
misdemeanor convictions under section 459.5. (§ 1170.18, subd.
(f).)2
Denying the applications, the trial court concluded that use

2
Section 1170.18, subdivision (f), which was added by
Proposition 47, provides: “A person who has completed his or her
sentence for a conviction, whether by trial or plea, of a felony or
felonies who would have been guilty of a misdemeanor under this
act had this act been in effect at the time of the offense, may file
an application before the trial court that entered the judgment of
3
of an altered or stolen credit card to buy goods is theft by false
pretenses, and is not a section 459.5 theft-related offense eligible
for Proposition 47 relief.
People v. Gonzales
Section 459.5, which was enacted pursuant to
Proposition 47, states in pertinent part: “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).” (§ 495.5, subd. (a).)
Subdivision (b) provides: “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.” (§ 495.5, subd. (b).)
In People v. Gonzales, supra, 2 Cal.5th 858, our
Supreme Court concluded that the electorate, in passing
Proposition 47, intended section 459.5 to apply to the crime of
theft by false pretenses. (Id. at p. 862.) The court held that
“defendant’s act of entering a bank to cash a stolen [and forged]
check for less than $950, traditionally regarded as a theft by false
pretenses rather than larceny, now constitutes shoplifting under
the statute.” (Ibid.) Because defendant completed the felony
sentence, he could petition to have his conviction designated a
misdemeanor. (Ibid.; § 1170.18, subds. (f) & (g).)
Under principles of stare decisis, we are bound by
People v. Gonzales, supra, 2 Cal.5th 858. (Auto Equity Sales, Inc.

conviction in his or her case to have the felony conviction or
convictions designated as misdemeanors.”
4
v. Superior Court (1962) 57 Cal.2d 450, 455.) Reclassifying
appellant’s second degree burglary convictions as misdemeanors
is consistent with the electorate’s stated reasons for enacting
Proposition 47. (See People v. Gonzales, supra, 2 Cal.5th at pp.
869-871.)
Disposition
The order denying the applications to reduce
appellant’s second degree burglary convictions to misdemeanor
convictions is reversed. Because the applications satisfy the
criteria set forth in section 1170.18, subdivision (f), the matter is
remanded with directions to reclassify the second degree burglary
convictions as misdemeanor convictions. (§§ 459.5, subd. (a),
1170.18, subd. (g).)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
Kevin McGee, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender, Michael C.
McMahon, Chief Deputy, Cerise M. Fritsch, for Defendant and
Appellant.
Xavier Becerra, Kamala D. Harris, Attorneys
General, Gerald A. Engler, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Mary
Sanchez, Paul S. Thies, Deputy Attorneys General, for Plaintiff
and Respondent.