Filed 7/20/17 P. v. Bennett 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAVID BENNETT,

Defendant and Appellant.
H043543
(Santa Clara County
Super. Ct. No. C1103796)

Defendant David Bennett appeals from an order denying his petition for resentencing under Penal Code section 1170.18. He contends that his three felony convictions for second degree burglary should have been reduced to misdemeanors
under Proposition 47. We agree and reverse the order.

I. Factual and Procedural Background
In February 2011, defendant used Heather Klosterman’s stolen credit card to purchase three gift cards at a Dairy Queen restaurant. The value of the first gift card was $100, the value of the second one was $60, and the value of the third one was $56. On the same day, defendant used Klosterman’s stolen debit card to purchase clothing and other merchandise at 420 Lifestyles. The total value of the items was over $350.
In July 2013, defendant was charged by information with three felony counts of second degree burglary (§§ 459, 460, subd. (b) – counts 1-3) and one misdemeanor count of use of a stolen access card (§§ 484g, 488 – count 4). The information also alleged that defendant had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)). Following a bench trial, the court found defendant guilty on all counts and found the prior strike allegation and prior prison term allegations to be true. The trial court sentenced defendant to a total prison term of four years: a 16-month term for count 1; a consecutive 16-month term for count 2; a consecutive 16-month term for count 3; and a concurrent 90-day term for count 4. The trial court struck the prior prison term allegations pursuant to section 1385.
On September 30, 2015, defendant filed a petition to have his three felony convictions for second degree burglary redesignated as misdemeanors.
On December 7, 2015, the trial court denied the petition for resentencing under section 1170.18.

II. Discussion
Defendant argues that the trial court erred in denying his petition for redesignation under section 1170.18 because his felony convictions for commercial burglary are eligible as misdemeanor shoplifting under section 459.5.
The Safe Neighborhoods and Schools Act (Proposition 47, as approved by the voters, Gen Elec. (Nov. 4, 2014)) added section 1170.18, which became effective on November 5, 2014. Proposition 47 amended certain statutes to reduce those offenses to misdemeanors and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326.) Thus, a defendant who is serving a sentence for a conviction “of a felony or felonies who would have been guilty of a misdemeanor under the act . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Section[] . . . 459.5 . . . of the Penal Code . . . .” (§ 1170.18, subd. (a).)
Burglary is defined as entry into a building “with intent to commit grand or petit larceny or any felony . . . .” (§ 459.) Section 459.5, which was added by Proposition 47, establishes the offense of shoplifting. 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.” (Italics added.)
Defendant argues that using a stolen credit or debit card to fraudulently obtain property from a commercial establishment constitutes theft by false pretenses and thus his offenses meet the definition of shoplifting under section 459.5. Though section 459.5 states that “shoplifting is defined as entering a commercial establishment with intent to commit larceny,” he relies on the definition of larceny in section 490a. Section 490a provides: “Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”
The Attorney General argues that defendant’s burglary convictions do not qualify as shoplifting under section 459.5 because “the electorate intended ‘larceny’ to mean what it meant at common law . . . .” He maintains that “section 459.5’s use of the phrases ‘commercial establishment’ and ‘open during regular business hours’ would support the voters’ belief that the crime of ‘shoplifting’ referred only to the common understanding of that crime, and did not include entry with the intent to commit theft by other means, such as false pretenses, fraud, or embezzlement.”
People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) is instructive. In Gonzales, the defendant stole his grandmother’s checkbook and twice entered a bank to cash checks made out to him. (Id. at p. 862.) The defendant was charged with second degree burglary and forgery. He pleaded guilty to burglary and subsequently petitioned for recall of his sentence and resentencing under section 1170.18. (Gonzales, at p. 862.) The Gonzales court concluded that section 490a applies to section 459.5 because “the shoplifting statute expressly mentions the burglary statute and uses the same term, ‘larceny,’ mak[ing] plain that the electorate intended ‘larceny’ to have the same meaning in both provisions.” (Gonzales, at p. 869.) The court was not persuaded by the argument that the electorate intended the term “shoplifting” in section 459.5 to “limit the offense to takings colloquially understood as ‘shoplifting.’ ” (Gonzales, at p. 871.) Thus, the Gonzales court held 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 section 459.5. (Gonzales, at p. 862.)
Here, defendant entered a Dairy Queen restaurant with a stolen credit card to purchase gift cards. He also entered a 420 Lifestyles store with a stolen debit card to purchase merchandise. In other words, he committed theft by false pretenses when he fraudulently passed off Klosterman’s credit and debit cards as his own to obtain property. Thus, defendant entered commercial establishments with the intent to commit larceny, which includes theft by false pretenses, and the value of the stolen property was less than $950. Since defendant’s conduct constituted shoplifting within the meaning of section 459.5, the trial court erred by refusing to reduce his burglary convictions to misdemeanors under section 1170.18.

III. Disposition
The order denying defendant’s petition to redesignate his second degree burglary convictions as misdemeanors under section 1170.18 is reversed. The matter is remanded to the trial court for further proceedings.



















_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.












People v. Bennett
H043543