Filed 9/25/17 P. v.Roberto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
TINA MARIE ROBERTO,
Defendant and Appellant.
|
F073490
(Super. Ct. Nos. F07909207, F06905523, F07907244)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Tina Marie Roberto appeals from the trial court’s denial of her motion pursuant to Penal Code[1] section 1170.18 for resentencing of her second degree burglary in case No. F07909207. On appeal, Roberto contends the court erred when it denied her motion because her second degree burglary conviction constituted shoplifting under section 459.5. We reverse and remand for further proceedings.
FACTS
On November 24, 2007, Roberto attempted to pass a stolen check for $76.06 at a Rite Aid store (case No. F07909207).
On December 5, 2007, the Fresno County District Attorney filed a complaint in case No. F07909207 that charged Roberto with second degree burglary (§§ 459 & 460, subd. (b); count 1) and forgery (§ 475, subd. (c); count 2).
On December 21, 2007, pursuant to a negotiated plea, Roberto pled no contest in case No. F07909207 to second degree burglary and the forgery count was dismissed. Roberto also admitted a probation violation in case No. F07907244. After Roberto waived her right to a probation report, pursuant to the agreement, the court sentenced her to two concurrent prison terms of 16 months.
On October 30, 2015, Roberto filed an application for reduction of felony conviction pursuant to section 1170.18, asking the court to reduce her convictions in three cases, including her second degree burglary conviction in case No. F07909207.
On March 28, 2016, the court denied the motion as to all three cases.
DISCUSSION
The Statute
“In November 2014, California voters enacted Proposition 47, which ‘created a new resentencing provision: section 1170.18.’ ” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).) As enacted, section 1170.18 provides that “[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 conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” (§ 1170.18, subd. (f).) “If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor.” (§ 1170.18, subd. (g).)
“Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor ‘where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).’ (§ 459.5, subd. (a).) ‘[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered “a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours,” and whether “the value of the property that [was] taken or intended to be taken” exceeded $950. (§ 459.5.)’ ” (Rivas‑Colon, supra, 241 Cal.App.4th at p. 448, italics added.)
Roberto’s Conduct was Larcenous
Roberto contends that her conduct in entering a store with the intent to use a stolen check to make a purchase or receive cash was larcenous. Thus, according to Roberto, the court erred when it denied her motion to reduce her second degree burglary conviction in case No. F07909207 to a misdemeanor. Respondent contends the court did not err because Roberto did not have the intent to commit a trespassory taking when she entered the store and, thus, her conduct fails to meet the common law definition of larceny.
The Supreme Court recently held that the term “larceny,” as defined by section 459.5, is not limited to trespassory takings, but includes nontrespassory takings such as theft by false pretenses. (People v. Gonzales (2017) 2 Cal.5th 858, 862.) When Roberto entered the Rite Aid store, she attempted to fraudulently obtain property through transactions that qualify as theft by false pretenses because the transaction was presented to the Rite Aid employees as legitimate. Roberto’s second degree burglary conviction in case No. F07909207, therefore, qualifies for reduction and the court erred when it denied her motion to resentence her on that conviction.
DISPOSITION
The order is reversed with respect to Roberto’s second degree burglary conviction in case No. F07909207, and the matter is remanded for further proceedings consistent with this opinion.
