Opinion
E066457
07-03-2017
THE PEOPLE, Plaintiff and Appellant, v. STEVEN EDWARD BOYD, Defendant and Respondent.
Michael A. Hestrin, District Attorney, Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1303254) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael A. Hestrin, District Attorney, Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Respondent.
Defendant and respondent Steven Edward Boyd pled guilty to one felony count of second degree commercial burglary for entering a bank and cashing a stolen check. (Pen. Code, § 459.) He subsequently filed a petition to redesignate his felony conviction as a misdemeanor under Proposition 47 (§ 1170.18), which the trial court granted.
All further statutory references will be to the Penal Code, unless otherwise noted.
The People appeal the order granting the petition and contend that: (1) defendant failed to meet his burden to prove eligibility for resentencing; (2) he did not enter a commercial establishment within the meaning of section 459.5; and (3) he entered a bank with the intent to commit identity theft and/or conspiracy. We affirm.
PROCEDURAL BACKGROUND
Defendant was charged by felony complaint with second degree commercial burglary (§ 459, count 1) and forgery (§ 476, count 2). The complaint also alleged that he violated his probation.
On May 7, 2014, defendant pled guilty to count 1 (§ 459) and admitted the probation violation. As to the factual basis for the plea, the court asked defendant if he "willfully and unlawfully enter[ed] the Chase Bank in La Quinta, with the intent to commit a theft, a felony." Defendant said, "Yes, sir." The court dismissed count 2 and placed defendant on probation for three years, under specified terms.
On November 4, 2014, the voters of California passed Proposition 47, which reduces some felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure allowing offenders who have completed their sentences to apply to redesignate prior convictions if they "would have been guilty of a misdemeanor under" provisions added or amended by Proposition 47. (§ 1170.18, subd. (f); see People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta).)
On September 3, 2015, defendant filed a Proposition 47 petition for resentencing to reduce his felony second degree burglary conviction to misdemeanor shoplifting. (§ 1170.18, subds. (a) & (f).) He used the mandatory form for petitioning for resentencing in the Superior Court of Riverside County. His attorney checked the box indicating that he was convicted of second degree burglary (§ 459) and the box indicating he "believes the value of the check or property does not exceed $950." He did not submit any additional supporting evidence. The People filed a response, stating that defendant was not entitled to relief because he "went into bank w/stolen check #1476 & cashed it for $600." The People further stated, "Bank isn't a commercial establishment & intent on top of theft was to commit 530.5 by having someone's account #. Also conspiracy based on facts—defendant kept some & gave away the rest to others involved."
The court held a hearing on June 17, 2016. Defense counsel asserted that defendant pled guilty to burglary, and the facts were that he and his codefendant entered a Chase Bank and attempted to cash a $600 check using his name. Defense counsel noted the police report stated that both individuals had endorsed the check; however, defendant and his codefendant were not charged with or convicted of conspiracy. The People did not contest the value of the check, but argued that Chase Bank was not a commercial establishment. The People further contended that defendant entered the bank with the intent to commit a conspiracy to commit theft and the intent to commit identity theft. The People argued that both defendants pled guilty to "entering with the intent to commit a felony or a theft therein, thereby admitting to the conspiracy, essentially." The People further contended that, even though defendant was not charged with or convicted of conspiracy, the court had to consider the underlying facts, which made him ineligible. The People concluded that the offense was not shoplifting, but second degree burglary. The court found that the conspiracy was uncharged and granted defendant's petition.
ANALYSIS
The Court Properly Granted Defendant's Petition
The People contend that the trial court erred in granting the petition because: (1) defendant failed to meet his burden to prove eligibility for resentencing, since he failed to present any evidence regarding the underlying facts of his burglary conviction; (2) he did not enter a commercial establishment within the meaning of section 459.5; and (3) he entered the bank with the intent to commit identity theft (§ 530.5) and the "intent to commit conspiracy to commit identity theft in violation of section 182." We conclude that the court properly granted the petition.
A. Relevant Law
A defendant may be eligible for misdemeanor resentencing under Proposition 47 if he "would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) Proposition 47 added several new provisions, including section 459.5, which created the crime of shoplifting. (§ 1170.18, subd. (a).) Section 459.5, subdivision (a), provides: "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 is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. (§ 459.5, subd. (a).)" (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).)
B. Petitioner's Burden
The People contend the trial court's ruling is erroneous because defendant's section 1170.18 petition "failed to present any evidence regarding the underlying facts of his section 459 conviction." The People claim the court should have summarily denied the petition. "In effect, the People contend the trial court abused its discretion by reaching the merits of [defendant's] petition without first finding [he] had made a prima facie case of entitlement to resentencing." (Huerta, supra, 3 Cal.App.5th at p. 543.) We find no error.
The People specifically assert that defendant simply filed the stock resentencing petition form and "provided no information about the nature of the property or the nature of his entry that constituted second degree burglary." The People present no reason or authority to conclude the trial court was required to summarily deny defendant's petition because he failed to attach evidence to his petition. (Huerta, supra, 3 Cal.App.5th at p. 543.) We further note that the People did not address the sufficiency of the petition in their responsive pleading, and actually described the nature of the offense in arguing that defendant was not entitled to relief since he went into a bank and cashed a stolen check for $600.
Under these circumstances, we conclude the trial court acted within its discretion to set an evidentiary hearing to establish the facts underlying defendant's conviction. (Huerta, supra, 3 Cal.App.5th at p. 543.) Furthermore, even if the court had dismissed defendant's petition as deficient, it would have been an abuse of discretion to deny him the opportunity to cure the defects through amendment. (Id. at pp. 543-544.)
C. A Bank is a Commercial Establishment within the Meaning of Proposition 47
The People contend the trial court erred in granting defendant's petition for resentencing because he was guilty of second degree burglary, not shoplifting, since a bank is not a "commercial establishment" within the meaning of section 459.5. We disagree.
In Gonzales, supra, 2 Cal.5th 858, a defendant stole his grandmother's checkbook, entered a bank twice, and cashed checks made out to him for $125. His grandmother did not sign the checks or authorize the defendant to cash them. (Id. at p. 862.) The defendant pled guilty to second degree burglary and was placed on probation for three years. He filed a petition for resentencing under section 1170.18. The trial court denied his petition, and the Court of Appeal affirmed. (Ibid.) However, the Supreme Court reversed the Court of Appeal's judgment and 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 the statute." (Ibid.) Therefore, a bank is a commercial establishment within the meaning of section 1170.18. (Ibid.; accord, People v. Abarca (2016) 2 Cal.App.5th 475, 482, review granted Oct. 19, 2016, S237106 (Abarca) [A "business like U.S. Bank provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term."].)
D. Defendant Entered the Bank with the Intent to Commit Theft
The People argue the court erred in granting defendant's petition because he did not enter the bank "with the sole intent to commit larceny under $950." Rather, he entered the bank with the intent to commit identity theft (§ 530.5) and "conspiracy to commit identity theft in violation of section 182." We find no error.
Section 459.5, subdivision (a), provides: "Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny" where the value of the property taken is under $950. Defendant was therefore eligible for resentencing if his conviction for burglary was predicated on his intent to commit theft. (§ 1170.18.) He entered a plea agreement whereby he pled guilty to burglary and admitted that he entered the Chase Bank "with the intent to commit a theft." Thus, his burglary conviction was undisputedly predicated on his intent to commit theft. Defendant's act of entering a bank to cash a stolen check for less than $950 constituted shoplifting under section 1170.18. (Gonzales, supra, 2 Cal.5th at p. 862.)
The People rely upon People v. Barba (2012) 211 Cal.App.4th 214 (Barba) in support of their position, but such reliance is misplaced. In Barba, the court held that the trial court erred in dismissing a charge of identity theft (§ 530.5, subd. (a)) on the ground that the evidence at the preliminary hearing was insufficient. (Id. at pp. 217-218.) The court concluded that the People had "presented sufficient evidence at the preliminary hearing to establish probable cause to hold [the] defendants to answer to the charge that they willfully obtained personal identifying information belonging to [a remodeling company], and that they used that information for the unlawful purpose of cashing the stolen checks without [the company's] consent." (Id. at p. 229.)
In Gonzales, supra, 2 Cal.5th 858, the People similarly relied upon Barba, supra, 211 Cal.App.4th 214 and argued that, "even if defendant engaged in shoplifting, he is still not eligible for resentencing because he also entered the bank intending to commit identity theft." (Gonzales, at p. 876.) The Supreme Court noted that section 459.5, subdivision (b), "requires that any act of shoplifting 'shall be charged as shoplifting' and no one charged with shoplifting 'may also be charged with burglary or theft of the same property.' (Italics added.) A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct." (Gonzales, at p. 876.) The Court concluded that "the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft [] because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950." (Id. at p. 877-878.)
In the instant case, defendant was not charged with burglary based on an entry with intent to commit identity theft or conspiracy. Moreover, the trial court based its ruling on the finding that his burglary conviction was predicated on his intent to commit theft. Thus, regardless of whether defendant may have entered the bank with the intent to commit identity theft or conspiracy, his commission of the offense of attempting to cash a forged check valued at less than $950 rendered him eligible for resentencing. (Gonzales, supra, 2 Cal.5th at pp. 862, 876-877.)
We conclude the court properly granted defendant's petition for resentencing under Proposition 47.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLRT
J.