Opinion
F072145
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW EUGENE CARLILE, Defendant and Appellant.
Karriem J. Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF43125)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tuolumne County. Donald I. Segerstrom, Judge. Karriem J. Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Kane, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
Appellant Matthew Eugene Carlile appeals from the denial of his petition for resentencing, filed pursuant to Proposition 47. Appellant contends he was eligible for resentencing on his 2014 conviction for second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) because he entered a commercial establishment with the intent to commit larceny by using a stolen credit card to purchase goods. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2014, appellant and a codefendant, Leah Summers, were charged with two counts of second degree burglary, two counts of identity theft (§ 530.5, subd. (a)), one count of petty theft (§ 484, subd. (a)), and two counts of fraudulent use of an access card (§ 484g). Appellant was also accused of having two prior felony convictions. Pursuant to a plea agreement, appellant pled guilty to one count of second degree commercial burglary and one count of identity theft. The factual basis for the claim alleged appellant and his codefendant obtained a stolen credit card and used it to purchase items from a Wal-Mart store. Appellant was subsequently sentenced to an eight-month term on each count, served consecutive to a previously imposed sentence in a different case. Following enactment of Proposition 47, appellant petitioned to have his second degree commercial burglary conviction reduced to a misdemeanor.
The court denied appellant's petition. This appeal timely followed.
DISCUSSION
Appellant argues the trial court erred by failing to recognize that entering a store with the intent to purchase goods using a stolen credit card qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47. Appellant's argument turns on whether theft by false pretenses qualifies as larceny under the shoplifting statute. Standard of Review and Applicable Law
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be "resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." ' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).)
"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.)
The trial court is tasked with determining whether a petitioner is eligible for resentencing. (§ 1170.18, subd. (b).) However, a petitioner has the initial burden of introducing facts sufficient to demonstrate eligibility. (People v. Sherow (2015) 239 Cal.App.4th 875, 879-880.)
The court's review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.) Factual findings of the trial court are reviewed "for substantial evidence and the application of those facts to the statute de novo." (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) The record is viewed in the light most favorable to the trial court's ruling with a presumption that the order was correct. (Ibid.) Appellant's Conduct Does Not Qualify as Larceny
This court recently analyzed the meaning of the shoplifting statute and found that larceny, as used in that statute, should be interpreted according to its common-law definition. (People v. Martin (2016) 6 Cal.App.5th 666, 683, review granted February 15, 2017, S239205.) As such, to demonstrate eligibility, appellant must point to facts showing an intent to commit a trespassory taking, among other elements. (Id. at p. 676.) As we detailed in Martin, intending to commit theft by false pretenses does not qualify as larceny under this definition. (Id. at pp. 683-684.) The facts as presented on appeal show appellant attempted to fraudulently obtain money through a transaction presented to the victim as legitimate. This fails to satisfy the common-law definition of larceny as there was no intent to commit a trespassory taking. Appellant's second degree burglary conviction does not, therefore, qualify for resentencing.
In light of our ruling in Martin, we decline to follow the analysis provided by the Sixth District Court of Appeal in People v. Garrett (2016) 248 Cal.App.4th 82, review granted August 24, 2016, S236012. We recognize the split in authority on this issue is currently before the California Supreme Court. --------
DISPOSITION
The order is affirmed.