Opinion
D067396
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. PRISCILLA GALLEGOS CARRILLO, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF32838) APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Reversed and remanded with directions. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Priscilla Gallegos Carrillo pleaded no contest to second degree commercial burglary in violation of Penal Code section 459. She appealed an order denying her petition to recall her felony sentence and request for resentencing under section 1170.18. On appeal, she argued: (1) the trial court erred in denying her petition because her offense met the statutory definitions of shoplifting and petty theft, which were misdemeanor offenses created in 2014 by Proposition 47, the Safe Neighborhoods and Schools Act; and (2) the court's failure to grant her petition violated her right to equal protection because forgery and writing bad checks are treated as misdemeanors. On February 9, 2016, we affirmed the trial court's order denying Carrillo's petition to recall her sentence and request for resentencing.
All further statutory references are to the Penal Code.
The California Supreme Court granted Carrillo's petition for review and, on June 28, 2017, transferred the matter to this court with directions to vacate our decision and to reconsider the cause in light of People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). In accordance with the directions of the Supreme Court, we vacate our decision in this matter filed February 9, 2016, and issue the following decision reversing the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2014, Carrillo obtained the victim's identity card and two checks made out to the victim. Carrillo cashed one of those checks, in the amount of $827.86, at Casa de Cambio La Mejor, a money exchange establishment. She cashed the other check, in the amount of $720.12, at a Chase bank.
The Imperial County District Attorney charged Carrillo with two counts of second degree commercial burglary, four counts of forgery, and one count of identity theft. The second degree burglary charges were for each check cashing incident. Carrillo pleaded no contest to the second degree commercial burglary charge pertaining to her check cashing at Casa de Cambio La Mejor. As part of her plea agreement, Carrillo entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, which provided that "[t]he sentencing judge may consider [her] prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence." Pursuant to Carrillo's plea deal, the trial court dismissed the remaining charges against her. The trial court sentenced Carrillo to three years in custody, but suspended execution of sentence and placed Carrillo on probation for three years.
In November 2014, Carrillo petitioned for recall of her felony sentence and requested resentencing under section 1170.18. She argued the trial court should resentence her to misdemeanor shoplifting under section 459.5. The trial court denied Carrillo's petition, noting that she entered a plea to second degree commercial burglary with a Harvey waiver.
DISCUSSION
I
SHOPLIFTING UNDER SECTION 459 .5
Carrillo argues the trial court erred in denying her petition to recall her sentence for second degree commercial burglary because her offense meets the statutory definitions of shoplifting under section 459.5 and petty theft under section 490.2. In light of the California Supreme Court's recent decision in Gonzales, supra, 2 Cal.5th 858, we conclude Carrillo was eligible for misdemeanor resentencing under section 1170.18 because her crime constituted shoplifting, as set forth in section 459.5. Based on our conclusion, we need not consider Carrillo's argument that her crime also met the statutory definition of petty theft.
In 2014, the electorate passed the Safe Neighborhoods and Schools Act, which added new provisions to the Penal Code, including section 459.5. (Gonzales, supra, 2 Cal.5th at p. 863.) Section 459.5 created the crime of shoplifting. (Gonzales, supra, at p. 863.) 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. [Citation.] Section 459.5, subdivision (b) contains an explicit limitation on charging: '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.' " (Gonzales, supra, 2 Cal.5th at p. 863.)
The Safe Neighborhoods and Schools Act also created a new resentencing provision in section 1170.18. "Section 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions. If the offense committed by an eligible defendant would have been a misdemeanor under the Act, resentencing is required unless 'the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' " (Gonzales, supra, 2 Cal.5th at p. 863, fns. omitted.)
In Gonzales, our high court considered whether a defendant's acts of cashing forged, stolen checks at a bank for amounts less than $950 constituted shoplifting under section 459.5. (Gonzales, supra, 2 Cal.5th at p. 862.) The court was not persuaded by an argument that the electorate intended the term "shoplifting" in section 459.5 to "limit the offense to takings colloquially understood as 'shoplifting.' " (Gonzales, supra, at p. 871.) Rather, the court reasoned that because "the shoplifting statute expressly mentions the burglary statute and uses the term, 'larceny,' [it] makes plain that the electorate intended 'larceny' to have the same meaning in both provisions." (Id. at p. 869.) The Gonzales court accordingly held that "the electorate . . . intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, [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, supra, at p. 862.)
Following our Supreme Court's instruction in Gonzales, we reach a similar conclusion in the present case. Carrillo's act of entering a money exchange establishment to cash a check made out to the victim using the victim's identity card is regarded as theft by false pretenses, as was the act of entering a bank to cash a stolen check in Gonzales, supra, 2 Cal.5th at page 862. The check Carrillo cashed was for an amount less than $950 and the money exchange establishment where she cashed the check constituted a commercial establishment. Thus, Carrillo's felony commercial burglary conviction is eligible for redesignation as misdemeanor shoplifting under section 459.5.
We reject the Attorney General's argument that Carrillo was "outside the class of people to whom Proposition 47 was intended to provide relief" because she committed identity theft by using the personal identifying information of another person to defraud the money exchange establishment. The Gonzales court rejected a similar argument, reasoning 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, supra, 2 Cal.5th 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. 876-877.) Following this reasoning, we conclude that even if Carrillo entered the money exchange establishment with the intent to commit identity theft, her commission of the offense of cashing a stolen check valued at less than $950 was shoplifting under section 459.5. Thus, Carrillo was eligible for resentencing.
In People v. Barba (2012) 211 Cal.App.4th 214, the court reasoned that the defendants could have committed identity theft by cashing a stolen check. (Id. at p. 229.)
Lastly, we reject the Attorney General's argument that Carrillo does not qualify for resentencing because the amount of loss was greater than $950. In making this argument, the Attorney General contends that based on Carrillo's Harvey waiver, the court should consider both checks she cashed, which together totaled $1,547.98. However, the court may not aggregate the amounts of the stolen checks from separate charges to hold Carrillo ineligible for resentencing. (See People v. Hoffman (2015) 241 Cal.App.4th 1304, 1309-1310.)
Based on the foregoing, we conclude the trial court erred in denying Carrillo's petition for resentencing under section 1170.18.
II
EQUAL PROTECTION
Carrillo argues the court's failure to grant her petition violated her right to equal protection because forgery and writing bad checks are treated as misdemeanors. She contends that persons who take money by writing bad checks or forging checks are similarly situated to persons who commit burglary by cashing a stolen check. Based on our conclusion that the trial court erred in denying Carrillo's petition for resentencing, we need not consider her equal protection argument.
DISPOSITION
The order denying Carrillo's petition for resentencing under section 1170.18 is reversed. The case is remanded to the trial court to grant the petition and resentence as may be appropriate.
HUFFMAN, J. WE CONCUR:
BENKE, Acting P. J.
HALLER, J.