Opinion
E065492
02-21-2017
THE PEOPLE, Plaintiff and Appellant, v. MATESA MARIE CHAVEZ, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Johanna S. Schiavoni 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF117156) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael A. Hestrin, District Attorney, and Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Johanna S. Schiavoni under appointment by the Court of Appeal, for Defendant and Respondent.
I
INTRODUCTION
The People appeal the trial court order granting defendant Matesa Marie Chavez's petition under Proposition 47 (Pen. Code, § 1170.18) for redesignation of her commercial burglary conviction (§ 459; count 1) as misdemeanor shoplifting (§ 459.5). In October or November 2003, defendant attempted to cash a stolen, forged $345 check at a bank. The People contend defendant did not meet her burden of proof for redesignation of her felony burglary conviction as a misdemeanor. The People also argue defendant's burglary offense does not qualify as misdemeanor shoplifting because defendant entered a bank with intent to commit identity theft, not larceny, and a bank is not a "commercial establishment" under Proposition 47. We reject the People's arguments and affirm the trial court order granting defendant's petition to redesignate her burglary conviction as misdemeanor shoplifting.
Unless otherwise noted, all statutory references are to the Penal Code.
II
FACTUAL AND PROCEDURAL BACKGROUND
The following facts were reported in Deputy Blanck's incident report prepared on November 4, 2003.
On October 31, 2003, Deputy De Anda received a fraud report from Bank of America, after defendant attempted to cash check No. 10779. Defendant reportedly ran out of the bank with the check and her California identification card.
While at the home of a friend, Heather W., defendant asked Heather's mother, Beverly W., for $340 in cash in exchange for a check defendant said she would make payable to Beverly. Heather had known defendant for only about two days. Beverly authorized her daughter to withdraw $340 from her credit union account. On November 2, 2003, Heather withdrew $340 in cash from Beverly's account and gave the money to defendant. A $2 service fee was charged for the transaction. Defendant gave Beverly a $345 check (No. 10779) but it was issued to defendant. When Beverly objected, defendant assured Beverly she could cash it as a two-party check. Defendant said she and Beverly could both endorse the check and then Beverly could deposit it in her bank account.
On November 4, 2003, Deputy Blanck was dispatched to a Bank of America branch located inside a grocery store in Moreno Valley. The bank teller, Jenny R., told Blanck that Beverly initially indicated she was going to deposit a $345 check (check No. 10779) in her account but changed her mind and attempted to cash the check. When Jenny scanned the check, she discovered it was a stolen check from the account of D.L. G. and Evelyn G. Their account showed that their checkbook was reported stolen on October 24, 2003. Jenny immediately contacted the police. Jenny gave Blanck the check and deposit slip, retained as evidence, copies of which were attached to the police report.
Blanck contacted Beverly, who explained how she had received the check from defendant. Beverly did not know the check was stolen. Beverly provided Blanck with a bank statement from her account, showing that on November 2, 2003, $342 was withdrawn from her account. This included a $2 service fee. Blanck attempted to contact defendant but defendant did not respond to any of his attempts.
In May 2004, the People filed a felony complaint against defendant, alleging commercial burglary, with intent to commit theft and a felony, at the Bank of America in Moreno Valley (§ 459; count 1); unlawfully possessing a completed check with intent to utter and pass the check, in order to defraud Bank of America and Evelyn G. (§ 475, subd. (c); count 2); knowingly receiving stolen property, consisting of a stolen check (§ 496, subd. (a); count 3); and possessing a completed check with intent to utter and pass the check, in order to defraud Beverly W. (§ 475, subd. (c); count 4). These crimes allegedly were committed on or about November 1 or 2, 2003.
On June 27, 2005, defendant pled guilty to count 1 (burglary) and count 4 (forgery). The trial court dismissed the remaining charges in accordance with a negotiated plea agreement. The court sentenced defendant to three years of formal probation.
After the voters enacted Proposition 47 in November 2014, which reduced certain drug and theft offenses to misdemeanors, defendant filed a form petition for redesignation of her burglary and forgery convictions to misdemeanors (petition). Defendant filed her petition in April 2015, without providing any supporting evidence. Defendant simply checked the box on the form petition, stating: "Defendant believes the value of the check or property does not exceed $950."
In June 2015, the People filed a form response, requesting a hearing to determine (1) whether a bank is not a commercial establishment and (2) the value of the stolen property in count 1. The People noted in their form response: "AWD [arrest warrant declaration] does not refer to count 1. People reviewed report for ct. 1, which does not specify amount." The People did not check the box stating that defendant's conviction was not a qualifying felony. Instead, the People stated the reason they objected to defendant's petition was that "Bank is not a commercial establishment."
In July 2015, the People filed a brief opposing defendant's petition. The People's statement of relevant facts states that defendant entered the Bank of America in Moreno Valley and attempted to cash a check in an unknown amount. The check was allegedly issued to defendant by D.L. G. and Evelyn G. The bank teller became suspicious. She called the account holder, Evelyn G., and confirmed the check had been stolen. The People argued in their opposition brief that defendant was ineligible for resentencing as to count 1 because defendant entered a bank, which is not a commercial establishment, for the purpose of cashing a forged check. The People concluded that the offense therefore did not qualify as misdemeanor shoplifting under section 459.5
In November 2015, the trial court ordered the matter set for a hearing on January 22, 2016, and further noted in the order: "459 was bank check for 340."
On January 22, 2016, the trial court granted defendant's petition and ordered defendant's burglary conviction redesignated as misdemeanor shoplifting (§ 495.5). As requested by the prosecutor, the court further ordered the police report filed under seal.
During the hearing on defendant's petition, the prosecutor submitted on redesignating count 4 as a misdemeanor, since the property that was the subject of the forgery offense was $340. The prosecutor, however, objected to the court granting redesignation of the burglary offense alleged in count 1 as misdemeanor shoplifting. The prosecutor argued the offense did not qualify because a bank is not a commercial establishment. When the court asked the prosecutor if the check in count 1 was under $950, the prosecutor conceded it was. The prosecutor further asserted defendant's intent was to commit identity theft (§ 530.5) with the stolen $340 check. The prosecutor stated she got most of the information from the arrest warrant declaration. The court stated it needed the police report and asked the prosecutor to check the report to see if it stated the amount of the check.
After a recess in the hearing, the trial court stated that the court had a copy of the check at issue, No. 10779, which was attached to the police report. The court found that the amount of the check was $345, not $1,345. The court therefore concluded count 1 was eligible for redesignation as a misdemeanor because the check amount did not exceed $950. The court noted the facts in the "Details" section of the police report also stated the check amount was $345. The court confirmed the police report had been filed with the court. The prosecutor reserved her objection to the court finding the check amount was $345. Over the prosecutor's objection, the court found the check was $345 and therefore count 1 qualified for redesignation as misdemeanor shoplifting. The court granted the prosecutor's request to file the police report under seal.
III
ESTABLISHING ELIGIBILITY
The People contend defendant did not meet her burden of establishing that her commercial burglary conviction is eligible for redesignation as misdemeanor shoplifting. A. Proposition 47
"'On November 4, 2014, the voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47), which went into effect the next day. [Citation.]' [Citation.] Section 1170.18 'was enacted as part of Proposition 47.' [Citation.] Section 1170.18 provides a mechanism by which a person currently serving a felony sentence for an offense that is now a misdemeanor, may petition for a recall of that sentence and request resentencing in accordance with the offense statutes as added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in subdivision (a) of 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.' [Citation.]" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2 (T.W.))
"Section 1170.18, subdivision (a) provides: 'A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ("this 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 . . . .'" (T.W., supra, 236 Cal.App.4th at p. 651, italics omitted.)
"[S]ection 1170.18 clearly and unambiguously states, 'A person currently serving a sentence for a conviction, whether by trial or plea' of eligible felonies may petition for resentencing to a misdemeanor. [Citation.]" (T.W., supra, 236 Cal.App.4th at p. 652, italics omitted.) "After a petitioner is found to be eligible, the trial court must grant the petition for reduction of sentence unless the court finds in its discretion that the petitioner poses an unreasonable risk of committing a very serious crime. [Citation.]" (Ibid.)
Similarly, a defendant who has completed a sentence for a crime may file an application under Proposition 47 to reduce his or her felony conviction to a misdemeanor (§ 1170.18, subd. (f)). Subdivision (g) of section 1170.18 provides: "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Among the crimes reduced to misdemeanors by Proposition 47 "are certain second degree burglaries where the defendant enters a commercial establishment with the intent to [commit larceny]. Such offense is now characterized as shoplifting as defined in new section 459.5." (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) 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." "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting." (§ 459.5, subd. (b).)
In the instant case, defendant had completed her sentence when she filed her petition. Therefore her petition was an application for redesignation of her felony burglary conviction as misdemeanor shoplifting under subdivisions (f) and (g) of section 1170.18. As the petitioner or moving party, defendant had the burden of proving her burglary offense was eligible for redesignation. B. Evidence Supporting Eligibility
The People argue defendant did not meet her burden of establishing eligibility because her petition for redesignation did not include any supporting evidence establishing the facts of the burglary offense. Defendant argues the People forfeited this objection by not raising it in their response to defendant's petition. We disagree the People forfeited their objection. Although the People do not specifically object in their appellate opening brief that defendant did not establish that the value of the stolen check, the People raised the objection generally by arguing defendant did not meet her burden of proving her conviction qualified for redesignation. In addition, the People objected in their form response to the petition and during the trial court hearing on the petition. The prosecutor argued the poor copy of the check appeared to be for $1,345, not $345.
Regardless of whether the People forfeited the issue, we reject the People's contention defendant did not meet her burden of proving eligibility on the merits. The police report (also referred to as the "incident report") and attached copies of the stolen check and "cash check" receipt supported the trial court's reasonable finding that the check defendant attempted to cash at the bank was for $345. The incident report stated that the investigating officer, Deputy Blanck, interviewed the bank teller who discovered the check was stolen, as well as the victim and her daughter, Beverly W. and Heather W. Blanck also spoke to another officer who received a fraud report from the bank regarding defendant attempting unsuccessfully to cash the same stolen check several days before.
During the hearing on defendant's petition, the trial court requested the police report to determine the amount of the stolen check. A copy of the police report was provided to the court. Neither party objected to the court relying on the facts stated in the report and attachments. The prosecutor requested the police report be filed with the court under seal. By not objecting, the parties forfeited any objections to the court relying on the police report and attachments. (Evid. Code, § 353, subd. (a).)
The trial court noted during the hearing that the copy of the stolen check was not good but reasonably found it was for $345, based on the hand written words for the numbers. The police report also stated the stolen check was for $345, and the court reasonably concluded it was the same stolen, forged check defendant had attempted to cash a few days earlier. The facts provided in the police report and copies of the stolen check and "cash check" receipt provided sufficient evidence that defendant's burglary conviction was eligible for redesignation as misdemeanor shoplifting. The trial court thus did not abuse its discretion in granting defendant's petition.
IV
IDENTITY THEFT
The People contend defendant's felony burglary conviction is not eligible for redesignation as misdemeanor shoplifting because, when she entered the bank, she intended to commit identity theft. The People did not raise this objection in their written opposition but did allude to it during oral argument. The prosecutor stated, "[O]ur argument would be that the intent was to commit a 530.5 with that stolen check when she had the account number and the account information."
Regardless of whether defendant may have intended to commit identity theft when she entered the bank, the undisputed facts establish she entered the bank with intent to commit forgery. Therefore defendant's burglary conviction is eligible for redesignation. Entering a bank with intent to cash a forged check constitutes entry with intent to commit theft by false pretenses or larceny, which also qualifies as shoplifting within the meaning of section 459.5, if the value of the check was $950 or less. (§ 473, subd. (b) ["any person who is guilty of forgery relating to a check . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year"]; see as persuasive authority, People v. Abarca (2016) 2 Cal.App.5th 475, 894 (Abarca); People v. Nguyen (1995) 40 Cal.App.4th 28, 31.) Defendant was therefore entitled to redesignation of her burglary offense as misdemeanor shoplifting, if her conviction for burglary was predicated on intent to commit forgery, an offense eligible under Proposition 47 for redesignation as a misdemeanor.
The Supreme Court granted review of Abarca, supra, 2 Cal.App.5th 475 on October 19, 2016, S237106. Under a recent amendment to California Rules of Court, rule 8.1115, we may rely on Abarca as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
Forgery (§§ 470, 473, 475) and identity theft (§ 530.5) are different crimes. Although there may be some overlap in the conduct that identity theft and the forgery statutes prohibit, the statutes are concerned with remedying two different wrongs. (People v. Barba (2012) 211 Cal.App.4th 214, 225 (Barba).) Forgery is committed when a person possesses a completed check "with the intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person." (§ 475, subd. (c).) The crime of identity theft is committed when a person obtains personal identifying information of another and "uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, . . ." (§ 530.5, subd. (a).)
The People do not dispute that defendant entered the bank and attempted to cash a forged check. Even though these facts support the proposition defendant entered the bank with intent to commit forgery, the People nevertheless argue the conviction is not eligible for redesignation under Barba, supra, 211 Cal.App.4th at page 220, because defendant entered the bank with intent to commit identity theft, an offense which does not qualify as misdemeanor shoplifting. But Barba is distinguishable and does not support this proposition. In Barba, the People charged defendant with identity theft (§ 530.5, subd. (a)). The court held that the People alleged sufficient facts in the information to support an identity theft charge against the defendant (§ 530.5, subd. (a)). (Barba, at p. 229.) The information alleged that the defendant attempted to cash checks stolen from a company. The court stated in Barba, "[T]here can be no doubt that by submitting the stolen checks for cashing, the defendants were relying on the personal identifying information provided on those checks to obtain money to which they were not entitled." (Id. at p. 228.)
In the instant case, unlike in Barba, defendant was charged with burglary, based on the intent to commit the predicate offense of theft, which includes the crimes of false pretenses and forgery. (People v. Garrett (2016) 248 Cal.App.4th 82, 89-90 (Garrett), rev. granted.) There were no allegations or charges of identity theft. We recognize the People were not required to allege separately identity theft because burglary is complete upon entry with the requisite criminal intent. (People v. Brownlee (1977) 74 Cal.App.3d 921, 930.) However, the felony complaint alleged the predicate intent of the charged burglary was to commit a "theft and a felony," which would include forgery but not identity theft.
The Supreme Court granted review of Garrett, supra, 248 Cal.App.4th 82 on August 24, 2016, S236012. Under a recent amendment to California Rules of Court, rule 8.1115, we may rely on Garrett as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
Furthermore, the language of Proposition 47 suggests that the intent to commit larceny controls over any secondary intent to commit identity theft. (Garrett, supra, 248 Cal.App.4th at pp. 87-88.) Garrett provides persuasive authority for this. In Garrett, the court assumed for the sake of argument that the record contained substantial evidence that the defendant entered a store with the intent to commit felony identity theft under section 530.5. Based on this assumption, the Garrett court held that the defendant could not have been charged with burglary under section 459 if the same act — entering a store with the intent to purchase merchandise with a stolen credit card — also constituted shoplifting under section 459.5. (Garrett, at p. 88.)
The court in Garrett explained that the dispositive issue was thus whether that act fell within the definition of "shoplifting" under section 459.5: "A given act may constitute more than one criminal offense. It follows that a person may enter a store with the intent to commit more than one offense—e.g., with the intent to commit both identity theft and larceny. Furthermore, Section 459.5 mandates that notwithstanding Penal Code section 459, a person who enters a store 'with intent to commit larceny' shall be punished as a misdemeanant if the value of the property to be taken is not more than $950. (§ 459.5, subd. (a).) Subdivision (b) further provides that any act defined as shoplifting 'shall be charged as shoplifting' and may not be charged as burglary or theft of the same property. (§ 459.5, subd. (b).) Thus, even assuming defendant intended to commit felony identity theft, she could not have been charged with burglary under Penal Code section 459 if the same act—entering a store with the intent to purchase merchandise with a stolen credit card—also constituted shoplifting under Section 459.5." (Garrett, supra, 248 Cal.App.4th at p. 88.)
Based on this reasoning in Garrett, supra, 248 Cal.App.4th 82, we conclude the trial court appropriately granted defendant's petition on the ground defendant's burglary conviction qualified under Proposition 47 for redesignation as misdemeanor shoplifting.
V
COMMERCIAL ESTABLISHMENT
The People argue defendant's burglary conviction is not eligible for redesignation as misdemeanor shoplifting because defendant did not enter a "commercial establishment" within the meaning of section 459.5.
Section 459.5, subdivision (a), defines shoplifting 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." (Italics added.) That term "commercial establishment" is not defined in Proposition 47 or the Penal Code. The issue of whether a bank qualifies as a commercial establishment is pending before the California Supreme court. (People v. Root (2016) 245 Cal.App.4th 353, rev. granted May 11, 2016, S233546; Abarca, supra, 2 Cal.App.5th 475, rev. granted Oct. 19, 2016, S237106.)
The People urge us to adopt a commonsense meaning of shoplifting, which would be its plain, ordinary meaning, limited to theft crimes of establishments which have goods on display. This would not include banks. We reject this proposition, as did the court in Abarca, supra, 2 Cal.App.5th at pages 481-482. As in Abarca, supra, 2 Cal.App.5th 475, we construe the term "commercial establishment" in section 459.5, subdivision (a), to mean a place of business established for the purpose of exchanging goods or services. (Accord, In re J.L. (2015) 242 Cal.App.4th 1108, 1114-1115.) Banks satisfy this definition. Bank customers use banks to deposit and withdraw funds in exchange for fees. In the context of approving banks' ability to collect fees from nondepositors who use their automatic teller machines, the U.S. Court of Appeals for the Ninth Circuit noted "[t]he depositing of funds and the withdrawal of cash are services provided by banks since the days of their creation. Indeed, such activities define the business of banking." (Bank of America v. City & County of San Francisco (9th Cir. 2002) 309 F.3d 551, 563.)
We may rely on Abarca, supra, 2 Cal.App.5th 475 only as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
A bank provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term and under section 495.5. (Abarca, supra, 2 Cal.App.5th at pp. 481-482.) To conclude otherwise, by adopting the People's limited definition of "commercial establishment," would frustrate the purposes of Proposition 47 and result in the continued incarceration of persons who committed petty theft crimes. Accordingly, we construe section 459.5, subdivision (a), to include as shoplifting, thefts from commercial ventures, such as banks, which sell services. (Abarca, at p. 482.) Therefore the trial court did not err in granting defendant's petition redesignating her burglary conviction as misdemeanor shoplifting under section 459.5.
VI
DISPOSITION
The order granting defendant's petition for redesignation is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.