Opinion
E065874
04-24-2017
THE PEOPLE, Plaintiff and Appellant, v. JEFFREY ALAN LUDWIG, Defendant and Respondent.
Michael 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF101611) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael 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 from the trial court's order reducing defendant Jeffrey Alan Ludwig's conviction for second degree burglary from a felony to a misdemeanor. (Pen. Code, § 1170.18, subd. (f).) The People expressly do not challenge the trial court's ruling on three other counts. Instead, the People argue defendant did not meet his burden to show eligibility for resentencing only on count 1, second degree burglary, when he filed his petition. The People also argue that a check cashing store is not a commercial establishment within the meaning of section 459.5 and that defendant's burglary offense does not qualify for resentencing because defendant had the intent to commit identity theft and conspiracy.
All statutory references are to the Penal Code unless stated otherwise.
Neither party recognizes that defendant's petition did not actually seek resentencing for second degree burglary. Defendant did not check the box pertaining to that offense. He only checked the boxes for forgery and receiving stolen property (counts 2 and 3). Nevertheless, both parties and the court seemed to treat the petition as if it included the burglary offense. Therefore, we conclude the People waived any objection to the omission of the burglary count from the petition, or to the court granting such relief in spite of the omission. Based on that premise, we reject the People's arguments regarding defendant's lack of eligibility for resentencing and we affirm the trial court's order reducing the burglary offense to a misdemeanor.
II
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are derived from the probation report. On January 8, 2002, defendant and a woman entered a check cashing store called Money Mart and attempted to cash a check made payable to the woman in the amount of $480, drawn on an account belonging to Fred C. The Money Mart employee made some phone calls, including to Fred, who said he had just opened a new checking account and not received his checks in the mail. Meanwhile, defendant and his accomplice became nervous, first demanding the check and her identification be returned before leaving without those items. When the employee called 911, the woman came back to ask for her driver's license and overheard the 911 call before running outside to defendant's car.
The officers arrived at the scene as the woman ran from the store, entered defendant's car, and defendant drove away. Officers stopped the vehicle and found .7 grams of methamphetamine, a glass pipe, a stolen calling card, two social security cards, a birth certificate, an ATM card, and cards belonging to other people. Several other checks had been cashed from the same victim's checking account. Defendant's accomplice admitted she and defendant went to the Money Mart store in order to cash the check.
In January 2002, defendant and his codefendant were charged with six criminal offenses: commercial burglary (count 1; § 459); receiving stolen property (count 2; § 496, subd. (a)); forgery (count 3; § 470, subd. (d)); transportation of methamphetamine (count 4; Health & Saf. Code, § 11379, subd. (a)); possession of methamphetamine (count 5; Health & Saf. Code, § 11377, subd. (a)); and possession of drug paraphernalia (count 6; Health & Saf. Code, § 11364.) Defendant pleaded guilty as charged. Defendant was first sentenced to probation, which was later revoked in July 2004 when the court sentenced him to prison.
On April 14, 2015, defendant filed an application for redesignation under section 1170.18, subdivision (f). Defendant only checked the boxes for counts 2 and 3—forgery and receiving stolen property—and not the boxes for counts 1 and 4—burglary and transporting methamphetamine. Defendant also checked the box that he "believes the value of the check or property does not exceed $950."
In their appellate briefs, the parties do not recognize that defendant did not check the box for burglary.
The People responded, enumerating all four counts and asserting that count 4 was not eligible on its face and counts 1, 2, and 3 remained felonies because of "value [and] [defendant] entered (presumably) a bank [with intent] to commit ID theft" and conspiracy.
At the hearing on February 26, 2016, the prosecutor stated that the amount of the check defendant and his accomplice tried to cash was $180 (not $480) and conceded that the value of all amounts was under $950. The People's objection to count 1 was not based on value but that it involved identity theft (§ 530.5) and conspiracy. The court ordered counts 1, 2 and 3 reduced to misdemeanors and denied resentencing on count 4.
III
ELIGIBILITY FOR RESENTENCING
Here, defendant had completed his sentence when he filed his petition. Therefore his petition was an application for redesignation of his felony conviction as misdemeanors under subdivisions (f) and (g) of section 1170.18. The People contend defendant did not meet his burden of establishing that his second degree burglary conviction is eligible for redesignation as misdemeanor shoplifting.
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 Ca1.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 Ca1.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 Ca1.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).)
Evidence Supporting Eligibility
The People are challenging only the trial court's order reducing count 1 for second degree burglary. As already noted, the trial court granted this relief to defendant, even though he did not ask for it in his petition. Nevertheless, the court and both parties treated the petition as if it included count 1. At the hearing, the People did not raise any issue about the value involved. The People expressly based their argument only on the issues involving identity theft and conspiracy. Therefore, the People forfeited any objection to the omission of count 1 in the petition or to the court granting such relief in spite of the omission. (People v. Abarca (2016) 2 Cal.App.5th 475, 480; see People v. Osorio (2008) 165 Cal.App.4th 603, 611 [the People forfeited argument by not raising it below].)
The Supreme Court granted review of People v. 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.)
Regardless of whether the People forfeited the issue, we reject the People's contention defendant did not meet his burden of proving eligibility on the merits. The probation report described the check as being for $480. The prosecutor said the check was for $180. The court had access to the police report at the hearing. It was not disputed that the value involved was under $950. The trial court thus did not abuse its discretion in granting defendant's petition based on finding that the value involved was under $950.
Identity Theft and Conspiracy
The People also contend defendant's felony burglary conviction is not eligible for redesignation as misdemeanor shoplifting because defendant intended to commit identity theft (§ 530.5) or to commit a conspiracy when he entered the check cashing store (§ 182). The People raised this issue in their written opposition. During oral argument, the prosecutor stated: "Yes, the People are objecting as to Count 1, because the intent was a 530.5 as well as conspiracy." However, whether defendant intended to commit identity theft or conspiracy when he entered the store, the undisputed facts establish he entered the bank with intent to commit forgery (count 3). Therefore, defendant's burglary conviction is eligible for redesignation.
Entering an establishment 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); People v. Abarca, supra, 2 Cal.App.5th at p. 894; People v. Nguyen (1995) 40 Cal.App.4th 28, 31.) Defendant was therefore entitled to redesignation of his burglary offense as misdemeanor shoplifting if his conviction for burglary was predicated on intent to commit forgery, an offense eligible under Proposition 47 for redesignation as a misdemeanor.
Forgery (§§ 470, 473, 475), identity theft (§ 530.5), and conspiracy (§ 182) are different crimes. Although there may be some overlapping conduct, the statutes are concerned with remedying different wrongs. (People v. Barba (2012) 211 Cal.App.4th 214, 225.) 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).) Conspiracy occurs when two people conspire to commit any crime. (§ 182.)
The People do not dispute that defendant and his accomplice entered the store and attempted to cash a forged check. Even though these facts support the proposition defendant intended to commit forgery, the People nevertheless argue the conviction is not eligible for redesignation because defendant entered the bank with intent to commit identity theft or conspiracy.
The People rely on Barba, which is distinguishable. 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)). (People v. Barba, supra, 211 Cal.App.4th 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 this case, unlike in Barba, defendant was charged with burglary, receiving stolen property, and forgery, plus three drug-related offenses. There were no allegations or charges of identity theft or conspiracy. We recognize the People were not required to allege identity theft or conspiracy separately 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 not include identity theft or conspiracy. (People v. Abarca, supra, 2 Cal.App.5th 482-484.)
Furthermore, the language of Proposition 47 suggests that the intent to commit larceny controls over any secondary intent to commit identity theft. (People v. Garrett (2016) 248 Cal.App.4th 82, 87-88.) 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 Supreme Court granted review on August 4, 2016, S236012.
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, he 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." (People v. Garrett, supra, 248 Cal.App.4th at p. 88.) Based on the reasoning in Garrett, we conclude the trial court appropriately found defendant's burglary conviction qualified under Proposition 47 for redesignation as misdemeanor shoplifting.
Commercial Establishment
The People also 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."
This court in People v. Smith (2016) 1 Cal.App.5th 266, 272-273, held that a check cashing business is a commercial establishment: "Neither Proposition 47 nor the Penal Code defines 'commercial establishment.' We therefore understand it to have the meaning it bears in ordinary usage. [Citation.] If the language is unambiguous on its face, we interpret it accordingly. If the language is ambiguous, we may consult ballot summaries and other extrinsic materials to aid us in determining the voters' intent. [Citation.]
The Supreme Court granted review on September 14, 2016 (S236112).
"'When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.' (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) Black's Law Dictionary defines 'establishment' as '[a]n institution or place of business.' (Black's Law Dict. (7th ed. 1999) p. 566, col. 2.) It defines 'commerce' to mean: 'The exchange of goods and services.' (Id. at p. 263, col. 1, italics added.) Other sources are in accord. (Merriam-Webster.com [defining 'commerce' as 'activities that relate to the buying and selling of goods and services']; BusinessDictionary.com [defining 'commerce' as the '[e]xchange of goods or services for money or in kind'].) Thus, we interpret the term 'commercial establishment' as it appears in section 459.5, subdivision (a) to mean a place of business established for the purpose of exchanging goods or services.
"A check cashing business clearly satisfies this definition. A person in possession of a check made out in his or her name can endorse the check to the check cashing business and receive the proceeds in cash, less a commission paid to the check cashing business. The check cashing business then redeems the check from the issuing bank for the full amount of the check. [Citation.] The Court of Appeal has noted in another context that 'the role of check cashing companies in the general American economy has grown tremendously over the past 20 or so years. They facilitate financial services for large numbers of people who are not now connected to traditional banking institutions.' (HH Computer Systems, Inc. v. Pacific City Bank (2014) 231 Cal.App.4th 221, 230-231.) Thus, a business like Check Exchange provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term. We conclude, therefore, that the superior court erred in denying Smith's petition for resentencing on the basis that a Check Exchange store is not a commercial establishment under section 459.5, subdivision (a)."
For the same reasons as expressed in Smith, we hold the trial court did not err in redesignating defendant's burglary conviction as misdemeanor shoplifting under section 459.5.
IV
DISPOSITION
The order redesignating defendant's burglary offense as a misdemeanor is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.