Opinion
E065893
02-23-2017
THE PEOPLE, Plaintiff and Appellant, v. CARLOS MANUEL MARTINEZ, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PEF005748) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
I
INTRODUCTION
The People appeal from the trial court's order granting defendant Carlos Manuel Martinez's petition under Proposition 47 (Pen. Code, § 1170.18) for redesignation of his second degree burglary conviction (§ 459; count 7) as misdemeanor shoplifting. (§ 459.5.) On November 15, 1999, defendant cashed two stolen, forged checks for $315 and $346 at a bank. The People argue defendant's burglary offense does not qualify as misdemeanor shoplifting because defendant entered a bank with intent to commit identity theft (§ 503.5) and elder abuse (§ 268, subd. (d)), not larceny, and a bank is not a "commercial establishment" under Proposition 47. We reject the People's arguments and affirm the trial court's order granting defendant's petition to redesignate his burglary conviction as misdemeanor shoplifting.
Unless otherwise noted, all statutory references are to the Penal Code.
II
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, the People filed a felony complaint against defendant, alleging entry of a building, with intent to commit theft and a felony (§ 459; count 7) and unlawfully possessing a completed check with intent to utter and pass the check, in order to defraud Bank of America and two elderly victims. (§ 475, subd. (c); count 8.) These crimes allegedly were committed in November 1999. According to the police report, the two victims were 91 and 101 years of age. Defendant's girlfriend had stolen six checks from the victims and defendant cashed two forged checks in the amounts of $315 and $346.
Defendant argues that the police report is not part of the record of conviction—an objection he did not raise below. Furthermore, this court's order of August 9, 2016, allows references to nonconfidential information from the police report.
On August 9, 2001, defendant pleaded guilty to count 7 for burglary. It is not clear from the record which check was the basis for count 7. However, defendant concedes in his respondent's brief that, in pleading guilty, he admitted that he entered the Bank of America "with the intent to commit a theft therein; to wit, passing a forged check." The trial court dismissed the remaining charges in accordance with a negotiated plea agreement and sentenced defendant to three years in prison.
The California voters enacted Proposition 47 in November 2014, reducing certain theft offenses to misdemeanors. In May 2015, defendant filed a form petition for redesignation of his burglary conviction to a misdemeanor because the value of the forged check did not exceed $950.
In July 2015, the People filed a form response, asserting a bank is not a commercial establishment and requesting a hearing to determine the value of the stolen property. The People argued in their supporting brief that defendant was guilty of second degree burglary, not shoplifting, because a bank is not a commercial establishment within the meaning of section 459.5.
At the hearing on February 26, 2016, the prosecutor represented to the court, apparently relying on the police report, that defendant cashed two forged checks for $315 and $346 and the victims were elderly. Defense counsel did not object to the prosecutor's statements about the facts of the case. The prosecutor also argued a bank is not a commercial establishment. The prosecutor further asserted defendant's intent was to commit identity theft and elder abuse. (§§ 368 and 530.5.)
The court found that the amount of the forged check was under $950 and granted the petition reducing count 7 to a misdemeanor violation of section 459.5. The court also ordered the police report filed under seal and incorporated into the appeal.
III
DISCUSSION
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 his sentence when he filed his petition. Therefore his petition was an application for redesignation of his 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 his burglary offense was eligible for redesignation. B. Evidence Supporting Eligibility
The People argue defendant did not meet his burden of establishing eligibility because his 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 response to defendant's petition. The People did not forfeit their objection. In their response and at the hearing, the People raised the objection generally by arguing defendant did not meet his burden of proving his conviction qualified for redesignation.
Regardless of any forfeiture, we reject the People's contention that defendant did not meet his burden of proving eligibility on the merits. The prosecutor's statement, based on the police report, supported the trial court's reasonable finding that the check defendant attempted to cash at the bank was under $950. The police report established the forged check which was the basis for count 7 was either $315 or $346. By not objecting, both parties forfeited any objections to the court relying on the police report. (Evid. Code, § 353, subd. (a).) Sufficient evidence supported that defendant's burglary conviction was eligible for redesignation as misdemeanor shoplifting. C. Identity Theft and Elder Abuse
The People also contend defendant's felony burglary conviction is not eligible for redesignation as misdemeanor shoplifting because, when he entered the bank, he intended to commit identity theft or elder abuse or both. (§§ 268, subd. (d), and 530.5.) However, whether defendant intended to commit other crimes when he entered the bank, the undisputed facts establish he 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 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.
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) and elder abuse (§ 268, subd. (d)) are different crimes. Although there may be some overlap in the prohibited conduct, the statutes are concerned with remedying 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).) Elder abuse is a related crime and involves "(d) Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, . . ." (§ 368.)
The People do not dispute that defendant entered the bank and attempted to cash a forged check. Even though these facts support the proposition that 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. 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. D. Commercial Establishment
Finally, 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 "common sense" meaning of shoplifting, which would be its plain, ordinary meaning, limited to theft crimes from establishments displaying goods for sale, and not include banks. The court in Abarca, supra, 2 Cal.App.5th at pages 481-482, construed 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 his burglary conviction as misdemeanor shoplifting under section 459.5.
IV
DISPOSITION
We affirm the order granting defendant's petition for redesignation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.