Opinion
H043160
05-04-2017
THE PEOPLE, Plaintiff and Respondent, v. RENEE LYNN MARTINEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1364099)
Defendant Renee Lynn Martinez entered a Walmart, selected items from the shelves, and used old receipts to return the items for $102.34. In 2013, she pleaded no contest to one count of commercial burglary. (Pen. Code, §§ 459, 460, subd. (b).) The trial court suspended imposition of sentence and granted a three-year term of probation.
Subsequent undesignated statutory references are to the Penal Code.
In 2015, Martinez petitioned under Proposition 47 to redesignate the offense as misdemeanor shoplifting. (§ 459.5.) The trial court denied the petition on the ground that Martinez entered the Walmart with the intent to commit theft by fraud, not larceny. Martinez now appeals from the trial court's denial of her petition.
The California Supreme Court recently held that the term "larceny" as defined by section 459.5 is not limited to trespassory takings, but includes non-trespassory takings such as theft by false pretenses. (People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales).) Applying Gonzales here, we conclude the trial court erred by denying Martinez's petition. We will reverse and remand with instructions to grant the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report and the parties' pleadings below. Neither party disputes the facts set forth on appeal. --------
On December 29, 2012, Martinez entered a Walmart in Mountain View and selected various items from the shelves. A loss prevention officer saw her compare the items to receipts she already had in her possession. Martinez then took the items to customer service and fraudulently used the old receipts to return the items. The cashier accepted the items and gave Martinez $102.34 in cash and a gift card.
B. Procedural Background
In January 2013, the prosecution charged Martinez by felony complaint with one count of second degree burglary. (§§ 459, 460, subd. (b).) Martinez pleaded no contest to entering the Walmart with the intent to commit theft. In February 2013, the trial court suspended imposition of sentence and granted a three-year term of probation.
In October 2015, Martinez petitioned under section 1170.18, subdivision (f), to redesignate the offense misdemeanor shoplifting as defined in section 459.5. The prosecution opposed the petition on the ground that the offense constituted forgery, not shoplifting.
In December 2015, the trial court found Martinez ineligible for resentencing and denied the petition. The court ruled that Martinez did not enter the Walmart with the intent to commit larceny under section 459.5 because the offense involved theft by fraud, not a trespassory taking. The court relied on People v. Williams (2013) 57 Cal.4th 776, and People v. Gonzales (2015) 242 Cal.App.4th 35, reversed by Gonzales, supra, 2 Cal.5th 858.
II. DISCUSSION
Martinez contends the trial court erred by denying her petition because the offense constituted shoplifting under section 459.5. The Attorney General contends Martinez entered the Walmart with the intent to commit theft by false pretenses—a non-larcenous theft not included in the definition of shoplifting under section 459.5. The California Supreme Court rejected the Attorney General's argument in Gonzales, supra, 2 Cal.5th 858. We conclude the offense constituted shoplifting.
A. Background
In 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Act), reducing certain drug- and theft-related offenses to misdemeanors. Among other things, the Act added section 459.5, making the offense of "shoplifting" a misdemeanor: "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." (§ 459.5, subd. (a).) Section 459.5 mandates that shoplifting shall be punished as a misdemeanor except for persons having certain prior convictions not at issue here: "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." (§ 459.5, subd. (b).)
Proposition 47 also created a resentencing scheme for felony convictions for specified offenses made misdemeanors by the Act. (§ 1170.18, subds. (a) & (f).) Under subdivision (f), "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
B. Martinez Is Eligible for Resentencing Under Proposition 47
The parties do not dispute that Martinez entered a commercial establishment during regular business hours, nor that she took property valued at less than $950. The sole dispute concerns whether she entered the Walmart with the intent to commit larceny as defined by section 459.5.
In People v. Garrett (2016) 248 Cal.App.4th 82, review granted August 24, 2016, S236012 (Garrett), we applied Proposition 47 to a similar offense involving theft by false pretenses. Garrett entered a convenience store and attempted to use a stolen credit card to buy gift cards worth $50. Garrett had thereby entered the store with the intent to commit theft by false pretenses. We held the term "larceny" in section 459.5 includes such theft offenses because section 490a requires the term "larceny" to be construed as identical to the term "theft." (Id. at pp. 88-89.) Because section 484 defines theft to include taking property "by any false or fraudulent representation or pretense"—i.e., theft by false pretenses—we held that section 459.5 encompasses the fraudulent use of a credit card. (Id. at pp. 89-90.)
The California Supreme Court applied the same reasoning in Gonzales, supra, 2 Cal.5th 858. Gonzales stole his grandmother's checkbook and cashed one of her checks at a bank for $125 without her authorization. The high court rejected the Attorney General's argument that the term "larceny" as used in section 459.5 excluded non-trespassory takings such as theft by fraud or false pretenses. The court observed that section 459.5 defines "shoplifting" as a term of art that includes thefts not commonly defined as shoplifting in the colloquial sense. Applying section 490a, the court construed the term "larceny" in section 459.5 to include thefts without exclusion. The court concluded that entering a commercial establishment with the intent to commit theft by false pretenses constitutes shoplifting if the property taken is valued at not more than $950.
The holdings of Gonzales and Garrett compel the conclusion that Martinez's offense also constituted shoplifting. She entered a commercial establishment during business hours with the old receipts already in her possession. In other words, she entered the store with the intent to obtain refunds for the items listed on the receipts. By representing that she had already purchased the items she took from the shelves, she used false pretenses to obtain the refund. Thus, she entered the store with the intent to commit theft by false pretenses, which is included in the definition of "larceny" under section 459.5. Finally, the property taken was valued at not more than $950.
We conclude the offense constituted shoplifting, making Martinez eligible for resentencing under Proposition 47. We will order the trial court to grant the petition on remand.
III. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court. On remand, the court shall vacate the December 7, 2015 order denying the petition for redesignation, and the court shall enter a new and separate order granting the petition.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
GROVER, J.