Opinion
E064437
01-04-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CARL NAPOLI III, Defendant and Appellant.
John Derrick, 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, Charles C. Ragland and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1300131) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Reversed. John Derrick, 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, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
On January 25, 2013, a felony complaint charged defendant and appellant Anthony Carl Napoli III with entering a Circle K convenience store and committing second degree burglary under Penal Code section 459 (count 1); and misdemeanor fraudulent use of an access card or account information under section 484g, subdivision (a) (counts 2 and 3). The complaint also alleged two prior prison terms under section 667.5, subdivision (b), and two prior strike convictions under sections 667, subdivisions (c) and (e)(2)(a) and 1170.12, subdivision (c)(2)(a).
All further statutory references are to the Penal Code unless otherwise indicated.
On March 18, 2013, defendant pled guilty on all counts, and admitted the prison and strike priors. On November 21, 2013, the trial court struck one prior strike conviction and both prison priors, and imposed a term of one year four months in state prison for count 1, plus two consecutive six-month terms in county jail for counts 2 and 3. The trial court ordered restitution of $180 to one victim, and $400 to another, for a total of $480.
The trial court also sentenced defendant in three other cases. Combining the four cases, the court imposed a total term of 34 years in state prison and one year in county jail.
On February 6, 2015, as to the second degree burglary conviction, defendant filed a petition for recall of sentence under section 1170.18, subdivision (a). In the petition, defendant stated that the value of the stolen property did not exceed $950. The prosecution filed a response requesting a hearing to determine the value of the property taken during the burglary.
On July 24, 2015, the trial court found that defendant's second degree burglary conviction was ineligible for a misdemeanor reduction because it involved the use of a stolen credit card, and denied the petition. Defendant appeals.
DISCUSSION
A. SECTION 459.5 INCLUDES THEFT BY FALSE PRETENSES
In this case, defendant entered a guilty plea of burglary in violation of section 459. Specifically, he pled guilty to entering "a certain building located at CIRCLE K, 28968 GOETZ ROAD, QUAIL VALLEY, with intent to commit theft and a felony." Section 459 is not listed in Proposition 47, and remains after the effective date of Proposition 47. Second degree burglary, which is defined in relevant part as the entering of a building other than a residence "with intent to commit grand or petit larceny or any felony," remains punishable as either a misdemeanor or a felony. (§§ 459, 461, subd. (b).)
Proposition 47 added section 1170.18. Subdivision (a) of section 1170.18, provides in pertinent part, "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 in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."
Although Proposition 47 did not add section 459, it added section 459.5. Section 459.5 provides, "[n]otwithstanding 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)." (§ 459.5, subd. (a).) As such, shoplifting consists of four elements, which must be found by the trial court as follows: (1) entry into a commercial establishment; (2) while that establishment is open during regular business hours; (3) with the intent to commit larceny; and (4) the value of the property taken or intended to be taken does not exceed $950. (§ 459.5, subd. (a); see also People v. Contreras (2015) 237 Cal.App.4th 868, 892.) The crime of shoplifting, with certain exceptions not relevant here, is punishable only as a misdemeanor.
In this case, defendant contends the trial court erred in denying his motion under Proposition 47 because his "theft qualifies for Proposition 47 relief because it falls within the scope of Penal Code section 459.5." We agree. We addressed this issue in a recent decision, People v. Smith (2016) 1 Cal.App.5th 266 (Smith) (review granted Sept. 14, 2016, S236112). In Smith, the defendant pled guilty to two counts of burglary under section 459, and one count making, passing, uttering, publishing or possessing counterfeit bills under section 476. (Smith, at p. 269.) The defendant filed a petition under Proposition 47 for resentencing on all three counts, which the court denied. (Id. at p. 270.) The defendant appealed the trial court's denial of his petition only as to his two burglary convictions. (Ibid.)
Under amended California Rules of Court, Rule 8.1105(e)(1)(B), "Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court's certification of the opinion for full or partial publication."
On appeal, as relevant to this case, the People argued that section 459.5 did not apply to count 1 because the defendant "'failed to show that he committed larceny, meaning a trespassory taking.'" (Smith, supra, 1 Cal.App.5th at p. 274.) In count 1, the complaint charged the defendant of violating 459 because he presented counterfeit bills at a check-cashing establishment. In response to the People's argument, we explained that "section 490a provides that 'any law or statute . . . [that] refers to or mentions larceny . . . shall hereafter be read and interpreted as if the word "theft" were substituted therefor.' Section 459.5, subdivision (a), defines shoplifting as 'entering a commercial establishment with intent to commit larceny.' Thus, entering a commercial establishment with intent to commit theft is shoplifting." (Smith, at p. 274.) Therefore, we concluded that "larceny as the term appears in section 459.5, subdivision (a) includes theft by false pretenses and does not require a trespassory taking. Our Supreme Court has held '[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction.' [Citation.] Voters adopted the phrase 'intent to commit larceny' in section 459.5, which mirrors the intent element in the general burglary statute." (Id., at p. 274.)
In this case, defendant entered a commercial establishment "with intent to commit theft and a felony" by using stolen credit cards, and defendant pled guilty to that charge. Just as in Smith, the "People do not contend there was any predicate for [defendant's] burglary conviction other than the theft crimes. It follows that [defendant] need to no more to establish he entered [Circle K] with the intent to commit larceny." (Smith, supra, 1 Cal.App.5th at p. 274.)
The People acknowledge that this court has "recently held that shoplifting under section 459.5 includes theft by false pretenses [such as use of stolen credit cards] and does not require a trespassory taking." The People, however, argue that Smith, supra, was wrongly decided. Moreover, on December 2016, the People filed a letter with this court asking us to consider People v. Martin (Dec. 12, 2016, F071654) ___ Cal.App.5th ___ . The People wrote that the "case was published after the tentative opinion and is favorable to respondent's position in this case regarding Penal Code section 459.5." Although the People failed to provide an analysis of Martin, we have reviewed the case. In Martin, the Court of Appeal, Fifth Appellate District, held that the defendant's conviction for burglary—for entering a store and using forged checks—did not qualify as a larceny under section 459.5. The Martin decision is contrary to the decision we rendered in Smith, which is under review by the California Supreme Court. We disagree with the People and the Fifth District's recent decision in Martin, and will decide this case in accordance with our holding in Smith. --------
Additionally, just as in Smith, the People also contend that we should affirm on the alternative ground that defendant "failed to make the necessary showing that the value of the property did not exceed $950." In Smith, the defendant declared under penalty of perjury that "the value of the check or property does not exceed $950." In Smith, we found that the proper remedy was to remand for further proceedings, including an evidentiary hearing. (Smith, supra, 1 Cal.App.5th at p. 276.) In this case, defendant also declared that the value of the property did not exceed $950. In addition to defendant's declaration, the People concede that "it can be speculated that [defendant] possessed the first victim's credit card and the second victim's green card valued at $400, and at the very least charged $180 on the credit card when inside Circle K. Thus, it appears that the value of the property involved in the burglary may not have exceeded $950." Therefore, we agree with Smith that "the proper remedy in this case is to reverse the order denying relief and remand for the superior court to determine whether [defendant] satisfies the conditions for eligibility, including by holding a hearing to hear additional evidence related to the value of the stolen property." (Id. at p. 275.)
B. SECTION 530.5 (IDENTITY THEFT) IS NOT APPLICABLE
The People contend that Proposition 47 does not apply because defendant's crime inside Circle K could be construed as "identity theft" under section 530.5. We disagree.
As defendant as pointed out, "[a]s a preliminary observation, [defendant] was never charged with identity theft. And there has never been any finding by the lower court concerning that crime." Moreover, in a recent decision, the Sixth District Court of Appeal expressly rejected a claim that the use of a stolen credit card to obtain less than $950 worth of goods in a store fell outside of Proposition 47 on account of section 530.5. (People v. Garrett (2016) 248 Cal.App.4th 82, 84, 88, review granted Aug. 24, 2016, S236012.) The court stated: "We will assume, for the sake of argument, that the record contains substantial evidence that defendant entered the QuikStop with the intent to commit felony identity theft under Penal Code section 530.5. 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 by a misdemeanant if the value of the property to be taken is not more than $950. (Pen. Code, § 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. (Pen. Code, § 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. (Pen. Code, § 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. Accordingly, the dispositive issue is whether that act fell within the definition of 'shoplifting' under Section 459.5." (Id. at pp. 87-88.)
We agree with the holding in People v. Garrett, supra, 248 Cal.App.4th 82, and find the People's argument to be without merit.
DISPOSITION
We reverse the order denying defendant's petition for resentencing and remand for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.