Opinion
F073320
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. ELAINE KRISTINA VILLARREAL, Defendant and Appellant.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. F14907021, F15901480)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Appellant Elaine Kristina Villarreal appeals from the denial of her petition for resentencing, filed pursuant to Proposition 47. Appellant contends she was eligible for reduction on one of her second degree burglary convictions (Pen. Code, §§ 459, 460, subd. (b)) because she entered a commercial establishment with the intent to commit larceny by depositing and withdrawing funds from fraudulent accounts with fraudulent checks. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant has an extensive history of alleged fraudulent conduct and identity theft. In July 2014, she was charged with 11 criminal counts including allegations of identity theft, unlawful driving or taking of a vehicle, receiving stolen property, second degree commercial burglary, obtaining property by false pretenses, and forgery. Then, in March 2015, appellant was charged with another 35 criminal counts, including multiple identity theft, forgery and second degree burglary charges. At the same time, appellant was facing various charges in multiple other proceedings.
Appellant ultimately entered into a plea deal that would resolve several of her cases, including both the July 2014 and March 2015 charges. As part of that deal, appellant pled guilty to count five from the March 2015 case, which charged appellant with committing the crime of second degree commercial burglary on or about June 30, 2014, by entering Citibank with the intent to commit larceny or any felony. Appellant ultimately received a 10-year sentence, with two years on the lead count and a series of consecutive sentences of eight months for her various other convictions, including her conviction on count five.
According to the probation report and as relevant to this appeal, appellant was caught trying to pass a bad cashier's check at a Fresno Citibank location. A subsequent investigation revealed appellant had opened at least two accounts in one of her victims' names and then used those accounts to deposit several fraudulent checks or cashier's checks and to withdraw funds. With respect to the facts supporting count five, the probation report shows that on June 30, 2014, appellant made two deposits totaling $600 into one fraudulently obtained account and a deposit of $250 into and a withdrawal of $200 from the second account. It is unclear whether one, some, or all of these transactions supported the allegation in count five.
Appellant engaged in multiple fraudulent schemes, including attempts to purchase vehicles using others' credit, which are not relevant to this appeal.
On September 10, 2015, appellant filed a petition for resentencing, identifying her 2014 and 2015 cases as eligible for resentencing. The trial court denied appellant's petition, finding that appellant's multiple second degree burglary convictions were not eligible for resentencing because they did not constitute shoplifting. This appeal timely followed.
On appeal, appellant only argues an error in denying resentencing for count five. It is unclear why appellant did not challenge the denial of other second degree burglary charges on the same grounds.
DISCUSSION
Appellant argues the trial court erred by failing to recognize that her conduct qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47. Standard of Review and Applicable Law
Appellant also appears to argue her conviction should have been treated as misdemeanor petty theft. This argument relies on the flawed factual claim that appellant's charge arose from depositing a $20 check. The $20 check was deposited on June 26, 2014, and thus appellant's conduct could not support the assertion in count five, which alleged the illegal conduct occurred on June 30, 2014. Moreover, even if factually correct, the mere fact a petty theft could have been charged does not demonstrate appellant would have been convicted of a misdemeanor had Proposition 47 been in effect when she committed her crimes, which is the standard for determining eligibility. (See § 1170.18, subd. (a).) We therefore reject this argument.
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] A person who satisfies the criteria in 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." ' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448 (Rivas-Colon).)
"Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor '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).) '[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. (§ 459.5.)' " (Rivas-Colon, supra, 241 Cal.App.4th at p. 448.)
The court's review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114.) Factual findings of the trial court are reviewed "for substantial evidence and the application of those facts to the statute de novo." (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) The record is viewed in the light most favorable to the trial court's ruling with a presumption that the order was correct. (Ibid.) Appellant's Conduct Does Not Qualify as Larceny
This court recently analyzed the meaning of the shoplifting statute and found that larceny, as used in that statute, should be interpreted according to its common-law definition. (People v. Martin (2016) 6 Cal.App.5th 666, 683, review granted February 15, 2017, S239205.) As such, to demonstrate eligibility, appellant must point to facts showing an intent to commit a trespassory taking, among other elements. (Id. at pp. 674-675.) As we detailed in Martin, intending to commit theft by false pretenses does not qualify as larceny under this definition. (Id. at pp. 683-684.) The facts as presented on appeal show appellant fraudulently attempted to obtain money through transactions presented as legitimate. This fails to satisfy the common-law definition of larceny, as there was no intent to commit a trespassory taking. Appellant's second degree burglary conviction, therefore, does not qualify for reduction.
We recognize this issue is currently before the California Supreme Court. --------
DISPOSITION
The order is affirmed.