Opinion
H043110
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. LEANNA DAWN WILLIAMS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1348512)
I. INTRODUCTION
Defendant Leanna Dawn Williams pleaded no contest to one felony count of acquiring or retaining the identifying information of ten or more persons with the intent to defraud (Pen. Code, § 530.5, subd. (c)(3)), three felony counts of second degree burglary (§§ 459, 460, subd. (b)), and one felony count of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a)). Defendant also admitted the allegations that she had served two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to a total term of four years four months.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant later filed a petition for resentencing pursuant to section 1170.18, which was enacted as part of Proposition 47, in which she sought resentencing of her felony convictions for second degree burglary as misdemeanor shoplifting under section 459.5. Defendant also sought resentencing of her felony conviction for possession of a controlled substance as a misdemeanor. The trial court granted the petition as to the felony conviction for possession of a controlled substance and denied the petition as to the felony convictions for second degree burglary. The court determined that the burglary offenses did not constitute shoplifting under section 459.5 because the offenses did not involve entry with the intent to commit larceny.
On appeal, defendant contends that the trial court erred in denying her petition as to the three counts of second degree burglary because those offenses were eligible for resentencing under Proposition 47 as misdemeanor shoplifting. For reasons that we will explain, we agree. We will therefore reverse the trial court's order and remand the matter for further proceedings.
The record on appeal and the parties' briefing do not clarify whether defendant has completed her sentence. We will therefore treat defendant's "memorandum of points and authorities" as it has been argued, as a petition for resentencing under section 1170.18, subdivision (a).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Convictions
The complaint filed in January 2013 charged defendant with acquiring or retaining the identifying information of ten or more persons with the intent to defraud (§ 530.5, subd. (c)(3); count 1); six counts of second degree burglary—entering with intent to commit theft (§§ 459,460, subd. (b); counts 2-7); receiving stolen property (§ 496, subd. (a); count 8); using an altered, stolen, or counterfeit access card (§§ 484g, subd. (a), 487; count 9); possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 10); and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364.1; count 11). It was also alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)).
In February 2013 defendant pleaded no contest to one felony count of acquiring or retaining the identifying information of ten or more persons with the intent to defraud (§ 530.5, subd. (c)(3); count 1); three felony counts of second degree burglary (§§ 459, 460, subd. (b); counts 2-4); and one felony count of possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 10). Defendant also admitted the allegations that she had served two prior prison terms (§ 667.5, subd. (b)). Regarding the burglary counts, it was alleged in the complaint that defendant had entered three stores, a Wal-Mart (count 2) and two Tilly's clothing stores (counts 3 & 4) with intent to commit theft.
According to the probation report submitted in connection with the June 18, 2013 sentencing hearing, defendant paid for a "cart-full of merchandise" in a Wal-Mart store on December 11, 2012, using a fraudulent Overstock.com Mastercard. On December 13, 2012, defendant paid $152.75 for merchandise at a Tilly's clothing store in the Eastridge Mall using the same fraudulent Overstock.com Mastercard credit card. Defendant used the fraudulent Overstock.com Mastercard credit card for a third time on December 14, 2012, to make a purchase of $130.01 at a Tilly's clothing store on Almaden Expressway. The probation report also stated that defendant was present during a probation search conducted on December 21, 2012, where credit cards and checks belonging to several victims were found, along with personal identifying information.
At the sentencing hearing, the trial court imposed a total term of four years four months, which was split into a three-year prison sentence followed by a term of one year four months of mandatory supervision by the probation department.
B. Petition for Resentencing
In November 2015 defendant filed a petition for resentencing pursuant to section 1170.18 in which she argued that her three felony convictions for second degree burglary (counts 2-4) were eligible for resentencing as misdemeanor shoplifting under section 459.5. According to defendant, her conduct constituted shoplifting within the meaning of section 459.5 because she had entered various commercial establishments (Wal-Mart and Tilly's) during business hours with the intent to commit a theft under $950. Defendant asserted that the police report showed that her fraudulent credit card purchase at Wal-Mart was in the amount of $401.01 and her two fraudulent credit card purchases at Tilly's were in the amounts of $152.75 and $130.01. The police report was not included in the record on appeal.
Defendant stated in a footnote that she anticipated that the People would concede that her felony conviction for possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 10) was eligible for resentencing. The available record indicates that the People did not file opposition to the petition for resentencing.
On December 14, 2015, the trial court granted the petition in part and denied it in part. The petition was granted as to count 10, possession of a controlled substance, and denied as to counts 2-4, second degree burglary. During the hearing on the petition, the trial court stated: "[T]he felony offenses in Counts Two, Three and Four, violations of Penal Code Section 459/460(b), are ineligible in that these did not involve entry with the intent to commit larceny but rather to obtain merchandise and cash by unauthorized use of an access card, and therefore I find her ineligible in these three offenses."
Defendant subsequently filed a timely notice of appeal from the December 14, 2015 order.
III. DISCUSSION
A. Legal Background: Proposition 47
On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 amended certain statutes to reduce those offenses to misdemeanors and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326 (Chen).)
Relevant here, "Proposition 47 created a new crime of 'shoplifting,' a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary." (In re J.L. (2015) 242 Cal.App.4th 1108, 1112 (J.L.).) Burglary is entry into "any . . . shop, warehouse, store, . . . or other building, . . . with intent to commit grand or petit larceny or any felony." (§ 459.) Second degree burglary, which generally encompasses burglary of any structure other than an inhabited dwelling house, may be punished as a misdemeanor or a felony. (§§ 460, subds. (a) & (b), 461, subd. (b); Chen, supra, 245 Cal.App.4th at p. 326.) "The offense of burglary, when charged as a felony under section 459, remains a felony offense following the passage of Proposition 47 unless the defendant's criminal conduct" meets the elements of shoplifting under section 459.5. (Chen, supra, at p. 327.)
Under section 459.5, "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." (Id., subd. (a), italics added.) If a defendant's conduct meets the definition of shoplifting, it "shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (Id., subd. (b).)
"The voter information guide for Proposition 47 explained that '[u]nder current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary.' [Citation.]" (J.L., supra, 242 Cal.App.4th at p. 1112.)
A defendant who is currently serving his or her sentence for a felony conviction, and who would have been guilty of a misdemeanor if the Act had been in effect at the time of the offense, may file an application to have the felony conviction resentenced as a misdemeanor. (§ 1170.18, subd. (a).) If the petitioner satisfies the criteria in section 1170.18, subdivision (a), the trial court must recall the petitioner's felony sentence and resentence the petitioner to a misdemeanor unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning." (People v. Perkins (2016) 244 Cal.App.4th 129, 139.)
B. Analysis
On appeal, defendant contends that the trial court erred in denying her petition for resentencing of her felony convictions for second degree burglary. Defendant asserts that it is undisputed that in each of her three second degree burglary offenses she entered a commercial establishment during regular business hours with intent to commit theft of items with a value of less than $950, and therefore the offenses meet the section 459.5 definition of shoplifting and are eligible for resentencing.
Although defendant acknowledges that the shoplifting statute, section 459.5, expressly provides that "shoplifting is defined as entering a commercial establishment with intent to commit larceny," she argues that section 490a mandates that the word "theft" be substituted for "larceny." Section 490a provides: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor."
The Attorney General disagrees with defendant's interpretation of section 459.5. She argues that the plain language of section 459.5 limits criminal liability for shoplifting to only one theory of theft, which is larceny. According to the Attorney General, larceny " 'requires the taking of another's property, with the intent to steal and carry it away,' " which is consistent with the commonly understood meaning of "shoplifting" as taking merchandise displayed in a store. Since defendant stated in her petition that she had committed "theft as defined in [section] 484 by using the fraudulent credit card," the Attorney General argues that her offenses do not satisfy the larceny element of shoplifting.
"Where an appeal involves the interpretation of a statute enacted as part of a voter initiative, the issue on appeal is a legal one, which we review de novo. [Citation.]" (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) We will therefore resolve the issue of whether the trial court erred in denying defendant's petition to resentence the three counts of second degree burglary as misdemeanor shoplifting under section 459.5 by applying the rules of statutory interpretation.
The issue of whether a conviction for second degree burglary may be resentenced as misdemeanor shoplifting under section 1170.18 is before the California Supreme Court. (People v. Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171 ["This case presents the following issue: Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?" (http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2128068&doc_no=S231171)]; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673; People v. Garrett (2016) 248 Cal.App.4th 82, review granted Aug. 24, 2016, S236012 (Garrett).)
"When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure. [Citation.]" (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
The statute at issue here, section 459.5, provides: "(a) Notwithstanding Section 459 [burglary], 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. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior [specified] convictions . . . may be punished pursuant to subdivision (h) of Section 1170. [¶] (b) 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." (Italics added.)
To determine whether defendant's second degree burglary offenses of using a fraudulent credit card to obtain store merchandise constitutes shoplifting under section 459.5, we must construe the phrase "intent to commit larceny" in section 459.5, subdivision (a).
"The common law defined larceny as the taking and carrying away of someone else's personal property, by trespass, with the intent to permanently deprive the owner of possession. [Citations.]" (People v. Williams (2013) 57 Cal.4th 776, 782 (Williams).) "Britain's 18th century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states. That import has been widely criticized in this nation's legal community because of the seemingly arbitrary distinctions between the three offenses and the burden these distinctions have posed for prosecutors. [Citations.]" (Id. at pp. 784-785.) "For instance, it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick." (Id. at p. 785.)
"In the early 20th century, many state legislatures, recognizing the burdens imposed on prosecutors by the separation of the three crimes of larceny, false pretenses, and embezzlement, consolidated those offenses into a single crime, usually called 'theft.' " (Williams, supra, 57 Cal.4th at p. 785, fn. omitted.) This was accomplished in California by amending section 484. (Williams, supra, at p. 785.) " 'The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' [Citations.]" (Id. at p. 786.)
Section 484, subdivision (a) states: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft."
At the same time the Legislature amended section 484, it also enacted section 490a, which states: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor." (See People v. Nguyen (1995) 40 Cal.App.4th 28, 31 (Nguyen).) Burglary requires an "intent to commit grand or petit larceny or any felony." (§ 459, italics added.) By enacting section 490a, "the Legislature has indicated a clear intent that the term 'larceny' used in the burglary statute [(§ 459)] should be read to include all thefts, including 'petit' theft by false pretenses." (Nguyen, supra, at p. 31.) In other words, "[a]n intent to commit theft by a false pretense . . . will support a burglary conviction. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 354 (Parson); accord, People v. Fusting (2016) 1 Cal.App.5th 404, 409.)
Under the rules of statutory interpretation we construe the "intent to commit larceny" language in section 459.5 in "the context of the statute as a whole and the overall statutory scheme." (People v. Rizo (2000) 22 Cal.4th 681, 685.) "The voters are presumed to have been aware of existing laws at the time the initiative was enacted. [Citation.]" (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1048.) In addition, " ' "[w]hen legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] intended the same construction, unless a contrary intent clearly appears." ' [Citation.]" (Fusting, supra, 1 Cal.App.5th at p. 409; accord, People v. Burton (1989) 48 Cal.3d 843, 861-862.)
Here, the shoplifting statute refers to the crime of burglary twice and specifically refers to the burglary statute, section 459, once. (§ 459.5, subds. (a) & (b).) The shoplifting statute, similar to the burglary statute, also requires an "intent to commit larceny." (§ 459.5, subd. (a), italics added.) Given the shoplifting statute's repeated references to the burglary statute, given that both statutes use the term larceny, given that the term larceny in the burglary statute has been construed to include all thefts (Nguyen, supra, 40 Cal.App.4th at p. 31; see § 490a; Parson, supra, 44 Cal.4th at p. 354 ), and given the presumption that the electorate intends the same construction of an identical term in the absence of a clear intent to the contrary (Fusting, supra, 1 Cal.App.5th at p. 409), we believe the phrase "intent to commit larceny" in the shoplifting statute should be construed to include theft. Other appellate courts have reached the same conclusion. (See Fusting, supra, at p. 411; Garrett, supra, 248 Cal.App.4th at pp. 88-90, review granted; People v. Smith (2016) 1 Cal.App.5th 266, 274, review granted Sept. 14, 2016, S236112; People v. Hudson (2016) 2 Cal.App.5th 575, 582-583, review granted Oct. 26, 2016, S237340.)
Therefore, in light of the statutory scheme involving larceny we construe the phrase "intent to commit larceny" in section 459.5 as including an intent to commit theft. Defendant's plea of no contest to the offense of second degree burglary with intent to commit theft satisfies the "intent to commit larceny" element of section 459.5. (See Fusting, supra, 1 Cal.App.5th at p. 411.) Accordingly, her convictions for second degree burglary are eligible for resentencing under section 1170.18.
We are not persuaded by the Attorney General's contrary argument that voters intended the shoplifting statute to encompass only the "common understanding" of shoplifting. "The statute does not contain any definition of 'shoplifting' other than setting forth the elements of the offense in the specific language of section 459.5." (Fusting, supra, 1 Cal.App.5th at p. 410.) Likewise, Proposition 47 in general does not indicate that voters intended section 459.5 to be limited to the "common understanding" of shoplifting.
Moreover, as one appellate court has explained, interpreting the term larceny in the shoplifting statute to include theft "is consistent with the voters' overall intent in passing Proposition 47. Proposition 47 was intended to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.' [Citation.] Petty theft by false pretenses is precisely the type of nonserious, nonviolent crime Proposition 47 was aimed toward affecting. For example, Proposition 47 also made the crimes of forgery and drafting checks without sufficient funds of less than $950 misdemeanors. (§§ 473, subd. (b), 476a.) Moreover, theft by false pretenses is less likely to involve violence than a situation where a person has the intention to steal openly displayed merchandise from a store. To provide misdemeanors for that type of theft, but not for theft by false pretenses, would contradict the voters' general intent of requiring misdemeanors for nonserious, nonviolent theft crimes." (Fusting, supra, 1 Cal.App.5th at p. 411.) The California Supreme Court recently stated that "[o]ne of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; . . ." (Harris v. Superior Court (2016) 1 Cal.5th 984, 992.)
The Attorney General also relies on the decision in Williams, supra, 57 Cal.4th 776 to support the contention that the phrase "intent to commit larceny" in section 459.5 is not equivalent to an "intent to commit theft by false pretenses," and therefore section 459.5 does not include defendant's offense of second degree burglary with intent to commit theft. However, the decision in Williams does not aid the Attorney General because the issue in Williams was different. The Williams court considered whether the "felonious taking of personal property in the possession of another" element of the crime of robbery (§ 211) could be satisfied only by the crime of theft by larceny, or whether it could also be satisfied by the crime of theft by false pretenses. (Williams, supra, at pp. 781-782.) The court determined that the phrase "felonious taking" in the statutory definition of robbery was "intended to refer only to theft committed by larceny and not to theft by false pretenses." (Id. at p. 790.) It rejected the dissent's contention that section 211 should be construed to include the word "theft" pursuant to section 490a on the ground that section 490a does not mention robbery. (See Williams, supra, at pp. 796-797 (dis. opn. of Baxter, J.).)
Section 211 provides: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." --------
For these reasons, we conclude that defendant's convictions for second degree burglary (§§ 459, 460, subd. (b); counts 2-4) are eligible for resentencing as misdemeanor shoplifting (§ 459.5) under section 1170.18. We will therefore reverse the trial court's order denying defendant's petition for resentencing and remand the matter for further proceedings.
IV. DISPOSITION
The order denying defendant's petition for resentencing under Penal Code section 1170.18 is reversed and the matter is remanded to the trial court to determine, in the court's discretion, whether defendant would pose an unreasonable risk of danger to public safety under Penal Code section 1170.18, subdivision (b).
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.