Opinion
E065913
02-21-2017
THE PEOPLE, Plaintiff and Appellant, v. GERARDO ENRIQUEZ CAMPOS, Defendant and Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF120332) 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. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Respondent.
I
INTRODUCTION
The People appeal the trial court order granting defendant Gerardo Enriquez Campos's petition under Proposition 47 (Pen. Code, § 1170.18) for redesignation of his commercial burglary conviction (§ 459) as misdemeanor shoplifting (§ 459.5). In November 2004, defendant was apprehended at a bank, attempting to cash a stolen, forged check. The People contend defendant did not meet his burden of showing eligibility for redesignation of his felony burglary conviction as a misdemeanor. The People also argue defendant's burglary offense did not qualify as misdemeanor shoplifting because defendant entered a bank with intent to commit identity theft, not larceny, and a bank is not a "commercial establishment" under Proposition 47. We reject the People's arguments and affirm the trial court 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
During the afternoon of November 12, 2004, a vigilant bank teller confirmed defendant was attempting to cash a $250 forged check. The bank teller called the account holder, defendant's mother, Silvia C., who had recently reported the check stolen. The police apprehended defendant at Union Bank.
The People filed a felony complaint charging defendant with four crimes committed on November 12, 2004: (1) second degree burglary, by willfully and unlawfully entering Union Bank with intent to commit theft and a felony (§ 459; count 1); (2) forgery, by willfully and unlawfully possessing a completed check with intent to cash the check, in order to defraud Union Bank and his mother, Silvia C. (§ 475, subd. (c); count 2); (3) forgery, by willfully and unlawfully possessing a blank check with intent to complete the check, in order to defraud Silvia C. (§ 475, subd. (b); count 3); and (4) receipt of stolen property consisting of stolen checks (§ 496, subd. (a); count 4). The complaint further alleged defendant violated his probation in two other cases, by committing the charged offenses.
Defendant pled guilty to count 1, second degree burglary (§ 459). During the plea hearing, the trial court accepted the parties' stipulation that facts supported the conviction, and that the factual basis was based on the police report. The court then sentenced defendant to three years' probation and dismissed the other charges. In 2005, defendant violated his probation. The trial court ordered defendant's probation revoked and sentenced defendant to 16 months in prison.
After the voters enacted Proposition 47 in November 2014, which reduced certain drug and theft offenses to misdemeanors, defendant filed a form petition for redesignation of his burglary conviction to misdemeanor shoplifting (petition or petition for redesignation). Defendant filed his petition in propria person, in June 2015, and did not provide any supporting evidence. The People filed a form response. The People did not check the box stating that defendant's conviction was not a qualifying felony. Instead, the People stated the reason they objected to defendant's petition was that "Bank is not a commercial establishment." The trial court ordered the matter set for a hearing and noted the trial court had the police report.
On February 26, 2016, the trial court granted defendant's petition and ordered defendant's burglary conviction redesignated as misdemeanor shoplifting (§ 495.5). The court further ordered the police report filed under seal and incorporated into the appeal. During the hearing on defendant's petition, the prosecutor argued the bank was not a commercial establishment. The prosecutor further argued: "Additionally, the defendant tried to cash a stolen check from his mother. He had several checks on him. The one he tried to cash was 250, but all of the stolen checks that he had on him were $1,231. And then one was blank. So our argument is that his intent was to commit a 530.5, not shoplifting. [¶] His mother is the victim, not the store. If the Court does not agree with that, then the value of the stolen checks, he was in possession of essentially a 496 felony, because it was $1,231."
The trial court rejected the People's arguments, concluding that "[w]hat he pled to was one 459 second when he went in to cash the check for 250. So I will find he is eligible." The court explained that defendant's burglary conviction was eligible for redesignation as misdemeanor shoplifting (§ 459.5) because defendant entered the bank with intent to cash the $250 forged check that belonged to his mother. The court added that the People could file the police report under seal. The People said it would do so.
III
ESTABLISHING ELIGIBILITY
The People contend the trial court erred in granting defendant's petition for redesignation because defendant did not meet his burden of showing his felony burglary offense was eligible for redesignation as misdemeanor shoplifting. 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 on the felony burglary conviction 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 their response to defendant's petition. We agree. The People did not raise the objection in their form response to the petition or during the hearing on the petition. "It is settled that points not raised in the trial court will not be considered on appeal. [Citations.] This rule precludes a party from asserting on appeal claims to relief not asserted in the trial court." (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422; see People v. Gillard (1997) 57 Cal.App.4th 136, 160.) The People forfeited their objection raised for the first time on appeal that defendant failed to meet his burden of establishing eligibility by not presenting any evidence of the underlying facts of his burglary offense.
Even assuming the People did not forfeit the contention, we reject it. The police report (incident report) established eligibility. During defendant's guilty plea, the trial court accepted the parties' stipulation that facts supported the conviction, and stated that the police report provided a factual basis for the plea.
The incident report stated that the investigating officer interviewed bank employees, defendant's mother, and defendant. Based on the interviews, the officer reported that, during the afternoon of November 12, 2004, a vigilant bank teller confirmed defendant was attempting to cash a $250 forged check. The bank teller called the account holder, defendant's mother, who said she had recently reported the check stolen. The bank teller handed the investigating officer the forged $250 check, a copy of which was attached to the police report. Also attached were copies of three other checks stolen from Silvia C. The checks were found in defendant's possession at the bank.
When the trial court set the hearing on defendant's petition for redesignation, the court acknowledged that it had the incident report. It can be reasonably inferred that the court considered the facts in the incident report when ruling on the petition. In addition, during the hearing on the petition, at the court's suggestion, the People agreed to filing the police report under seal. Neither party objected to the trial court or this court considering the facts in the incident report, and therefore forfeited any objections to doing so. (Evid. Code, § 353, subd. (a).)
Furthermore, the facts which established eligibility for redesignation of the burglary offense were undisputed. The prosecutor summarized during the petition hearing the facts as follows: "[T]he defendant tried to cash a stolen check from his mother. He had several checks on him. The one he tried to cash was 250, but all of the stolen checks that he had on him were $1,231. And then one was blank."
The People also state in their opening brief on appeal, in the statement of facts, that "On November 12, 2004, respondent entered the Union Bank in Glen Avon and attempted to cash a stolen check in the name of his mother, Silvia [C.], for $250. (CT 26, 30.) When the teller compared Silvia [C.'] signature on file, it did not match. He entered the check into the computer system and it was listed as stolen. The bank called Silvia [C.] who reported that the check was stolen and she suspected her son had taken it. The bank called the police, who arrested respondent. During the search incident to arrest, officers located three additional Union Bank checks from the victim's account. (CT 26.) One check was blank, one check was written for $65 and one check was written for $1,231. (CT 30.) Respondent admitted that he stole the checks from his mother because he needed the money. He admitted to trying to cash the forged check at the bank. He claimed he successfully cashed a forged check from his mother's account the day before for $275. He also admitted to successfully cashing three other checks earlier in the week at a liquor store. (CT 27.)"
These facts establish that defendant committed the burglary offense by entering a bank with intent to cash a forged $250 check. Such facts are sufficient to support the trial court's finding that defendant's burglary conviction was eligible for redesignation as misdemeanor shoplifting. It is well established that a party "is bound by the stipulation or open admission of his counsel and cannot mislead the court and jury by seeming to take a position on issues and then disputing or repudiating the same on appeal." (People v. Pijal (1973) 33 Cal.App.3d 682, 697.) Even though defendant did not submit any evidence in support of his petition for redesignation, the trial court did not abuse its discretion in granting defendant's petition based on the facts in the police report and based on the People's admission of the underlying facts which support eligibility.
IV
IDENTITY THEFT
The People 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. We are not persuaded. Regardless of whether defendant may have intended to commit identity theft, 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 resentencing.
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) are different crimes. Although there may be some overlap in the conduct that identity theft and the forgery statutes prohibit, the statutes are concerned with remedying two 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).)
The People do not dispute that defendant entered the bank and attempted to cash a forged $250 check. Even though these facts support the proposition 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 for this. 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, 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." (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.
V
COMMERCIAL ESTABLISHMENT
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 commonsense meaning of shoplifting, which would be its plain, ordinary meaning, limited to theft crimes of establishments which have goods on display. This would not include banks. We disagree. We reject this proposition, as did the court in Abarca, supra, 2 Cal.App.5th at pages 481-482. As in Abarca, supra, 2 Cal.App.5th 475, we construe 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 and redesignating his burglary conviction as misdemeanor shoplifting under section 459.5.
VI
DISPOSITION
The order granting defendant's petition for redesignation is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.