Opinion
E065631
04-05-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNY WAYNE COX, Defendant and Appellant.
Rex Adam Williams, 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, Senior Assistant Attorney General, and Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITON FOR REHEARING [CHANGE IN JUDGMENT] THE COURT: The petition for rehearing is denied. The opinion filed in this matter on April 5, 2017 is modified as follows: 1. On page 8, the paragraph after "DISPOSITION" is deleted and replaced with the following:
As it is undisputed that the value of the property involved in count 2 (burglary) was not more than $950, the order appealed from is modified so as to grant the petition with respect to count 2. The order appealed from is further modified so as to give defendant leave to file an amended petition with respect to count 10 (burglary) and counts 27, 31, and 33 (acquisition of access card information). On remand, the trial court shall set a reasonable deadline for the filing of any such amended petition, and it shall have discretion to continue that deadline for good cause shown.Except for this modification, the opinion remains unchanged. This modification does effect a change in the judgment. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF147801) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed in part, reversed in part, and remanded with directions. Rex Adam Williams, 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, Senior Assistant Attorney General, and Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Kenny Wayne Cox (defendant) filed a petition for resentencing under Proposition 47. The trial court refused to reduce two counts of burglary to misdemeanors, reasoning that this crime is a misdemeanor under Proposition 47 only if committed with the intent to commit larceny, whereas defendant intended to commit identity theft. It also refused to reduce three counts of unauthorized acquisition of access card information to misdemeanors, reasoning that this crime remains a felony under Proposition 47. In both respects, it erred.
I
PROCEDURAL BACKGROUND
In 2011, defendant pleaded guilty to some 42 counts. (See Attachment A.) He also admitted various enhancements and sentencing allegations. As a result, he was sentenced to 28 years 8 months in prison.
In 2014, defendant filed a petition to reduce these convictions to misdemeanors pursuant to Proposition 47. The trial court granted the petition in part and denied it in part, as more specifically shown on Attachment A. (The counts involved in this appeal are shown in bold.) The aggregate sentence was unchanged.
II
DISCUSSION
A. Statutory Background.
Proposition 47 reduced specified theft-related offenses — provided they involve property worth $950 or less — as well as specified drug-related offenses from felonies (or wobblers) to misdemeanors. (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2016 rev. ed.) pp. 24-28.)
Available online at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of April 5, 2017.
Proposition 47 allows persons previously convicted of a felony who would now only be guilty of a misdemeanor to petition to reduce the conviction. Specifically, it enacted Penal Code section 1170.18, which, as relevant here, provides:
"(a) A person . . . serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under th[is] act . . . had this act been in effect at the time of the offense may petition for a recall of sentence . . . to request resentencing in accordance with . . . Section 459.5 [or] 490.2 . . . of the Penal Code, as those sections have been amended or added by this act.
"(b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced . . . ."
B. Burglaries Committed with the Intent to Commit Identity Theft.
1. Additional factual and procedural background.
The police reports that provided the factual basis for the plea are not in the record. Our facts are therefore taken from the prosecution's sentencing memorandum.
Count 2 alleged the burglary of a Radio Shack on July 26, 2008. Count 10 alleged the burglary of a Sears on January 1, 2009.
On July 26, 2008, defendant entered a Radio Shack and attempted to buy a PlayStation 3 and related equipment by writing a check for $554.88 in the name of one "Jeffrey Tooth." As identification, he presented a fake driver's license with his photo but Tooth's name and signature.
On January 1, 2009, defendant entered a Sears and bought a 32-inch Samsung television, using a fake identification card in the name of one "Carol Devine."
2. Analysis.
The trial court denied the petition with respect to these counts on the ground that "[d]efendant entered to commit ID theft." Defendant contends that this was error.
The key question is whether defendant was "[a] person . . . who would have been guilty of a misdemeanor under [Proposition 47]." (Pen. Code, § 1170.18, subd. (a).)
Proposition 47 created the new crime of "shoplifting." (Pen. Code, § 459.5.) "[S]hoplifting 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)." (Id., subd. (a).) Proposition 47 also provides that, when a defendant is guilty of shoplifting, he or she cannot be convicted of burglary or theft of the same property. (Id., subd. (b).)
Proposition 47 did not change the definition of burglary, which consists of entering a building (or any of the other areas specified in the statute) with the "intent to commit . . . larceny or any felony . . . ." (Pen. Code, § 459.)
The People do not dispute that Radio Shack and Sears were commercial establishments or that they were open during regular business hours. They argue, however, that, because defendant intended to commit identity theft (Pen. Code, § 530.5), as opposed to larceny, he could still be punished for burglary.
The record shows that defendant did intend to commit larceny. By statute, larceny is synonymous with theft. (Pen. Code, § 490a.) Theft can be committed in various ways; one is theft by false pretenses. (Pen. Code, § 484, subd. (a).) Theft by false pretenses consists of "knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of money, labor or real or personal property . . . ." (Ibid.) Here, defendant committed larceny (or attempted larceny) by false pretenses when he falsely claimed to be Jeffrey Tooth and Carol Devine. (See People v. Bell (2011) 197 Cal.App.4th 822, 828 [renting apartment by using other person's identity constituted larceny by false pretenses].)
Arguably defendant had dual intents — both the intent to commit larceny, which would make him guilty of shoplifting, and the intent to commit identity theft, which would make him guilty of burglary. Even if so, Penal Code section 1170.18, subdivision (a) focuses on whether the petitioner is "a person . . . who would have been guilty of" shoplifting. (Italics added.) This is not affected by the fact that he or she might also have been guilty of burglary. Quite the contrary, Proposition 47 provides that such a person cannot "be charged with burglary or theft of the same property." (Pen. Code, § 459.5, subd. (b).)
The People also argue that "shoplifting" should be construed as limited to "its commonly understood and common law definition," namely, "stealing items offered for sale in a store." However, defendant did steal (or attempt to steal) items offered for sale in a store. In any event, Penal Code section 459.5 provides a special definition of shoplifting for purposes of Proposition 47; the plain meaning of that definition is broader than the "commonly understood" definition. For example, it defines a mere entry as shoplifting, even if nothing is actually taken. It also specifies the required intent simply as the intent to commit larceny, which can be committed not only by a taking, but also by false pretenses or by embezzlement. (See People v. Vidana (2016) 1 Cal.5th 632, 639; People v. Williams (2013) 57 Cal.4th 776, 787.) And "commercial establishment" encompasses far more than the retail store that is the paradigmatic scene of a shoplifting. (See In re J.L. (2015) 242 Cal.App.4th 1108, 1114.)
Finally, the People argue, alternatively, that defendant failed to show that the television involved in count 10 was worth $950 or less. Defendant pleaded guilty to a separate count of grand theft, which alleged that the value of the television was over $400. Otherwise, however, the record does not show the value of the television.
"Under Proposition 47, the petitioner has the burden to show that he or she is eligible for resentencing. With respect to a theft-related offense, this includes showing that the value of the relevant property was $950 or less. [Citations.]" (People v. Sweeney (2016) 4 Cal.App.5th 295, 302.) In 2014, however, when defendant filed his petition, the law on this point was not yet clear. (See Ibid.) Under these circumstances, the appropriate appellate remedy is to remand with directions to deny the original petition, but to give defendant leave to file an amended petition. (Id. at p. 303.)
C. Unauthorized Acquisition of Access Card Information.
1. Additional factual and procedural background.
Counts 27, 31, and 33 each alleged unauthorized acquisition of access card information (Pen. Code, § 484e, subd. (d)) on June 12, 2009.
The information cited Penal Code section 484e, subdivision (e). However, there is and was no such subdivision. The parties agree that this was a typographical error for subdivision (d).
On June 12, 2009, during a police pursuit, defendant crashed his car. When the car was searched, it proved to contain "fraud-related materials" that had been stolen from their respective owners.
2. Analysis.
The trial court denied the petition with respect to these counts on the ground that they were "not qualifying felonies." Defendant contends that this was error.
While this appeal was pending, the California Supreme Court held that unauthorized acquisition of access card information "is one of the crimes eligible for reduced punishment" under Proposition 47. (People v. Romanowski (2017) ___ Cal.5th ___, ___ [2017 Cal. LEXIS 2326 at p. *2].) Under Romanowski, the trial court erred.
The People argue again that defendant failed to show that the value of the property taken was $950 or less. Defendant responds that, as a matter of law, the value of access card account information is de minimis. Romanowksi, however, rejected an identical argument. Rather, it held that such information has a black market value (People v. Romanowski, supra, 2017 Cal. LEXIS 2326 at pp. *21-*25), and that it is the petitioner's burden to prove that that value is $950 or less. (Id. at pp. *25-*26.)
Once again, we must remand with directions to give defendant leave to file an amended petition. (See part II.B, ante.)
III
DISPOSITION
The order appealed from is modified, so as to give defendant leave to file an amended petition with respect to counts 2 and 10 (burglary) and counts 27, 31, and 33 (acquisition of access card information). On remand, the trial court shall set a reasonable deadline for the filing of any such amended petition, and it shall have discretion to continue that deadline for good cause shown.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.
Attachment A
Count(s) Charge Penal Code Section Granted Denied 1, 8, 9, 24, 37, 38 Unlawfully obtaining personal identifying information 530.5, subd. (a) X 2, 10 Burglary 459 X 3, 25 Fraudulently issuing a check 476a X 4, 17 Check forgery 475, subd. (c) X 5, 18, 26, 40 Receiving stolen property 496, subd. (a) X 6, 22 Resisting a peace officer 148 X 7, 14, 42 Failing to appear 1320, subd. (b) X 11 Grand theft 487, subd. (a) X 12 Forgery 470, subd. (d) X 13 Passing a forged check 476 X 15 Unauthorized use of an access card 484e, subd. (c) X 16 Possession of a false identification card 470b X 19 Check forgery 475b X 20, 28 Forgery by counterfeit seal 472 X 21 Assault with a deadly weapon on a peace officer 245, subd. (c) X 23 Reckless evading 2800.2 X 27, 31, 33 Unauthorized acquisition of access card information 484e, subd. (d) X 29, 30, 32, 34, 35, 36, 39 Forgery by possession of a counterfeit item 475, subd. (a) X 41 Acquiring or retaining personal identifying information 530.5, subd. (c) X