Opinion
D072329
07-03-2018
THE PEOPLE, Plaintiff and respondent, v. RONALD LAMAR GALLOWAY, Defendant and appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for the 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN363528) APPEAL from a judgment of the Superior Court of San Diego County, Carlos O. Armour, Judge. Reversed and remanded with directions. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for the Plaintiff and Respondent.
Ronald Galloway pleaded guilty to one count of second degree burglary (Pen. Code, §§ 459, 460, subd. (b); count 1) on an information alleging he unlawfully entered a building with the intent to commit theft. He admitted that he had suffered a prior conviction that qualified as a strike (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Galloway to a six-year term consisting of the upper term of three years, doubled for the strike conviction. Galloway filed this appeal and obtained a certificate of probable cause.
Statutory references are to the Penal Code unless otherwise specified.
Galloway contends that under Proposition 47, "the Safe Neighborhoods and Schools Act," the People should have charged him in count 1 with misdemeanor shoplifting under section 459.5, and as a result his conviction and sentence are unlawful and must be corrected in this court. He contends his appointed counsel rendered ineffective assistance by failing to correct the conviction and sentence, which he maintains is unauthorized because there was no factual basis to support a charge of felony burglary. Galloway additionally contends the court prejudicially abused its discretion and denied him his right to effective assistance of counsel in connection with his motion to withdraw his plea and for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In an accompanying petition for writ of habeas corpus, In re Ronald Lamar Galloway, D073264, Galloway contends his counsel rendered prejudicially ineffective assistance in various related ways.
Galloway moved to expedite and consolidate his petition for writ of habeas corpus. We address the habeas petition by separate order and dismiss it as moot.
We conclude there is merit to Galloway's claim concerning the factual basis for his plea, and he did not receive effective assistance of counsel to which he was entitled under the Sixth Amendment. Our conclusion renders it unnecessary to address Galloway's other claims. We reverse and remand with directions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
We take some of the facts from the December 2016 preliminary hearing and some from the probation department's February 2017 stipulated sentence report. We recognize that a probation officer's report is not ordinarily part of the record of conviction (People v. Burnes (2015) 242 Cal.App.4th 1452, 1458) but because both parties rely on the facts as related in that report, we consider the factual background therein.
In August 2016, Galloway entered an office of Critical Performance Racing, a motorcycle racing shop, during business hours. Critical Performance Racing is in a complex with other businesses. A witness observed Galloway leaving the parking lot, after which the witness found Critical Performance Racing's cash box in a dumpster there. The witness saw the cash box contained blank checks from Critical Performance Racing and returned the box to the business's owner, who found about $100 was missing. Galloway also entered the office areas of two other businesses, rummaged through items, and took lights valued at approximately $200 from one location but left empty handed from another.
On August 31, 2016, the People charged Galloway with one count of burglary of Critical Performance Racing in a felony complaint, and alleged he had suffered numerous prior convictions including nine prior prison convictions and one strike prior conviction. On September 12, 2016, the People filed an amended felony complaint adding two additional counts of burglary for Galloway's entry into the other businesses.
Galloway's preliminary hearing took place in mid-December 2016. During that hearing an officer was asked whether one of the other businesses, Lentz Guitar, was open to the public or was only a warehouse. He responded that it was "more of a specialty shop. It is not a retail establishment. It's—you don't—there are no display items. It's a custom guitar shop. So I don't believe it's open to the public. I think you make an appointment or—but, no, it's not a retail establishment where you go select items from display then pay for them." The officer described the shop as having a warehouse area in the back and an office area in the front. The officer described Critical Performance Racing as a "motorcycle racing shop" in the same business complex. According to the officer, Critical Performance Racing was "very similar" in structure to Lentz Guitar, and he agreed it was "also not open to the public as a retail establishment." (Italics added.) Galloway's counsel argued that the evidence did not establish Galloway was the person who stole the items, and that there was no probable cause to believe he took the cash box or entered Critical Performance Racing's business. The court found reasonable cause to believe the People had proven violations of the three counts of second degree burglary alleged in the complaint.
In January 2017, Galloway pleaded guilty to second degree burglary of Critical Performance Racing and admitted he had suffered the prior strike conviction. In exchange, the two other burglary counts and prior conviction allegations were dismissed and the parties agreed to a six-year prison sentence. The plea agreement states the factual basis for Galloway's plea was he "entered a building unlawfully and with the intent to commit theft and I have a strike prior." Galloway's counsel concurred with Galloway's plea and the trial court found there was a factual basis for it.
In February 2017, the probation department submitted a stipulated sentence report stating that video had captured the then-unknown male (later identified as Galloway) entering the office of Critical Performance Racing "during business hours." The report attached a letter from Critical Performance Racing's owner, Shane Larson, in which he "describe[d] the economic loss related to the loss of property and wages my business, Critical Performance Racing[,] suffered due directly to the crime committed by Ronald Galloway on 8/19/16" and explained that the cash box taken by Galloway contained not only cash but keys to several of his customer's bikes. Larson explained he would have sustained a much larger financial loss had the keys not been returned.
On March 1, 2017, the day set for Galloway's sentencing the court held a Marsden hearing after Galloway advised the court he wished to withdraw his plea and desired new counsel. Galloway complained that his counsel had not obtained necessary evidence until after his preliminary hearing, and also that his counsel was incorrect in concluding Galloway was facing a maximum sentence of 15 to 17 years. Counsel explained that Galloway believed his maximum sentence was one year or less, but he had advised Galloway he was "misreading the statute" and went over the consequences of his prior convictions even if the crime was charged as a misdemeanor. Following the hearing the court declared it would not decide the Marsden request, but gave Galloway an opportunity to talk with his counsel, and told his counsel to establish whether the public defender had a conflict on the case and in representing Galloway in a motion to withdraw his plea. Counsel thereafter informed the court that he had spoken with his supervisor, and they felt there was no conflict of interest for him to remain on Galloway's case and represent him on his motion.
The court resumed Galloway's Marsden hearing in mid-April 2017. Galloway raised the same issues concerning the evidence, and claimed an officer had committed perjury at his preliminary hearing. Galloway's counsel explained the circumstances concerning the evidence and advised the court that Galloway felt they were operating under a conflict. Galloway stated his preliminary hearing should have been postponed until they received the missing evidence. Ultimately, counsel informed the court that case law did not support a motion to withdraw Galloway's plea and he had advised Galloway to take the six-year offer based on the evidence. The court found there had not been a complete breakdown of his attorney-client communication with Galloway, and ruled there was no legal reason to remove the public defender as his attorney of record. It then sentenced Galloway consistent with his plea.
Galloway filed a notice of appeal challenging the validity of his plea and obtained a certificate of probable cause.
DISCUSSION
I. Galloway's Appeal Is Cognizable Following His Plea
At the outset, we point out that Galloway's appeal is cognizable despite his guilty plea to second degree burglary. Though Galloway's appeal primarily challenges the People's ability to charge him with second degree burglary of Critical Performance Racing in light of Proposition 47, he also maintains there was no factual basis to support a charge of felony burglary. We may resolve this claim as one challenging the factual basis for his plea. (People v. Palmer (2013) 58 Cal.4th 110 [claim that a trial court failed to establish a factual basis for a plea under section 1192.5 is cognizable on appeal even when defense counsel stipulates to a factual basis].) Additionally, we may address Galloway's claim of ineffective assistance of counsel in connection with his guilty plea. (People v. Ribero (1971) 4 Cal.3d 55, 63, superseded by statute on other grounds as stated in In re Chavez (2003) 30 Cal.4th 643, 656; People v. Kunes (2014) 231 Cal.App.4th 1438, 1442-1443.)
A guilty plea operates as a waiver of formal defects in the accusatory pleading that could be reached by demurrer, and on the merits it is deemed to constitute a judicial admission of every element of the offense charged. (People v. Chadd (1981) 28 Cal.3d 739, 748.) It severely restricts a defendant's right to appeal from the ensuing judgment in that by admitting guilt, a defendant waives an appellate challenge to the sufficiency of evidence of guilt. (Ibid.) The People do not argue that Galloway's challenge to the charges filed against him is not cognizable from a guilty plea. Were we to consider the issue, we would conclude on the same analysis set forth below that Galloway's actions constituted shoplifting or attempted shoplifting, mandating that he be charged with misdemeanor shoplifting or attempted shoplifting, under section 459.5, subdivision (b), not burglary. Nor do the People argue that Galloway would not qualify for Proposition 47 relief due to the nature of his prior convictions. (See People v Hernandez (2017) 10 Cal.App.5th 192, 196 [describing disqualifying prior convictions as "super strike" offenses].)
II. Factual Basis for Galloway's Plea
A. Standard of Review
Galloway contends that because there are no disputed factual issues, the issue is purely legal and subject to independent review. The People do not address the relevant standard of review. Summarizing the December 2016 preliminary hearing testimony, including the officer's testimony that Critical Performance Racing was "not open to the public as a retail establishment," the People point out the trial court found probable cause to believe Galloway was guilty of second degree burglary charges and then deemed the complaint the information. They argue the People were not precluded from charging Galloway with second degree burglary because the underlying conduct did not satisfy the shoplifting statute; according to the People, it can be reasonably inferred the location was not one open to the public or to customers, and thus under case law at the time of Galloway's preliminary hearing and guilty plea—specifically, People v. Colbert (2016) 5 Cal.App.5th 385, review granted Feb. 15, 2017, S238954—Galloway's conduct did not satisfy the requirements for shoplifting. They argue the count as to Critical Performance Racing was a valid basis for Galloway's guilty plea.
Here, we are not presented with lower court factual findings as to the nature of the victim's business, which we would review for substantial evidence. (People v. Hallam (2016) 3 Cal.App.5th 905, 911.) Nor did the court express any legal conclusion as to whether Galloway's offense involved a "commercial establishment" within the meaning of section 459.5, the review of which would be a question of law. (Id. at p. 912.) Nevertheless, we agree with Galloway that the question at hand is one of law. There is no dispute that Galloway entered Critical Performance Racing during regular business hours, as described in the probation report. And, accepting the undisputed facts presented both in the probation report and during the preliminary hearing, it is a question of law whether Critical Performance Racing meets the criteria for a "commercial establishment." (See People v. Wismer (2017) 10 Cal.App.5th 1328, 1335, fn. 3; Dagher v. Ford Motor Company (2015) 238 Cal.App.4th 905, 916 [whether statutory criteria have been met on undisputed facts is a question of law, subject to de novo review on appeal].) B. Proposition 47 and the State of the Law During the Proceedings
Proposition 47, enacted by the electorate in November 2014, amended existing statutes to reduce penalties for certain theft and drug offenses, and added several new provisions. (People v. Gonzales (2017) 2 Cal.5th 858, 863; People v. Romanowski (2017) 2 Cal.5th 903, 909.) One of the new provisions was section 459.5, which created the misdemeanor crime of shoplifting for conduct that would have previously qualified as a burglary. (People v. Gonzales, at p. 863; In re J.L. (2015) 242 Cal.App.4th 1108, 1112.) 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." Thus, " '[t]he crime of shoplifting has three elements: (1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less.' " (People v. Hallam, supra, 3 Cal.App.5th at p. 911.)
The statute contains "an explicit limitation on charging" (People v. Gonzales, supra, 2 Cal.5th at p. 863) providing: "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." (§ 459.5, subd. (b).) Our state's high court has emphasized: "A defendant must be charged only with shoplifting when the statute applies. It expressly prohibits alternate charging and ensures only misdemeanor treatment for the underlying described conduct. The statute's use of the phrase 'the same property' confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge." (Gonzales, at p. 876.)
Proposition 47 also created a resentencing provision permitting specified defendants to petition for a recall of that sentence and request resentencing (§ 1170.18, subd. (a)). Though Galloway is currently serving a sentence, the petition process for seeking resentencing provided in section 1170.18 specifically applies only to "[a] person who, on November 5, 2014, was serving a sentence for a conviction . . . 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 . . . ." (§ 1170.18, subd. (a), italics added; see People v. Gonzales, supra, 2 Cal.5th at p. 862.) Galloway was not serving the sentence on November 5, 2014.
In December 2015, before Galloway committed his crime, a division of the Second District Court of Appeal in In re J.L., supra, 242 Cal.App.4th 1108 held that a high school was not a commercial establishment within the meaning of section 459.5 such that the defendant's crime of stealing a phone from a school locker was eligible for reclassification under Proposition 47. (Id. at p. 1115.) Applying principles of statutory interpretation to the initiative and giving commonsense meaning to the term "commercial establishment," the Court of Appeal rejected an argument that a public high school shared "similar traits" with a commercial establishment. (Id. at pp. 1113-1114.) It stated: "[A] commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of good or services. . . . A public high school is not an establishment primarily engaged in the sale of goods and services; rather, it is an establishment dedicated to the education of students." (Id. at p. 1114.) Pointing out that shoplifting was commonly understood as theft of merchandise from a store or business that sells goods to the public, the appellate court stated it did not "believe the voters enacting Proposition 47 understood a public high school to be a commercial establishment or a theft from a school locker to be 'shoplifting.' " (Id. at p. 1115.)
On August 12, 2016, shortly before the People filed the felony complaint against Galloway, a panel of this court addressed whether a bank constituted a commercial establishment. (People v. Hudson (2016) 2 Cal.App.5th 575, review granted Oct. 26, 2016, S237340.) There, the defendant, who had pleaded guilty to second degree burglary based on his act of entering a bank and falsely impersonating another person, unsuccessfully sought resentencing after passage of Proposition 47. (Id. at pp. 578-579, 580.) On appeal, in response to the defendant's argument that section 459.5 must be broadly construed, the People contended that a bank was not a "commercial establishment where items are on display for sale." (Id. at p. 581.) Interpreting section 459.5 as a matter of law and observing it did not define shoplifting according to its common meaning, this court concluded a bank qualified as a commercial establishment, reasoning in part: "Because 'commercial' involves being engaged in commerce, including financial transactions, we conclude that the term 'commercial establishment' includes a bank." (Id. at p. 582.) We acknowledged that "a common understanding of the word 'commercial' encompasses the buying and selling of merchandise in a retail establishment," but rejected use of such a standard, as "nothing in the text of the Act supports this narrow interpretation . . . ." (Ibid.) Other authorities decided at about the same time were in accord. (See People v. Smith (2016) 1 Cal.App.5th 266, 272-273, review granted Sept. 14, 2016, review dismissed and remanded June 28, 2017, S236112 [decided July 8, 2016: check-cashing business was commercial establishment because it "provides financial services in exchange for fees"; court rejected a narrower view to the buying and selling of goods, as the initiative directed Proposition 47 was to be construed broadly]; People v. Abarca (2016) 2 Cal.App.5th 475, 480-483, review granted Oct. 19, 2016, review dismissed and remanded June 28, 2017, S237106 [decided August 12, 2016: because establishment means an " 'institution or place of business' " and commerce means " '[t]he exchange of goods and services,' " a commercial establishment is "a place of business established for the purpose of exchanging goods or services" and a bank satisfies this definition because it "provides financial services in exchange for fees"]; People v. Stylz (2016) 2 Cal.App.5th 530, 533 [decided August 15, 2016: a commercial establishment is one that is "primarily engaged in commerce, that is, the buying and selling of goods or services"; a specific locked storage unit—as distinguished from the storage facility itself—was not a commercial establishment because it was not rented to engage in commerce, nor was there evidence it was open to the public during regular business hours].)
After the People filed the felony complaint and amended complaint but before Galloway's guilty plea, other courts adopted the holdings of these cases, declining to narrowly define the meaning of shoplifting by using its common understanding. In People v. Holm (2016) 3 Cal.App.5th 141, the court rejected an argument that a commercial establishment meant a store or shop open to the public with regular business hours. (Id. at p. 146.) Holm held that a private golf and country club was a commercial establishment within the meaning of section 459.5: "The fact most of [the club's goods and services] are sold to a subset of the general public—namely individual club members and their guests—does not change the commercial nature of the establishment. Furthermore, the club sells some of its goods and services, namely its banquet space and services, to the general public." (Id. at pp. 147-148.)
In People v. Hallam, supra, 3 Cal.App.5th 905, the Court of Appeal considered whether a theft from an employee restroom within a computer store during business hours was a shoplifting within the meaning of section 459.5. (Id. at p. 908.) The defendant had entered the store, was permitted to use the employee restroom, left and then reentered through the store's back door before stealing an item from the same restroom. (Ibid.) The trial court had concluded that the store's employee restroom "was not part of a 'commercial establishment' " but the appellate court, declining to rewrite the statute, rejected that conclusion: "Turning to the words of the statute here, we find no indication that shoplifting can occur only in specific areas of a commercial establishment. Nor does there appear any requirement that the business's commercial activity must be taking place in the area from which the theft occurs in order to qualify the offense as shoplifting. The trial court thus added an element to the offense that is absent from the plain language of the statute itself when it determined that appellant's theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandise is sold." (Id. at p. 912.) Finding guidance in People v. Garcia (2016) 62 Cal.4th 1116, in which the high court reversed a conviction for burglary by a defendant's entry into a store's bathroom apart from the store itself, the Hallam court stated there was no evidence the computer store's restroom was kept locked or provided any more than " 'a limited transitory source of privacy' " and, as demonstrated by the defendant's ability to easily use the restroom before returning to commit his theft, there were no obstacles to gaining entry to the employee area. (Hallam, 3 Cal.App.5th at pp. 913-914.) Thus, Hallam held the area "lacked any objective indications of a heightened expectation of privacy and security beyond what the store itself provided such that the offense should be deemed burglary rather than shoplifting." (Id. at p. 914.)
In October 2016, the California Supreme Court granted review in People v. Hudson, supra, 2 Cal.App.5th 575, but on an issue unrelated to this court's finding of a commercial establishment. The following month, the Sixth District Court of Appeal decided People v. Colbert, supra, 5 Cal.App.5th 385 (rev.gr.), in a divided opinion. Colbert considered whether the defendants' entry into separate office areas of convenience stores—which the evidence established was off limits to the general public—were "to be considered an undivided part of that commercial establishment under section 459.5, or are those areas to be treated separately?" (Id. at p. 390.) Though it was undisputed that the stores were commercial establishments, the Colbert majority held the conduct was not shoplifting: "The office areas from which Colbert and his accomplice stole money were not areas in which goods were bought and sold. There was no merchandise offered for sale in those offices, or at least there is no evidence in the record suggesting there was. Colbert was not interested in stealing the goods on offer in these establishments, otherwise he and his accomplice would have remained in the area where those goods were displayed rather than intruding into the private areas where the employees were likely to keep their personal belongings, such as purses and wallets, and where the business was likely to store larger amounts of cash." (Id. at p. 391.) The dissenting justice disagreed, concluding in light of People v. Hallam, supra, 3 Cal.App.5th 905 and under section 459.5's plain language, a defendant commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent; he did not believe a defendant could " 'exit' an establishment by entering an office inside it." (Colbert, at p. 392.)
In Hudson, supra, 2 Cal.App.5th 575, the California Supreme Court deferred action pending consideration and disposition of the issue in People v. Franco (2016) 245 Cal.App.4th 679, review granted June 15, 2016, S233973: "For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on?" (<http://www.courts.ca.gov/supremecourt.htm>.)
Galloway's preliminary hearing took place approximately one month after the Sixth District decided People v. Colbert, supra, 5 Cal.App.5th 385 (rev.gr.). Shortly after his preliminary hearing, the court decided People v. Franske (2016) 6 Cal.App.5th 1057, review granted Feb. 15, 2017, S239732, which held a defendant's theft of items from employee's purse in an office area of a motor home seller fit the unambiguous statutory definition of shoplifting in section 459.5. (Id. at pp. 1060-1062.)
Galloway pleaded guilty in January 2017. Thereafter, the California Supreme Court granted review in People v Colbert to decide the following issue: "Did defendant's entry into separate office areas of a commercial establishment that were off-limits to the general public constitute an 'exit' from the 'commercial' part of the establishment that precluded reducing his conviction for second degree burglary to misdemeanor shoplifting under Penal Code section 459.5?" (Italics added, <http://www.courts.ca.gov/supremecourt.htm>.)
On March 23, 2017, after Galloway's first Marsden hearing but before the resumed Marsden hearing and his sentencing, the California Supreme Court decided People v. Gonzales, supra, 2 Cal.5th 858. In Gonzales, the defendant stole his grandmother's checkbook, entered a bank on two separate occasions, and each time cashed a check for $125 made out to him. (Id. at p. 862.) He pleaded guilty to felony second degree burglary, and after the passage of Proposition 47, unsuccessfully petitioned for recall and resentencing under section 1170.18. (Ibid.) The matter went to the California Supreme Court, which held that the electorate intended section 459.5 to apply to an entry to commit a nonlarcenous theft, and that the defendant's act of entering the bank to cash a stolen check for less than $950 constituted shoplifting, permitting him to petition for resentencing. (Ibid.)
In reaching its decision, the Gonzales court addressed and rejected various arguments by the Attorney General urging application of a common or colloquial understanding of the term shoplifting. The Attorney General argued, for example, that "use of the term 'larceny' in section 459.5, coupled with labeling the offense 'shoplifting,' exhibited an intent by the electorate to limit that offense to the 'common understanding of shoplifting,' which she characterizes as taking goods from a store." (People v. Gonzales, supra, 2 Cal.5th at pp. 868-869.) The Attorney General further argued the electorate intended to limit shoplifting to the theft of "tangible merchandise" and the reference to larceny reflected intent to "limit the offense to takings colloquially understood as 'shoplifting.' " (Id. at pp. 870-871.) The high court rejected the first argument "in light of the history of the burglary and theft statutes and their settled judicial construction," pointing out the ballot pamphlet ensured that while formerly shoplifting of property worth $950 or less could be charged as burglary (a wobbler), under the new law, such a crime " 'would always be a misdemeanor and could not be charged as burglary.' " (Id. at p. 869.) The court found no indication the electorate viewed larceny differently from other forms of theft. (Id. at p. 870.) As for the second argument, the court explained: "[S]ection 459.5 provides a specific definition of the term 'shoplifting.' In doing so, it creates a term of art, which must be understood as it is defined, not in its colloquial sense. Indeed, by defining shoplifting as an entry into a business with an intent to steal, rather than as the taking itself, section 459.5 already deviates from the colloquial understanding of that term." (Id. at pp. 870-871.)
Gonzales also addressed the Attorney General's attempt to characterize as absurd the extension of the shoplifting statute to "any form of theft other than larceny of openly displayed merchandise." (People v. Gonzales, supra, 2 Cal.5th at p. 873.) The Attorney General argued that under such an interpretation, section 459.5 "would require a person to be prosecuted for shoplifting even if he enters a commercial establishment to commit a theft from an area of the store closed to the public, 'like a back office or a private locker room . . . .' " (Gonzales, at p. 873, italics added.) The court stated the argument was "little more than a restatement of the rejected claim that the electorate intended to use 'shoplifting' in the colloquial sense." (Id. at pp. 873-874.) It continued: "Further, if the electorate had intended to limit the shoplifting statute to an entry with intent to steal retail merchandise, it could have done so by using language similar to that in section 490.5 [specifying punishment for petty theft and defining " 'merchandise' as 'any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant']." (Id. at p. 874.) The court pointed out "[n]o similar language is found in section 459.5." (Ibid.) C. Analysis
Galloway at his plea hearing admitted he understood the nature of the charges against him as well as possible defenses, and the consequences of his plea. He waived his rights and stated he understood he would serve a prison commitment and be sentenced under the "Three Strikes" law. The following colloquy then occurred:
"The Court: As to count 1, that on or about August 19, 2016, you did personally enter a building, Critical Performance Racing, with intent to commit a theft in violation of Penal Code section 459. How do you plead to that charge?
"[Galloway]: Guilty.
[¶] . . . [¶]
"The Court: And are you pleading guilty and admitting to the strike because you entered a building with the intent to commit theft and you have a strike prior?
"[Galloway]: Yes, sir.
"The Court: Thank you. [¶] People satisfied?
"Mr. Coleman: Yes, your honor. Thank you.
"The Court: And Mr. Stapleton, do you concur with your client's waiver of rights and entry of plea?
"[Defense counsel]: I do, your honor.
"The Court: Thank you. Court finds the defendant has made a voluntary, knowing and intelligent waiver of his constitutional rights. There is a factual basis for the plea. [¶] The court will accept the plea and find the defendant guilty."
Under section 1192.5, when a trial court accepts a plea of guilty or no contest, it shall "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." (§ 1192.5.) In doing so, "the trial court must garner information regarding the factual basis either from the defendant or defense counsel." (People v. Holmes (2004) 32 Cal.4th 432, 442.) "If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement." (Ibid.) The trial court may also "satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record" provided that "the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (People v. Palmer, supra, 58 Cal.4th at p. 118.)
Neither Galloway or his counsel stipulated to a factual basis based on police reports, the preliminary hearing transcript, or other documentation of Galloway's crimes. Galloway did not state he had discussed his charges and defenses with his counsel or whether he was satisfied with counsel's advice. Thus, his counsel's bare stipulation does not satisfy the court's obligation to make inquiry and satisfy itself there was a factual basis for Galloway's plea. (Compare People v. Palmer, supra, 58 Cal.App.4th at pp. 118-119.) --------
"[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the . . . plea." (People v. Holmes, supra, 32 Cal.4th at p. 443; see also In re M.V. (2014) 225 Cal.App.4th 1495, 1526-1527.)
We are compelled to conclude the trial court abused its discretion in performing its obligation to satisfy there was a factual basis for Galloway's guilty plea to burglary. The preliminary hearing testimony was undisputed that Critical Performance Racing is a motorcycle shop serving customers. It demonstrated Galloway entered Critical Performance Racing's open front office during business hours. There is no evidence that the office was locked, displayed signs prohibiting entry, or that the owner took steps to prevent public access. There was no testimony that the front office was "off-limits" (People v. Colbert, supra, 5 Cal.App.5th 385 at p. 390, rev.gr.) to the general public, and thus, contrary to the People's argument Galloway's crimes did not fall within Colbert's rationale so as to permit his prosecution for burglary. There is nothing in the record otherwise permitting a conclusion that the front office was not part of Critical Performance Racing's commercial establishment. The state of the law at the time Galloway committed his offense and entered his plea (In re J.L., supra, 242 Cal.App.4th at p. 1114; People v. Hudson, supra, 2 Cal.App.5th 575, rev.gr.; People v. Colbert, supra, 5 Cal.App.5th 385, rev.gr.) as well as a straightforward interpretation of section 459.5, demonstrates that Galloway's conduct was legally punishable only as misdemeanor shoplifting. The law did not require Critical Performance Racing to be a retail seller of goods on display (In re J.L., supra, 242 Cal.App.4th at p. 1114; People v. Hudson, 2 Cal.App.5th 575, rev.gr.; People v. Abarca, supra, 2 Cal.App.5th at pp. 480-483, rev.gr.; People v. Stylz, supra, 2 Cal.App.5th at p. 533, rev.gr.; People v. Hallam, supra, 3 Cal.App.5th at pp. 912-914; People v. Franske, supra, 6 Cal.App.5th at pp. 1060-1061), nor did it matter that it provided services to only select customers. (People v. Holm, supra, 3 Cal.App.5th at pp. 147-148.) Because the circumstances show Critical Performance Racing was an establishment in the business of providing services to customers and Galloway stole between $80 and $100 from its cash box during business hours, the law mandated that his crime be misdemeanor shoplifting. (§ 459.5.) In short, the record at the time of Galloway's plea did not establish a prima facie case of second degree burglary, and it was an abuse of the court's discretion to find a factual basis for Galloway's plea to that offense.
III. Galloway's Claim of Ineffective Assistance of Counsel Has Merit
Galloway additionally contends he received prejudicially ineffective assistance from his counsel in connection with his conviction and sentence. We agree his counsel did not provide effective assistance at the time Galloway entered his plea.
" 'Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] "It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." ' " (People v. Perez (2015) 233 Cal.App.4th 736, 740, quoting In re Resendiz (2001) 25 Cal.4th 230, 249, abrogated in part on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370; see People v. Grimes (2016) 1 Cal.5th 698, 734-735; In re Alvernaz (1992) 2 Cal.4th 924, 934.) To challenge a guilty plea on the ground of ineffective assistance of counsel, "a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz, at p. 934; see People v. Breslin (2012) 205 Cal.App.4th 1409, 1418-1419 [two-part Strickland v. Washington (1984) 466 U.S. 668 test applies to challenges to guilty pleas based on ineffective assistance of counsel].)
" 'Where, as here, a defendant is represented by counsel during the plea process and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "was within the range of competence demanded of attorneys in criminal cases." ' [Citation.] 'The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.' " (People v. Breslin, supra, 205 Cal.App.4th at p. 1419; see also People v. Patterson (2017) 2 Cal.5th 885, 901 [to establish prejudice from counsel's alleged errors, defendant must show " 'that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty' "].)
On this record, Galloway has met his burden of establishing his counsel failed to act competently in advising him about the People's ability to charge him with burglary as well as his plea. At no time during the discussions concerning Galloway's guilty plea, the Marsden hearings, or Galloway's sentencing did counsel raise the possibility that under Proposition 47, Galloway's crimes amounted to misdemeanor shoplifting rather than second degree burglary. At no point did counsel advocate that Galloway's crimes be reduced to misdemeanors; rather, counsel informed the trial court that he had advised Galloway that his crimes carried a maximum sentence of 15 to 17 years in prison. Unlike Colbert, Galloway entered the office of Critical Performance Racing, which was in the front of the business and accessible during business hours, not "off limits" to the public. No facts support a conclusion he accessed a private back room or other restricted area.
Regardless of whether the state of the law was arguably unsettled at the time of Galloway's preliminary hearing and guilty plea, by the time the court conducted the resumed Marsden hearing and sentencing, the weight of authority held shoplifting was not defined by its colloquial or commonsense meaning. Importantly, this authority included the California Supreme Court's conclusion that there was no indication the electorate intended to limit shoplifting to "an entry with intent to steal retail merchandise" and express rejection of the notion that the crime could not apply to one who stole from an area of a store closed to the public " 'like a back office or a private locker room . . . .' " (People. Gonzales, supra, 2 Cal.5th at p. 873.) Though Galloway's crimes were legally punishable only as misdemeanor shoplifting under these authorities, counsel made no mention of Gonzales or Proposition 47, for that matter, at the time of Galloway's resumed Marsden motion and second request to withdraw his guilty plea. It appears counsel was " 'inexplicably unaware' " of that authority. (Accord, In re Williams (1969) 1 Cal.3d 168, 173.) Rather, counsel permitted Galloway to "plead guilty to a crime which he did not commit." (Id. at p. 171.)
In sum, the record demonstrates that Galloway's counsel " 'failed to investigate either the facts or law in the manner required of a reasonably competent diligent attorney.' " (People v. Breslin, supra, 205 Cal.App.4th at p. 1419.) And, Galloway's other offenses—against two other businesses in the same complex and involving either nothing taken or items valued under $950—likewise constituted either misdemeanor shoplifting or attempted shoplifting. We see no strategic, tactical or other satisfactory explanation for counsel's failure to advocate that Galloway either not enter into the plea, or withdraw his plea, under these circumstances. (In re Williams, supra, 1 Cal.3d at p. 177.) Hence, Galloway's claim is cognizable on direct appeal. (People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1009.) Had counsel been aware of Gonzales and the other existing authorities, it is reasonably probable Galloway would have declined to plead guilty or obtained a different result than his stipulated six-year sentence.
DISPOSITION
We reverse and remand this case to the trial court with directions to grant Galloway's motion to withdraw his plea and proceed consistent with this opinion.
O'ROURKE, J. I CONCUR: McCONNELL, P. J. I CONCUR IN THE RESULT: DATO, J.