Opinion
D068285
09-13-2017
THE PEOPLE, Plaintiff and Respondent, v. LEILA NICOLE PENMAN, Defendant and Appellant.
Jean Ballantine, 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, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, for Plaintiff and Respondent.
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE332010) APPEAL from a postjudgment order of the Superior Court of San Diego County, David L. Berry, Judge. Reversed. Jean Ballantine, 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, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, for Plaintiff and Respondent.
Leila Nicole Penman entered a department store and used a stolen debit or credit card to purchase a $50 gift card. She subsequently pleaded guilty to felony burglary under Penal Code section 459.
Further statutory references are to the Penal Code unless otherwise stated.
After the passage of Proposition 47, known as the Safe Neighborhoods and Schools Act (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74), Penman petitioned under new section 1170.18 to recall her sentence and to be resentenced for misdemeanor shoplifting under new section 459.5, subdivision (a). The trial court entered an order denying the petition, finding she had not established her burglary conviction qualified for reduction to shoplifting. We affirmed the order. (People v. Stewart (Mar. 14, 2016, D067967) [nonpub. opn.].)
At the time of her petition, Penman was still serving her sentence for the burglary conviction and her petition was filed under section 1170.18, subdivision (a), which provides: "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 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 in accordance with ... [s]ection 459.5."
Section 459.5, subdivision (a), provides: "Notwithstanding [s]ection 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. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of [s]ection 667 or for an offense requiring registration pursuant to subdivision (c) of [s]ection 290 may be punished pursuant to subdivision (h) of [s]ection 1170."
If Penman is no longer serving her sentence for the burglary conviction, her petition would be governed by section 1170.18, subdivision (f), which provides: "A person who has completed his or her sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
The California Supreme Court subsequently granted review in this matter and deferred further action pending its decision in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). After the Supreme Court issued the Gonzales decision, the Supreme Court transferred this matter back to us with directions to vacate and reconsider our decision in light of the Gonzales decision.
The Gonzales decision concluded the crime of shoplifting in section 459.5 does not apply in its colloquial sense. Rather, the crime applies to an (1) entry into a commercial establishment; (2) while the establishment is open during regular business hours; (3) with the intent to commit theft, whether by larceny, false pretenses, or embezzlement; (4) where the value of the property taken or intended to be taken does not exceed $950. (Gonzales, supra, 2 Cal.5th at pp. 868-870, 875.)
Here, the record shows Penman entered a commercial establishment while it was open during regular business hours and took (by false pretenses) property worth less than $950. The record does not show nor do the People argue Penman had any prior convictions disqualifying her from obtaining relief under section 1170.18. Accordingly, if she is still serving her sentence for the burglary conviction, she is entitled under section 1170.18, subdivision (a), to be resentenced to a misdemeanor. Alternatively, if she has completed her sentence for the burglary conviction, she is entitled under section 1170.18, subdivision (f), to have the burglary conviction designated misdemeanor shoplifting.
DISPOSITION
The order denying the petition is reversed and the matter is remanded with directions to vacate the order denying the petition and enter a new order granting the petition and either resentencing Penman to a misdemeanor under section 1170.18, subdivision (a), or designating the burglary conviction as misdemeanor shoplifting under section 1170.18, subdivision (f).
MCCONNELL, P. J. WE CONCUR: NARES, J. IRION, J.