Opinion
F074724
03-02-2018
THE PEOPLE, Plaintiff and Respondent, v. JACOB MICHAEL RENSHAW, Defendant and Appellant.
Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F09906259)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Jyoti Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
Jacob Michael Renshaw (defendant) appeals from the trial court's denial of his petition to designate his 2009 conviction of second degree burglary as a misdemeanor under Penal Code section 1170.18. On appeal, defendant contends the court erred when it denied his motion because his second degree burglary conviction constituted shoplifting under section 459.5. The People concede the error. We accept the People's concession as well taken and will reverse and remand for further proceedings.
All statutory references are to the Penal Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2009, defendant entered a Target store during regular business hours and attempted to purchase a computer with a "stolen I.D" and "forged check for $172.23."
On November 4, 2009, a complaint was filed charging defendant with second degree burglary (§§ 459 & 460, subd. (b); count 1), petty theft with priors (§ 666; count 2), identity theft (§ 530.5, subd. (a); count 3), and misdemeanor giving false information to a police officer (§ 148.9, subd. (a); count 4). The complaint further alleged defendant had suffered five prison priors (§ 667.5, subd. (b)).
On November 13, 2009, defendant pled no contest to all four counts and admitted the five prison priors.
After serving his sentence, defendant, on April 14, 2016, filed a petition for reduction of felony conviction pursuant to section 1170.18, subdivision (f), asking the court to designate his three felony convictions as misdemeanors.
On August 8, 2016, the trial court designated the offense of petty theft with priors (count 2) a violation of section 484, subdivision (a), a misdemeanor. However, the court found the offense of identity theft (count 3) ineligible for misdemeanor designation.
On November 14, 2016, following an evidentiary hearing, the trial court found the circumstances of the offense of second degree burglary (count 1) did not qualify the offense for misdemeanor designation.
DISCUSSION
The Statute
"In November 2014, California voters enacted Proposition 47, which 'created a new resentencing provision: section 1170.18.' " (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.) As enacted, section 1170.18 provides that "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, 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." (§ 1170.18, subd. (f).) "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)
"Proposition 47 added section 459.5, which classifies shoplifting as a misdemeanor 'where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).' (§ 459.5, subd. (a).) '[T]o qualify for resentencing under the new shoplifting statute, the trial court must determine whether defendant entered "a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours," and whether "the value of the property that [was] taken or intended to be taken" exceeded $950. (§ 459.5.)' " (People v. Rivas-Colon, supra, 241 Cal.App.4th at p. 448, italics added.)
Defendant's Conduct was Larcenous
Defendant contends that his conduct in entering a store with the intent to use a forged check to make a purchase was larcenous. Thus, according to defendant, the court erred when it denied his motion to reduce his second degree burglary conviction (count 1) to a misdemeanor. The People concede the error and recognize the issue is governed by People v. Gonzales (2017) 2 Cal.5th 858, 862, in which our Supreme Court held the term "larceny," as defined by section 459.5, is not limited to trespassory takings but includes nontrespassory takings such as theft by false pretenses. Defendant's second degree burglary, therefore, qualifies for reduction and the court erred when it denied his motion to designate that conviction as a misdemeanor.
DISPOSITION
The order appealed from is reversed. The matter is remanded to the trial court with directions to enter a new order designating the conviction at issue to be a misdemeanor pursuant to Penal Code section 1170.18, subdivisions (f) and (g).