Opinion
E066609
04-26-2017
THE PEOPLE, Plaintiff and Respondent, v. DESIREE DAWN VILLAREAL, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV1200195) OPINION APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Reversed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Theodore M. Cropley and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
In 2012, defendant and appellant Desiree Dawn Villareal pleaded guilty to two counts of second degree commercial burglary in violation of Penal Code section 459. Subsequently, defendant petitioned for relief pursuant to the Safe Neighborhoods and Schools Act, enacted by the voters as Proposition 47 in the November 2014 election.
Further undesignated statutory references are to the Penal Code. --------
On appeal, defendant argues that the trial court erred by considering the aggregate amount of loss, rather than the value of the property at issue in each separate count. The People concede the aggregation issue, but contend that the denial of defendant's petition was nevertheless proper, because the cashing of a forged check at a check cashing business does not fall within the meaning of "shoplifting" in section 459.5. We reverse the trial court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2012, defendant was charged with three counts of second degree commercial burglary (Pen. Code, § 459), three counts of forgery (Pen. Code, § 475, subd. (a), and one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). On February 2, 2012, defendant pleaded guilty to two counts of second degree commercial burglary (Pen. Code, § 459), and the remaining five counts were dismissed. One of the convictions related to an incident when defendant cashed a fraudulent check at a check cashing business on December 29, 2011; the other related to a similar incident on January 11, 2012, involving a fraudulent check for $800. The dismissed third burglary charge (and one of the dismissed forgery counts) related to a third similar incident, on January 15, 2012, in which defendant cashed another fraudulent check for $800.
On April 3, 2012, the trial court sentenced defendant to three years of formal probation, with 365 days to be served in county jail. Defendant violated the terms of her probation, however, which was revoked and terminated after she admitted the violation. On April 23, 2013, defendant was sentenced to two years in state prison, with credit for time served of 466 days.
On July 5, 2016, defendant filed a petition for resentencing pursuant to Proposition 47. The prosecution opposed the petition on the ground that the "[a]mount stolen from victim was $2,050.00." Without a hearing, the trial court denied the petition on July 11, 2016, stating: "Petition denied, not Prop 47 eligible, value over $950.00"
II. DISCUSSION
A. Background Regarding Proposition 47.
"Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors). Proposition 47 (1) added chapter 33 to the Government Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code, and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety Code sections 11350, 11357, and 11377." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Penal Code section 1170.18 provides, among other things, that "persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.'" (Rivera, supra, at p. 1093.)
Section 459.5, added by Proposition 47, redefines a limited subset of offenses that would formerly have been burglary to be the new offense of shoplifting, committed by "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)." (§ 459.5, subd. (a).) Shoplifting in violation of section 459.5 is punishable solely as a misdemeanor, except for certain categories of offenders. (Ibid.) Nothing in the record suggests that defendant falls within those categories of ineligible offenders, and the People have not argued otherwise.
B. The Trial Court Erred by Aggregating the Value of the Amounts Underlying Separate Convictions.
Defendant argues that the trial court erred by aggregating the value of the loss from her convictions (and perhaps also the dismissed counts) to find that she was not eligible for relief under Proposition 47. The People concede, and we agree, that defendant is correct.
Defendant pleaded guilty to two counts of burglary, one involving a loss of $450, the other $800. The only way the trial court could have concluded the value of the property taken by defendant exceeded $950 is by aggregating these amounts (and perhaps also the $800 involved in the separate, third burglary charge that was dismissed, as the prosecution did in its opposition to defendant's petition). This type of aggregation of the value of the property at issue in separate convictions is erroneous. (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1310; see also People v. Salmorin (2016) 1 Cal.App.5th 738, 746 [trial court may not aggregate values of forged checks to determine whether amount exceeded $950, even though charged under a single forgery count].)
C. Entering a Check Cashing Business to Cash a Forged Check Falls Within the Scope of Section 459.5.
The People contend that, even though the trial court erred with respect to determining the value of the property taken, its ruling was correct, because her offenses do not qualify as "shoplifting" within the meaning of section 459.5. They argue that entering a check cashing business to cash a forged check does not constitute "larceny" in the meaning of section 459.5. They also would limit the scope of section 459.5 to "the theft of openly displayed merchandise," not thefts "involving money." We reject both of these arguments.
In People v. Smith (2016) 1 Cal.App.5th 266, review granted September 14, 2016, S236112, this court held that "larceny as the term appears in section 459.5, subdivision (a) includes theft by false pretenses and does not require a trespassory taking." (Id. at p. 274.) In People v. Gonzales (2017) 2 Cal.5th 858, the California Supreme Court confirmed our view, holding that section 459.5 applies "to an entry to commit nonlarcenous theft," and specifically to an entry to cash a forged check. (Gonzales, supra, at p. 862.) It further noted that "section 459.5 provides a specific definition of the term "shoplifting' . . . which must be understood as it is defined, not in its colloquial sense." (Id. at p. 871.) It is therefore now settled law that entering a check cashing business to cash a forged check may fall within the scope of section 459.5.
D. The Matter Need Not Be Remanded for Further Factual Findings.
The People contend that, if we find defendant's convictions potentially fall within the scope of section 459.5 based on the underlying facts, as we have, the matter should nevertheless be remanded to the trial court for further factual findings. We disagree.
The People note that defendant's petition did not specify whether she was still serving her sentence; if she were, pursuant to section 1170.18, subdivision (b), the trial court would be required to determine whether "resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subds. (a), (b).) No such finding is required for petitioners seeking to redesignate a conviction for which the sentence has already been served. (Id., subd. (f).) The People suggest that the trial court needs to make a factual finding as to whether defendant has already served her sentence.
Not so. In April 2013, defendant was sentenced to two years in prison, with credit for time served of 466 days. There is no possibility that she is still serving a sentence on the convictions at issue. No further factual findings by the trial court are required.
III. DISPOSITION
We reverse the order denying defendant's petition. The matter is remanded to the trial court with directions to grant the petition, and designate the convictions at issue to be misdemeanors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.