Opinion
C079544
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE JESUS MOSQUEDA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF13-2422)
Defendant Jose Jesus Mosqueda appeals from the trial court's order denying his petition for resentencing pursuant to Penal Code section 1170.18. He contends the trial court erred in finding his second degree commercial burglary (§ 459) conviction was ineligible for resentencing because he intended to commit identity theft as part of the crime. Agreeing with defendant, we shall reverse the trial court's order and remand for additional proceedings.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On August 16, 2013, at about 1:08 p.m., defendant entered the business Discoteca Vallarta and cashed a fraudulent check for $800. The check was stolen from Industrial Finishes Systems, Inc.
Defendant was charged with second degree burglary (§ 459) and receiving stolen property (§ 496, subd. (a)). He pleaded no contest to the burglary charge and was placed on three years of formal probation. Among the probation conditions was an order to pay $810 in victim restitution.
On March 25, 2015, defense counsel informed the trial court that defendant had filed a petition for resentencing in this case. Counsel stated that defendant was eligible for resentencing "because it's use of a fraudulent check at a check cashing place."
Defendant was represented by counsel in this and other criminal cases, as well as for allegations that he violated his probation in this case. After the denial of the section 1170.18 petition in this case, the cases were resolved and defendant was sentenced to a two-year term in this case as part of a total county jail term of seven years four months.
Defendant filed a section 1170.18 petition on April 10, 2015, seeking resentencing on the burglary conviction. The People filed an opposition, stating the offense did not qualify because "[t]he burglary is based on defendant's intent to commit a felony, specifically identity theft, in that he entered Discoteca Vallarta with the intent to cash a fraudulent/stolen check belonging to Industrial Finishes Systems."
At the hearing on defendant's motion, neither party disputed the prosecutor's statement that the fraudulent check was for $800. The court denied the petition, finding the conviction did not qualify for resentencing because it "is something other than shoplifting and it does involve identity theft . . . ."
DISCUSSION
Defendant contends his burglary conviction qualifies for resentencing. We agree.
The question of when a commercial burglary conviction qualifies for section 1170.18 resentencing is currently before the California Supreme Court. (See, e.g., People v. Bias (2016) 245 Cal.App.4th 302, review granted May 11, 2016, S233634; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673; People v. Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171 [argued Jan. 4, 2017].)
The passage of Proposition 47 created section 1170.18, which provides for any defendant "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 [Proposition 47] had [it] been in effect at the time of the offense [to] petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing . . . " under the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.)
As pertinent to this case, Proposition 47 added section 459.5, which establishes the offense of shoplifting, a misdemeanor. Section 459.5 states, in pertinent part: "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)." (§ 459.5, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) As relevant here, "burglary" is defined as: entry into a "building . . . with intent to commit grand or petit larceny or any felony . . . ." (§ 459.)
Defendant points out that he entered the store with an intent to commit theft by passing the fraudulent check. The Penal Code treats the terms "larceny" and "theft" as synonyms. "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word "theft" were substituted therefor." (§ 490a.) Noting that the larceny element of burglary can be satisfied by entering the home with an intent to pass a bad check (see People v. Nguyen (1995) 40 Cal.App.4th 28, 30-31 [defendant entered home with intent to steal property by purchasing items with a bad check]), defendant concludes that the criminal act underlying his burglary conviction satisfies the elements of section 459.5, rendering him eligible for resentencing.
The Attorney General asserts defendant failed to carry his burden of establishing eligibility because his petition contains no recitation of facts or supporting evidence showing that the value of the items in question was $950 or less. In addition, the Attorney General claims that defendant entered the business with an intent to commit identity theft, a crime not covered by section 459.5. The Attorney General also argues that the crime of shoplifting in section 459.5 should be interpreted to mean stealing merchandise from a commercial establishment, and that section 459 convictions are not subject to resentencing because that provision is not mentioned in section 1170.18.
In interpreting a voter initiative, "we apply the same principles that govern statutory construction" (People v. Rizo (2000) 22 Cal.4th 681, 685), and "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure" (In re Littlefield (1993) 5 Cal.4th 122, 130). " 'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.] At the same time, 'we do not consider . . . statutory language in isolation.' [Citation.] Instead, we 'examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.] Moreover, we ' "read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.' " ' " (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
In People v. Garrett (2016) 248 Cal.App.4th 82 (Garrett), the Court of Appeal, Sixth Appellate District, addressed essentially the same situation as presented here. The defendant in Garrett was convicted of commercial burglary for entering a convenience store and trying to purchase gift cards worth $50 with a stolen credit card. (Id. at p. 84; see fn. 4, ante.) Defendant petitioned for section 1170.18 resentencing, which the trial court denied because the intent to use the stolen credit card to make the purchase supported an intent to commit identity theft, rather than petty theft. (Garrett, at p. 86; see fn. 4, ante.)
The California Supreme Court granted review in Garrett on August 24, 2016, S236012, pending review of a related issue. We cite Garrett as persuasive authority only, pursuant to California Rules of Court, rule 8.1115(e)(1).)
The Court of Appeal rejected the trial court's reliance on intent to commit identity theft. "Section 459.5 mandates that notwithstanding Penal Code section 459, a person who enters a store 'with intent to commit larceny' shall be punished as a misdemeanant if the value of the property to be taken is not more than $950. (459.5, subd. (a).) Subdivision (b) further provides that any act defined as shoplifting 'shall be charged as shoplifting' and may not be charged as burglary or theft of the same property. (§ 459.5, subd. (b).) Thus, even assuming [the] defendant intended to commit felony identity theft, he could not have been charged with burglary under Penal Code section 459 if the same act—entering a store with the intent to purchase merchandise with a stolen credit card—also constituted shoplifting under Section 459.5." (Garrett, supra, 248 Cal.App.4th at p. 88; see fn. 4, ante.)
The Garrett court noted that the defendant had intended to commit theft by false pretenses, as defined in section 484. (Garrett, supra, 248 Cal.App.4th at p. 89; see fn. 4, ante.) Applying section 490a, the Court of Appeal held that the crime of "shoplifting requires an intent to commit theft, which is further defined by Penal Code section 484. This includes theft by false pretenses, encompassing [the] defendant's conduct here." (Garrett, at pp. 89-90; see fn. 4, ante.) The defendant's intended petty theft therefore qualified as shoplifting, rendering the crime eligible for resentencing. (Id. at p. 90; see fn. 4, ante.)
Section 484 provides, in relevant part: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." (§ 484, subd. (a).) --------
We find this reasoning persuasive notwithstanding the Attorney General's contrary contention regarding identity theft. As in Garrett, defendant intended to, and did, commit a petty theft by false pretenses when he cashed the stolen check at a business during its regular hours of operation. We agree with Garrett that under section 490a, the term "larceny" in section 459.5 means any form of theft, including theft by false pretenses. While defendant may have entertained multiple intents, he had a single criminal objective, stealing $800 by cashing the stolen check at the business he victimized. It is the type of criminal activity to which section 459.5, subdivision (b)'s preemption extends, and therefore can be prosecuted only as a shoplifting crime after the passage of Proposition 47. Since defendant could only be liable under section 459.5 were he to be prosecuted today, his second degree burglary conviction is eligible for section 1170.18 resentencing notwithstanding his intent to commit identity theft.
As petitioner, defendant had the burden of establishing that the value of the item stolen met the $950 or less threshold to qualify under the shoplifting statute. (Evid. Code, § 500; People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449; People v. Sherow (2015) 239 Cal.App.4th 875, 878.) As part of this burden, a defendant filing a section 1170.18 petition must "must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. [Citations.] The defendant must attach information or evidence necessary to enable the court to determine eligibility." (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.) Although defendant's petition contained no such evidence or allegations, the prosecutor admitted at the hearing on the petition that the fraudulent check cashed by defendant was worth $800. Since there is support for that finding in the probation report (the recommendation that the court order victim restitution of $810) that is part of the record in this case, we reject the Attorney General's contention regarding the burden of proof.
The Attorney General's remaining contentions are no more persuasive. While defendant's offense does not fit the commonly understood definition of "shoplifting" (see American Heritage Dict. (4th college ed. 2007) p. 1282, col. 2 [shoplifting defined as "[t]o steal (articles or an article) from a store that is open for business"]), Proposition 47 did not leave the definition of the crime of shoplifting to that meaning. By defining shoplifting as entry with intent to commit larceny, section 459.5 uses a term with a specific legal meaning to define the offense. As previously discussed, read together with section 490a, the use of the term "larceny" to define the crime of shoplifting demonstrates an intent to cover all forms of theft totaling $950 or less if committed in a business during regular hours. The commonly understood definition of shoplifting is simply irrelevant to the scope of section 459.5.
We also reject the contention that section 459 convictions are not eligible for section 1170.18 resentencing. As pertinent here, section 1170.18 allows a qualifying defendant to petition for resentencing in accordance with section 459.5. (§ 1170.18, subd. (a).) As previously discussed, section 459.5 preempts prosecution under any other provision for thefts of $950 or less from commercial establishments during regular business hours absent disqualifying factors not relevant here. A defendant whose larceny would be prosecuted under section 459.5 if it were committed after Proposition 47's effective date, is thus eligible for resentencing. Defendant's commercial burglary would be prosecuted under section 459.5 if it were committed today, so he is eligible for resentencing.
DISPOSITION
The order denying defendant's petition for resentencing under Penal Code section 1170.18 is reversed and the matter is remanded for additional proceedings on the petition.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.