People
v.
Quezada

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTFeb 7, 2017
H042829 (Cal. Ct. App. Feb. 7, 2017)

H042829

02-07-2017

THE PEOPLE, Plaintiff and Respondent, v. STACY EILEEN QUEZADA, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. FF827219)

I. INTRODUCTION

Defendant Stacy Eileen Quezada pleaded no contest to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and was placed on probation. She later filed a petition pursuant to section 1170.18, which was enacted as part of Proposition 47, seeking to have her felony offense redesignated as misdemeanor shoplifting under section 459.5. (See § 1170.18, subd. (f).) The trial court denied the petition.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends that the trial court erred in denying her petition, and that the court should have redesignated her offense as misdemeanor shoplifting. For reasons that we will explain, we agree. We will therefore reverse the trial court's order.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2008, defendant was charged by complaint with second degree burglary (§§ 459, 460, subd. (b); count 1) and possessing a forged check with the intent to pass it (§ 475, subd. (a); count 2). Regarding the burglary count, the complaint alleged that on or about September 24, 2008, defendant entered "a building, Bank/Grocery store (Nob Hill), . . . with the intent to commit theft." Regarding the forgery count, the complaint alleged that on or about September 24, 2008, defendant possessed a forged $300 check, "drawn on Wells Fargo," with the intent to pass the check and the intent to defraud.

Defendant pleaded no contest to second degree burglary, with the understanding that she would receive probation with various conditions. The remaining forgery count was submitted for dismissal at the time of sentencing.

In January 2009, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that she serve 90 days in jail. The remaining forgery count was dismissed. Later that year, defendant admitted violating probation and the court modified the terms of her probation.

In August 2015, defendant filed a petition under section 1170.18, subdivision (f) to redesignate her felony burglary conviction as misdemeanor shoplifting. Defendant stated in the petition that she was no longer on probation, that she had completed her sentence, and that she did not have a disqualifying prior conviction. Based on the allegations in the complaint, defendant contended that she had entered Nob Hill Foods, a commercial establishment, with the intent to commit theft. She argued that a police report indicated that she had entered the store during business hours, and that the attempted theft involved $300. According to defendant, her offense therefore met the elements of misdemeanor shoplifting.

The prosecution opposed defendant's petition, contending that defendant "attempted to pass a forged check at a bank inside Nob Hill," and that this conduct did not constitute shoplifting. The prosecution argued that shoplifting involves "tak[ing] merchandise for sale by a merchant, and not . . . other acts such as forgery for cash."

On September 28, 2015, a hearing was held on defendant's petition. Defendant contended that the complaint alleged her entry into Nob Hill Foods, which is a grocery store. She also argued that the shoplifting statute required an "intent to commit larceny" (§ 459.5, subd. (a)), that larceny means theft based on section 490a, and that theft includes the taking of property "by any false or fraudulent representation or pretense" (§ 484, subd. (a)). According to defendant, her conduct therefore met the definition of shoplifting.

The trial court denied defendant's petition. The court stated: "The relevant count does allege that it's a bank within a grocery store. And it does in fact in the second count allege that it is a Wells Fargo Bank. . . . [A]though I suppose technically one could say that she had to enter the grocery store to enter the bank, it's the entry into the bank that is the pertinent question here because that is where the forgery was committed. [¶] And so for that reason, I do find that the defendant is ineligible for the requested relief."

Defendant filed a notice of appeal from the trial court's order.

III. DISCUSSION

A. Legal Background: Proposition 47

On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014), eff. Nov. 5, 2014.) Proposition 47 amended certain statutes to reduce those offenses to misdemeanors, and it also added new misdemeanor offenses. (§ 1170.18, subd. (a); People v. Chen (2016) 245 Cal.App.4th 322, 326 (Chen).)

Relevant here, "Proposition 47 created a new crime of 'shoplifting,' a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary." (In re J.L. (2015) 242 Cal.App.4th 1108, 1112 (J.L.).) Burglary is entry into "any . . . shop, warehouse, store, . . . or other building, . . . with intent to commit grand or petit larceny or any felony." (§ 459.) Second degree burglary, which generally encompasses burglary of any structure other than an inhabited dwelling house, may be punished as a misdemeanor or a felony. (§§ 460, subds. (a) & (b), 461, subd. (b); Chen, supra, 245 Cal.App.4th at p. 326.) "The offense of burglary, when charged as a felony under section 459, remains a felony offense following the passage of Proposition 47 unless the defendant's criminal conduct" meets the elements of shoplifting under section 459.5. (Chen, supra, at p. 327.)

Under section 459.5, "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." (Id., subd. (a), italics added.) If a defendant's conduct meets the definition of shoplifting, it "shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (Id., subd. (b).)

"The voter information guide for Proposition 47 explained that '[u]nder current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary.' [Citation.]" (J.L., supra, 242 Cal.App.4th at p. 1112.)

A defendant who has completed his or her sentence for a felony conviction, and who would have been guilty of a misdemeanor if the Act had been in effect at the time of the offense, may file an application to have the felony conviction designated as a misdemeanor. (§ 1170.18, subd. (f).) The trial court must make the misdemeanor designation if the defendant meets the requisite criteria and has not suffered a specified prior conviction. (Id., subds. (g) & (i).) "[O]n appeal we are concerned with the correctness of the superior court's determination, not the correctness of its reasoning." (People v. Perkins (2016) 244 Cal.App.4th 129, 139.)

B. Analysis

Defendant contends that the trial court erred by denying her petition to redesignate her felony burglary offense as misdemeanor shoplifting. As we have set forth above, section 459.5 defines shoplifting as (1) "entering a commercial establishment," (2) "with intent to commit larceny," (3) "while that establishment is open during regular business hours," (4) "where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950)." (Id., subd. (a).) The parties on appeal agree that defendant's offense involved her intent to pass a $300 forged check at a bank inside Nob Hill Foods. No party below or on appeal disputes that defendant entered the store or bank while it was open during regular business hours, or that the value of the property is less than $950. Thus, the elements at issue are (1) whether defendant entered a "commercial establishment" and (2) whether she had the "intent to commit larceny." (Ibid.) We will consider each element in turn.

1. Commercial Establishment

Regarding the first element, "entering a commercial establishment" (§ 459.5, subd. (a).), defendant contends that her entry into Nob Hill Foods is the relevant structure of entry. She also argues that even if the bank is the relevant structure, a bank is a commercial establishment and thus her entry into the bank met the first element of the shoplifting statute.

The Attorney General contends that defendant's offense, which involved attempting to pass a forged check at a bank, does not constitute shoplifting because the shoplifting statute applies only when the defendant enters a retail establishment with an intent to steal openly displayed merchandise. Thus, according to the Attorney General, the term commercial establishment must be limited to entities that sell goods.

We need not decide whether Nob Hill Foods, which is indisputably a commercial establishment, or the interior bank is the relevant point of entry. As we will explain, even if the bank is the relevant point of entry, we believe a bank qualifies as a commercial establishment within the meaning of the shoplifting statute.

"Where an appeal involves the interpretation of a statute enacted as part of a voter initiative, the issue on appeal is a legal one, which we review de novo. [Citation.]" (People v. Johnson (2016) 1 Cal.App.5th 953, 960.) "When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure. [Citation.]" (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

As the Attorney General observes, the term commercial establishment is not defined in Proposition 47 or in any section of the Penal Code, including the shoplifting statute itself.

However, the term commercial establishment is used in various code sections in addition to the shoplifting statute. Many of these code sections, like the shoplifting statute, lack a definition of the term commercial establishment. The code sections that lack a definition do not reflect an intent by lawmakers to limit the meaning of commercial establishment to entities that sell goods. For example, section 466.8 requires a person who "makes a key capable of opening any door . . . to any residence or commercial establishment . . . by any method involving an onsite inspection of such door" to obtain specified information regarding the person requesting the key, and makes it a misdemeanor if the keymaker fails to do so. (Id., subd. (a), italics added.) Vehicle Code section 21107.6 provides that, when a city or county adopts a proper ordinance, the Vehicle Code will apply to privately owned roads "generally held open to the public for purposes of vehicular travel to serve commercial establishments." (Id., subd. (a), italics added.) Streets and Highways Code section 224 makes it unlawful to deposit any waste "from homes, farms, or commercial establishments" in a refuse receptacle at a safety roadside rest. (Italics added.) In contrast, when lawmakers have apparently intended a more narrow definition of commercial establishment, they have expressly so provided. For example, Health and Safety Code section 108600 generally provides that " '[c]ommercial establishment' means any owner or operator of a business that uses beer dispensing equipment." (Id., subd. (b).)

Regarding the ordinary meaning of commercial establishment, courts have considered dictionary definitions and other sources. In People v. Abarca (2016) 2 Cal.App.5th 475, review granted Oct. 19, 2016, S237106 (Abarca), the appellate court observed: "Black's Law Dictionary defines 'establishment' as '[a]n institution or place of business.' (Black's Law Dict. (7th ed. 1999) p. 566, col. 2.) It defines 'commerce' to mean: 'The exchange of goods and services.' (Id. at p. 263, col. 1, italics added.) Other sources are in accord. (Merriam-Webster Dict. Online (2016) <Merriam-Webster.com> [as of Aug. 18, 2013] [defining 'commerce' as 'activities that relate to the buying and selling of goods and services']; <Business Dict. Online (2016) BusinessDictionary.com> [as of Aug. 18, 2013] [defining 'commerce' as the '[e]xchange of goods or services for money or in kind'].)" (Id. at p. 481.)

Based on these definitions, the appellate court in Abarca determined that "commercial establishment" in the shoplifting statute (§ 459.5, subd. (a)) means "a place of business established for the purpose of exchanging goods or services." (Abarca, supra, 2 Cal.App.5th at p. 481, italics added, review granted; accord, J.L., supra, 242 Cal.App.4th at p. 1114.) The appellate court further determined that banks meet this definition because they collect fees and provide services regarding the depositing and withdrawal of funds, including by providing automatic teller machines for non-depositers. (Abarca, supra, at pp. 481-482.)

The appellate court in Abarca acknowledged that some definitions of "commerce" and "commercial" encompass the sale of goods, and that banks offer only services, not goods. (Abarca, supra, 2 Cal.App.5th at p. 482, review granted.) The court explained, however, that at most this created an ambiguity in the shoplifting statute. The court observed that Proposition 47 directs that the Act be construed " 'broadly . . . to accomplish its purposes,' " which include " '[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.' " (Abarca, supra, at p. 482.) The court explained that using the more limited definition of commercial establishment would "frustrate those purposes and result in the continued incarceration of persons who committed petty theft crimes." (Ibid.) The court concluded that the shoplifting statute should be construed to include "thefts from commercial ventures, such as banks, which sell services." (Ibid.)

Similarly, in People v. Hudson (2016) 2 Cal.App.5th 575, review granted Oct. 26, 2016, S237340 (Hudson), the appellate court determined that " 'commercial' involves being engaged in commerce, including financial transactions," and therefore "the term 'commercial establishment' includes a bank." (Id. at p. 582.) The court acknowledged that a "common understanding of the word 'commercial' encompasses" the sale of goods in a retail establishment. (Ibid.) However, the court rejected that construction of the term commercial in the shoplifting statute because nothing in the text of Proposition 47 supported such a narrow interpretation. (Hudson, supra, at p. 582.) The court further explained that Proposition 47 "directs that it is to be broadly and liberally construed to achieve its stated purpose of requiring misdemeanors instead of felonies for nonserious, nonviolent crimes. [Citations.] Here, entering a bank and attempting to cash a forged check is precisely the type of nonviolent crime encompassed by the Act." (Hudson, supra, at p. 582.)

We agree with the reasoning in Abarca and Hudson and similarly conclude that the term "commercial establishment" (§ 459.5, subd. (a)) includes a bank.

We are not persuaded by the Attorney General's contention that voters intended a more narrow definition based on a "traditional understanding that shoplifting only applies to goods stolen from the retail areas of an establishment." In support of this contention, the Attorney General observes that section 490.2, which was also enacted by the electorate as part of Proposition 47, defines petty theft as the theft of any property where the value of the "money, labor, real or personal property" taken does not exceed $950 (§ 490.2, subd. (a)). In contrast, the shoplifting statute simply states that the value of the "property" taken must not exceed $950 (§ 459.5, subd. (a)). According to the Attorney General, because the petty theft statute lists various types of property that may be taken, such as "money, labor, [and] real property," but the shoplifting statute refers only to "property" (ibid.), the electorate must have intended that only merchandise may be shoplifted and not money, labor, or real property.

We do not believe the language of the petty theft and shoplifting statutes compels the conclusion reached by the Attorney General. Although the shoplifting statute does not define the term property, nothing suggests that the electorate intended to limit the term to merchandise. Further, the fact that the petty theft statute lists certain types of property, whereas the shoplifting statute refers generally to property, might be construed as requiring a broader or unrestricted meaning of the term in the shoplifting statute. Moreover, as we will explain, the shoplifting statute's use of the term "larceny" (§ 459.5, subd. (a)) results in the incorporation of the statutory definition of "theft" from section 484, subdivision (a). Theft under section 484, subdivision (a) includes the use of a false or fraudulent representation or pretense to defraud a person of "money, labor or real or personal property." This description of property is similar to the definition in the petty theft statute. We therefore find unpersuasive the Attorney General's argument that the difference in wording regarding property in the petty theft and shoplifting statutes indicates the electorate intended to limit the latter statute to shoplifting merchandise only.

The Attorney General also contends that the term "commercial establishment" in the shoplifting statute (§ 459.5, subd. (a)) suggests that the electorate intended shoplifting "to apply only to certain types of entries," specifically retail establishments, given that the burglary statute in contrast applies broadly to a variety of businesses, including any "shop, warehouse, store, mill, barn, [or] stable" (§ 459). We agree that the shoplifting statute applies only to a subset of burglaries. However, nothing suggests that the electorate intended the term "commercial establishment" to apply only to retail establishments or only to the retail area of an establishment.

In sum, we conclude that the term "commercial establishment" in the shoplifting statute (§ 459.5, subd. (a)) includes a bank.

2. Intent to Commit Larceny

Defendant contends that the "intent to commit larceny," as required under the shoplifting statute (§ 459.5, subd. (a)), encompasses an intent to commit any form of theft, including her intent to pass a $300 forged check at the bank.

The Attorney General contends that the reference to larceny in the shoplifting statute refers to the common law definition of larceny, and does not include the broad statutory definition of theft, which encompasses various "theories of stealing." The Attorney General argues that defendant's intent involved the passing of a fraudulent check, and that shoplifting occurs only when the defendant has an intent to steal openly displayed merchandise.

In view of the parties' arguments, we must construe the phrase "intent to commit larceny" in section 459.5. "The common law defined larceny as the taking and carrying away of someone else's personal property, by trespass, with the intent to permanently deprive the owner of possession. [Citations.]" (People v. Williams (2013) 57 Cal.4th 776, 782 (Williams).) "Britain's 18th century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states. That import has been widely criticized in this nation's legal community because of the seemingly arbitrary distinctions between the three offenses and the burden these distinctions have posed for prosecutors. [Citations.]" (Id. at pp. 784-785.) "For instance, it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick." (Id. at p. 785.)

The issue of whether a conviction for second degree burglary may be resentenced as misdemeanor shoplifting under section 1170.18 where a forged check is involved is before the California Supreme Court. (See, e.g., People v. Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673.)

"In the early 20th century, many state legislatures, recognizing the burdens imposed on prosecutors by the separation of the three crimes of larceny, false pretenses, and embezzlement, consolidated those offenses into a single crime, usually called 'theft.' " (Williams, supra, 57 Cal.4th at p. 785, fn. omitted.) This was accomplished in California by amending section 484. (Williams, supra, at p. 785.) " 'The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' [Citations.]" (Id. at p. 786.)

Section 484, subdivision (a) states: "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." --------

At the same time the Legislature amended section 484 regarding theft, it also enacted section 490a, which states: "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." (See People v. Nguyen (1995) 40 Cal.App.4th 28, 31 (Nguyen).) For example, burglary requires an "intent to commit grand or petit larceny or any felony." (§ 459, italics added.) By enacting section 490a, "the Legislature has indicated a clear intent that the term 'larceny' used in the burglary statute [(§ 459)] should be read to include all thefts, including 'petit' theft by false pretenses." (Nguyen, supra, 40 Cal.App.4th at p. 31.) In other words, "[a]n intent to commit theft by a false pretense . . . will support a burglary conviction. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 354 (Parson); accord, People v. Fusting (2016) 1 Cal.App.5th 404, 409 (Fusting).)

Under the rules of statutory interpretation we construe the "intent to commit larceny" language in section 459.5 in "the context of the statute as a whole and the overall statutory scheme." (People v. Rizo (2000) 22 Cal.4th 681, 685.) "The voters are presumed to have been aware of existing laws at the time the initiative was enacted. [Citation.]" (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1048.) In addition, " '[w]hen legislation has been judicially construed and a subsequent statute on a similar subject uses identical or substantially similar language, the usual presumption is that the Legislature [or the voters] intended the same construction, unless a contrary intent clearly appears." ' [Citation.]" (Fusting, supra, 1 Cal.App.5th at p. 409.)

Here, the shoplifting statute refers to the crime of burglary twice and specifically refers to the burglary statute, section 459, once. (§ 459.5, subds. (a) & (b).) The shoplifting statute, similar to the burglary statute, also requires an "intent to commit larceny." (§ 459.5, subd. (a), italics added.) Given the shoplifting statute's repeated references to the burglary statute, given that both statutes use the term larceny, given that the term larceny in the burglary statute has been construed to include all thefts (Nguyen, supra, 40 Cal.App.4th at p. 31; see § 490a; Parson, supra, 44 Cal.4th at p. 354), and given the presumption that the electorate intends the same construction of an identical term in the absence of a clear intent to the contrary (Fusting, supra, 1 Cal.App.5th at p. 409), we believe the phrase "intent to commit larceny" in the shoplifting statute should be construed to include theft. Other appellate courts have reached the same conclusion. (See Fusting, supra, 1 Cal.App.5th at p. 411; People v. Garrett (2016) 248 Cal.App.4th 82, 88-90, review granted Aug. 24, 2016, S236012; People v. Smith (2016) 1 Cal.App.5th 266, 274, review granted Sept. 14, 2016, S236112; Hudson, supra, 2 Cal.App.5th at pp. 582-583, review granted; People v. Garner (2016) 2 Cal.App.5th 768, 772, review granted Oct. 26, 2016, S237279; contra, People v. Martin (2016) 6 Cal.App.5th 666, petn. for review filed Jan. 12, 2017, S239205.)

Therefore, in light of the statutory scheme involving larceny we construe the phrase "intent to commit larceny" in section 459.5 as including an intent to commit theft. Defendant's plea of no contest to the offense of second degree burglary with intent to commit theft satisfies the "intent to commit larceny" element of section 459.5. (See Fusting, supra, 1 Cal.App.5th at p. 411.) Accordingly, her second degree burglary offense is eligible to be designated misdemeanor shoplifting under section 1170.18.

The Attorney General contends that the "common understanding" of shoplifting is that it "encompass[es] only the taking and carrying away without payment of openly displayed merchandise from commercial establishments rather than passing fraudulent checks." The Attorney General argues that voters would have believed the new shoplifting statute "referred only to the common understanding of that crime, and did not include entry with the intent to commit theft by other means," because the new statute uses the phrases "commercial establishment" and "open during regular business hours" (§ 459.5, subds. (a)).

We are not persuaded by the Attorney General's argument that voters intended the shoplifting statute to encompass only the "common understanding" of shoplifting. "The statute does not contain any definition of 'shoplifting' other than setting forth the elements of the offense in the specific language of section 459.5." (Fusting, supra, 1 Cal.App.5th at p. 410.) Likewise, Proposition 47 in general does not indicate that voters intended section 459.5 to be limited to the "common understanding" of shoplifting. Regarding the voter information guide for Proposition 47, the Attorney General acknowledges that the guide "simply told the voters that the law would prevent 'shoplifting property worth $950 or less' from being charged as felony burglary."

We are also not persuaded by the Attorney General's reliance on the Bench Notes for CALCRIM No. 1703, the instruction on shoplifting. The Bench Notes for the instruction on shoplifting state: "To instruct on the necessary intent to commit theft, see CALCRIM No. 1800, Theft by Larceny." (Judicial Council of Cal., Crim. Jury Instns. (2016) Bench Notes to CALCRIM No. 1703, p. 1115.) To the extent the Bench Notes suggest that the intent element for shoplifting is limited to an intent to commit larceny, and that the intent element may not be satisfied by the intent to commit theft under other theories, no legal authority is provided to support this proposition.

Moreover, as one appellate court has explained, interpreting the term larceny in the shoplifting statute to include theft "is consistent with the voters' overall intent in passing Proposition 47. Proposition 47 was intended to '[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.' [Citation.] Petty theft by false pretenses is precisely the type of nonserious, nonviolent crime Proposition 47 was aimed toward affecting. For example, Proposition 47 also made the crimes of forgery and drafting checks without sufficient funds of less than $950 misdemeanors. (§§ 473, subd. (b), 476a.) Moreover, theft by false pretenses is less likely to involve violence than a situation where a person has the intention to steal openly displayed merchandise from a store. To provide misdemeanors for that type of theft, but not for theft by false pretenses, would contradict the voters' general intent of requiring misdemeanors for nonserious, nonviolent theft crimes." (Fusting, supra, 1 Cal.App.5th at p. 411.) The California Supreme Court recently stated that "[o]ne of Proposition 47's primary purposes is to reduce the number of nonviolent offenders in state prisons, thereby saving money and focusing prison on offenders considered more serious under the terms of the initiative. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; . . .)" (Harris v. Superior Court (2016) 1 Cal.5th 984, 992 (Harris).)

For these reasons, we conclude that defendant's conviction for second degree burglary is eligible for designation as misdemeanor shoplifting (§ 459.5) under section 1170.18. We will therefore reverse the trial court's order denying defendant's petition for redesignation.

The Attorney General lastly contends that if this court concludes defendant's second degree burglary offense is eligible to be designated as misdemeanor shoplifting, the prosecution should be allowed to withdraw from the plea bargain and to reinstate the dismissed charge. The record does not reflect that the prosecution raised this issue in the trial court when opposing defendant's petition for designation of her offense as a misdemeanor. We also observe that, after the parties filed briefs in this court, the California Supreme Court held in Harris, supra, 1 Cal.5th at p. 987, that the prosecution is not entitled to have a plea agreement set aside when a defendant seeks to have a sentence recalled under Proposition 47. As we have explained, defendant is eligible to have her second degree burglary offense designated as misdemeanor shoplifting. To the extent the prosecution wants to withdraw from the plea bargain and believes a legal ground exists to do so, the prosecution may raise the issue in the trial court and the trial court may consider the issue in the first instance.

IV. DISPOSITION

The September 28, 2015 order denying defendant's petition to redesignate her felony conviction as a misdemeanor is reversed.

/s/_________


BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.