People v. Garrett

• Decision Date: 15 June 2016
• Docket Number: H041927
• Citation: 248 Cal.App.4th 82,203 Cal.Rptr.3d 369
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ryan James GARRETT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

248 Cal.App.4th 82

203 Cal.Rptr.3d 369

The PEOPLE, Plaintiff and Respondent

v.Ryan James GARRETT, Defendant and Appellant.

H041927

Court of Appeal, Sixth District, California.

Filed June 15, 2016

Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Huy T. Loung, Deputy Attorney General, for Plaintiff and Respondent.

Márquez, J. Defendant Ryan James Garrett appeals from the denial of his petition for resentencing under Proposition 47. In February 2014, defendant and another person entered a convenience store with a stolen credit card and attempted to buy gift cards valued at $50. Defendant pleaded no contest to commercial burglary under Penal Code section 459

.

In December 2014, defendant petitioned for resentencing on the ground that Proposition 47 made the offense a misdemeanor under Penal Code section 459.5

(shoplifting). The trial court denied the petition on the ground that defendant was not eligible for resentencing because he had entered the convenience store with the intent to commit felony identity theft under Penal Code section 530.5.

We hold that entering a commercial establishment with the intent to use a stolen credit card to purchase property valued at no more than $950 constitutes shoplifting, a misdemeanor under subdivision (a) of Penal Code section 459.5

. Furthermore, subdivision (b) of Penal Code section 459.5 provides that “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting .” (Pen.Code, § 459.5, subd. (b), italics added.) On these grounds, we conclude defendant is eligible for resentencing under Proposition 47. Accordingly, we will reverse the trial court's denial of the petition.

I. Factual and Procedural Background

A. Facts of the Offense¹

Defendant and Emily Mattern drove a red BMW to a QuikStop convenience store around 2 a.m. Police, who had an arrest warrant for Mattern, had been searching for the car. When the police spotted the car, it was parked in front of the QuikStop while defendant and Mattern were inside. A video camera in the store recorded their activities. Police subsequently interviewed the store cashier as well. The evidence established the following.

Defendant and Mattern were browsing in the store when Mattern approached a rack of gift cards, grabbed a number of cards off the rack, and approached the cashier. Before Mattern could purchase the gift cards, police appeared outside the store. At that point, Mattern abruptly turned around, walked away from the cashier, and discarded multiple items in a trash can just before police entered the store. Defendant asked the cashier if there was a back door through which they could exit, but the cashier said there was no such door. The police then entered the store and arrested Mattern. In the trash can, police found a wallet belonging to Julie Skelton and a credit card bearing her name. The credit card had been removed from the wallet. Police subsequently interviewed Skelton, who told them her wallet and other items had been stolen from her car.

In the red BMW, police found a backpack and a cell phone belonging to defendant. In the backpack, police found three canisters of pepper spray, a large pair of metal bolt cutters, and a punch tool for breaking windows. On the cell phone, police found text messages discussing the sale of a $300 Macy's gift card for cash or drugs. On defendant's person, police found a half-gram of heroin.

B. Procedural Background

On March 5, 2014, the prosecution charged defendant by information with six counts: Count One—Commercial burglary (Pen.Code, § 459

); Count Two—Receiving stolen property (Pen.Code, § 496, subd. (a) ); Count Three—Possession of heroin (Health & Saf.Code, § 11350, subd. (a) ); Count Four—Misdemeanor identity theft (Pen.Code, § 530.5, subd. (c)(1) ); Count Five—Possession of burglary tools (Pen.Code, § 466 ); and Count Six—Possession of tear gas by a felon (Pen.Code, § 22810, subd. (a) ). Count One alleged defendant had entered the QuikStop “with the intent to commit larceny and any felony.”² The information further alleged defendant had suffered a prior conviction for a serious or violent felony. (Pen.Code, § 667, subds. (b)

-(i).) On June 12, 2014, defendant pleaded no contest to Count One (commercial burglary) and admitted the strike allegation in exchange for 32 months in state prison and dismissal of the remaining counts.

In December 2014, defendant petitioned the trial court for resentencing under Proposition 47. In a sworn declaration supporting the petition, counsel for defendant stated that the gift cards were worth approximately $50. In a written opposition to the petition, the prosecution also stated the gift cards had a total value of $50. But the prosecution argued, among other things, that defendant could not prove he and Mattern had only intended to take $50 worth of merchandise when the police interrupted them.

The trial court denied defendant's petition on the ground that defendant was not eligible for resentencing. The court assumed for purposes of its ruling that the value of the gift cards was $50. But the court ruled that the intent to use a credit card to steal the gift cards made the offense ineligible for resentencing. The court opined that if defendant had entered the store with the intent to steal $50 worth of merchandise, such conduct would have constituted an intent to commit petty theft, making the offense eligible for resentencing. However, because defendant and Mattern intended to use a credit card to purchase the gift cards, the court ruled that defendant had intended to commit felony identity theft under Penal Code section 530.5

, and not petty theft. Accordingly, the court denied the petition on the ground that entering a store with the intent to commit felony identity theft is not an offense eligible for resentencing under Proposition 47.

II. Discussion

Defendant contends the trial court erred in denying his petition because he is eligible for resentencing under Penal Code section 459.5

, which defines shoplifting and makes it a misdemeanor under Proposition 47. The Attorney General, adopting the trial court's reasoning, argues that substantial evidence shows defendant entered the store with the intent to commit felony identity theft under Penal Code section 530.5, making him ineligible for resentencing.

A. Legal Principles

In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Act), reducing certain drug- and theft-related offenses to misdemeanors. Among other things, the Act added Penal Code section 459.5

(Section 459.5 ), making the offense of “shoplifting” a misdemeanor: “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). Any other entry into a commercial establishment with intent to commit larceny is burglary.” (Pen.Code, § 459.5, subd. (a).) Section 459.5 mandates that shoplifting shall be punished as a misdemeanor except for persons having certain prior convictions not at issue here. Subdivision (b) of Section 459.5 further provides: “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting . No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Pen.Code, § 459.5, subd. (b), italics added.)

Proposition 47 also created a new resentencing scheme for persons serving felony sentences for specified offenses made misdemeanors by the Act. (§ 1170.18, subd. (a).) Under the resentencing scheme, a person currently serving a sentence for a felony conviction may petition for recall if the person would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense.

B. Defendant is Eligible for Resentencing Under Penal Code Section 459.5

Defendant pleaded no contest to Count One, which charged him with unlawfully entering the QuikStop “with the intent to commit larceny and any felony” under Penal Code section 459

. He contends his offense now falls under Section 459.5 because he entered the QuikStop with the intent to commit larceny, and the value of the property to be taken was less than $950. The Attorney General contends the trial court properly found defendant intended to commit felony identity theft and not larceny.³

As noted above, the prosecution had initially charged defendant with misdemeanor identity theft—a charge that was dismissed when defendant pleaded no contest to the burglary charge. Nonetheless, we will assume, for the sake of argument, that the record contains substantial evidence that defendant entered the QuikStop with the intent to commit felony identity theft under Penal Code 530.5

. A given act may constitute more than one criminal offense. It follows that a person may enter a store with the intent to commit more than one offense—e.g., with the intent to commit both identity theft and larceny. Furthermore, 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. (Pen.Code, § 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. (Pen.Code, § 459.5, subd. (b).) Thus, even assuming 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...