People v. Gonzales, D067554

• Court: California Court of Appeals
• Citation: 242 Cal.App.4th 35,194 Cal.Rptr.3d 856
• Decision Date: 12 November 2015
• Docket Number: D067554
• Parties: The PEOPLE, Plaintiff and Respondent, v. Giovanni GONZALES, Defendant and Appellant.

242 Cal.App.4th 35
194 Cal.Rptr.3d 856

The PEOPLE, Plaintiff and Respondent,
v.
Giovanni GONZALES, Defendant and Appellant.

D067554

Court of Appeal, Fourth District, Division 1, California.

Filed November 12, 2015

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidaland Christen E. Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

McINTYRE, J.

242 Cal.App.4th 37

Giovanni Gonzales pleaded guilty to second degree commercial burglary in violation of Penal Code section 459(all statutory references are to this code). The trial court denied Gonzales's petition for recall

194 Cal.Rptr.3d 858

of his felony sentence. He appeals, contending the trial court erred in denying his petition because: (1) the conduct underlying his offense meets the statutory definition of misdemeanor shoplifting under section 459.5, a crime added in 2014 by Proposition 47, the Safe Neighborhoods and Schools Act (the Act); and (2) section 1170.18 impliedly applies to convictions pursuant to section 459. We reject Gonzales's arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, Gonzales took two bank checks from his grandmother. He went into a Bank of America twice during regular business hours and cashed the checks. The checks were for $125 each, written payable to Gonzales, and signed with his grandmother's name. Gonzales's grandmother stated she did not sign the checks and Gonzales did not have permission to use her checks.

The District Attorney charged Gonzales with second degree commercial burglary in violation of section 459and forgery. Gonzales pleaded guilty to the commercial burglary and the District Attorney agreed to dismiss the forgery charge. The trial court suspended imposition of sentence, placed

242 Cal.App.4th 38

Gonzales on formal probation for three years, and ordered him to serve 50 days in county jail with credit for time served.

In January 2015, Gonzales petitioned for recall of his sentence and requested to have his felony conviction reduced to a misdemeanor pursuant to section 1170.18. Gonzales argued that his offense qualified as “shoplifting” under section 459.5. Alternatively, Gonzales argued the court should liberally construe the Act, which would permit it to change his felony to a misdemeanor under section 459. The trial court denied Gonzales's petition, reasoning that his offense did not qualify as “shoplifting” under section 459.5 because there was no larceny. The court also rejected Gonzales's request to reduce his commercial burglary to a misdemeanor.

DISCUSSION

I. Shoplifting Under Section 459.5

Gonzales contends the trial court should have granted his petition for recall and resentencing because his offense met the statutory definition of shoplifting under section 459.5. We disagree.

On November 4, 2014, the voters enacted Proposition 47, the Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 183 Cal.Rptr.3d 362(Rivera).) The Act reclassified certain theft-and drug-related crimes from felonies to misdemeanors unless they were committed by ineligible defendants. (Id.at p. 1091, 183 Cal.Rptr.3d 362.) It also established a procedure for qualifying defendants to petition for recall and modification of their prior convictions and sentences. (§ 1170.18, subd. (a).)

Among its reclassifying provisions, Proposition 47 added a new crime, shoplifting (§ 459.5). Section 459.5 provides:

“(a) ... shoplifting is defined as entering a commercial establishment with intent to commit larcenywhile 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. Shoplifting

194 Cal.Rptr.3d 859

shall be punished as a misdemeanor, except [when the defendant has a disqualifying prior conviction].

“(b) 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.” (Italics added.)

242 Cal.App.4th 39

Gonzales contends that although his offense does not appear to meet the colloquial definition of “shoplifting,” his actions do meet the statutory definition as set forth in section 459.5. Specifically, he asserts that his acts of entering a Bank of America branch, a commercial establishment, during regular open business hours, with the intent to commit larceny, and taking away $250 in cash meets the definition of shoplifting in section 459.5. Based on our independent review, we reject Gonzales's argument because as defined by section 459.5, the offense of shoplifting requires an “intent to commit larceny,” which was not present in this case. (See People v. Love (2005) 132 Cal.App.4th 276, 284, 34 Cal.Rptr.3d 6[“Statutory construction is a question of law which we decide independently.”].)

The meaning of “larceny” is clear and unambiguous. “Larceny requires the taking of another's property, with the intent to steal and carry it away. [Citation.] ‘Taking,’ in turn, has two aspects: (1) achieving possession of the property, known as ‘caption,’...