People v. Jimenez

• Decision Date: 08 May 2018
• Docket Number: 2d Crim. No. B283858
• Citation: 22 Cal.App.5th 1282,232 Cal.Rptr.3d 386
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Miguel Angel JIMENEZ, Defendant and Respondent.

22 Cal.App.5th 1282

232 Cal.Rptr.3d 386

The PEOPLE, Plaintiff and Appellant,

v.Miguel Angel JIMENEZ, Defendant and Respondent.

2d Crim. No. B283858

Court of Appeal, Second District, Division 6, California.

Filed May 8, 2018

Gregory D. Totten, District Attorney, Lisa O. Lyytikainen, Senior Deputy District Attorney, and Michelle Contois, Deputy District Attorney, for Plaintiff and Appellant.

Todd W. Howeth, Public Defender, William M. Quest, Senior Deputy Public Defender, for Defendant and Respondent.

PERREN, J.

The People appeal the trial court's order reducing Miguel Angel Jimenez's felony convictions for identity theft under Penal Code section 530.5, subdivision (a)¹ to misdemeanor shoplifting under section 459.5, subdivision (a). They contend that section 459.5, which was enacted as part of Proposition 47 (§ 1170.18), does not apply to section 530.5 identity theft offenses, even when the amount involved does not exceed $950.

In People v. Gonzales (2017) 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ), the defendant cashed two stolen checks valued at less than $950 each. ( Id. at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Our high court determined that the defendant's "act of entering a bank to cash a stolen check for less than $950, traditionally regarded as theft by false pretenses ... , now constitutes shoplifting under [section 459.5]." ( Ibid. ) Section 459.5, subdivision (b) states that any act of shoplifting "shall be charged as shoplifting," and that no one "charged with shoplifting may also be charged with burglary or theft of the same property." ( Gonzales , at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437 ["A defendant must be charged only with shoplifting when [section 459.5] applies"].)

Like the defendant in Gonzales , Jimenez cashed two stolen checks valued at less than $950 each. These acts constitute misdemeanor shoplifting under section 459.5, subdivision (a) and must be charged as such. (§ 459.5, subd. (b); Gonzales , supra , 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The trial court correctly reduced Jimenez's felony convictions for identity theft to misdemeanors pursuant to Proposition 47. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

On two different occasions, Jimenez entered Loan Plus, a commercial check-cashing business, and cashed a check from Outer Wall, Inc., made payable to himself. The checks were valued at $632.47 and $596.60, respectively. Outer Wall, Inc. did not issue the checks in Jimenez's name.

The People filed an information charging Jimenez with two felony violations of section 530.5, subdivision (a) -- the unauthorized use of the personal identifying information of another.² They further alleged that Jimenez had suffered a prior strike conviction for assault with a deadly weapon plus a prison prior.

After a jury convicted Jimenez of both charges, Jimenez admitted the special allegations. He also moved to reduce the convictions to misdemeanors pursuant to Proposition 47 and Gonzales , supra , 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437. Jimenez asserted his conduct constituted misdemeanor shoplifting under section 459.5, subdivision (a), as interpreted by our Supreme Court in Gonzales .

The trial court granted Jimenez's motion over the People's objection. It stated that it had reviewed Gonzales , supra , 2 Cal.5th 858, 216 Cal.Rptr.3d 285, 392 P.3d 437, and People v. Romanowski (2017) 2 Cal.5th 903, 215 Cal.Rptr.3d 758, 391 P.3d 633 ( Romanowski ), and concluded that under the reasoning and holding of those two cases, the "[c]ourt's hands have been somewhat tied." The court explained: "It appears indicated that when there's conduct that results in the theft, which was here theft of property when it was used to derive on two separate instances money less than $950, the Court is mandated to reduce those to misdemeanors. Those are the rulings put forth by the Supreme Court." The court further stated: "And even though [this case] involves a different charge, it appears to be somewhat of a theft charge which was the focus of Gonzale [s ] and Romanowski .... And based on the Court's review of those two recent rulings, the Court feels it is obligated ... to grant the defense motion and reduce Count 1 and Count 2 to misdemeanors as it appears to be that conduct that has been described in Proposition 47 as a shoplifting type of offense."

Following reclassification of the convictions, the trial court sentenced Jimenez to two consecutive six-month terms. The court awarded Jimenez presentence credits, and his sentence was deemed served. The People appeal.

DISCUSSION

Proposition 47

On November 4, 2014, California voters enacted Proposition 47, "The Safe Neighborhoods and Schools Act," which became effective the next day.

( Cal. Const., art. II, § 10, subd. (a).) Proposition 47 reduced certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. ( People v. Rivera (2015) 233 Cal.App.4th 1085, 1091, 183 Cal.Rptr.3d 362.) Under Proposition 47, a defendant may be eligible for misdemeanor resentencing or redesignation under section 1170.18 if he or she would have been guilty of a misdemeanor under Proposition 47, and if the offense would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subds. (a) & (f); Gonzales , supra , 2 Cal.5th at pp. 863, 875, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Resentencing or redesignation under Proposition 47 is "required unless 'the court, in its discretion, determines that resentencing the petitioner [or reclassifying the conviction as a misdemeanor] would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" ( Gonzales , at p. 863, 216 Cal.Rptr.3d 285, 392 P.3d 437.)

Proposition 47 directs that the "act shall be broadly construed to accomplish its purposes."³ One such purpose of Proposition 47 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.' [Citations.] [Proposition 47] also expressly states an intent 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.' " ( Gonzales , supra , 2 Cal.5th at p. 870, 216 Cal.Rptr.3d 285, 392 P.3d 437, citing Harris v. Superior Court (2016) 1 Cal.5th 984, 992, 209 Cal.Rptr.3d 584, 383 P.3d 648, and the Voter Information Guide, supra , text of Prop. 47, §§ 2-3, par. (3), p. 70.)

"Shoplifting"

Proposition 47 added several new provisions, including section 459.5, which created the crime of shoplifting. Section 459.5, subdivision (a) provides: "Notwithstanding [s]ection 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." "Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense." ( Gonzales , supra , 2 Cal.5th at p. 863, 216 Cal.Rptr.3d 285, 392 P.3d 437 ; § 459.5, subd. (a).) Section 459.5, subdivision (b) explicitly limits charging with respect to shoplifting: " '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.' " ( Gonzales , at p. 863, 216 Cal.Rptr.3d 285, 392 P.3d 437.)

No Error in Reducing Jimenez's Felony Convictions to Misdemeanor Shoplifting

The People contend Jimenez is ineligible for reduction of his felony convictions to misdemeanor shoplifting because his offenses constitute identity theft ( § 530.5, subd. (a) ), which remains a felony under Proposition 47. We disagree.

The first published decision to discuss the interplay between felony identity theft ( § 530.5 ) and section 459.5 is People v. Garrett (2016) 248 Cal.App.4th 82, 203 Cal.Rptr.3d 369 ( Garrett ).⁴ Garrett entered a store and attempted to buy gift cards with a stolen credit card. ( Garrett, at p. 84, 203 Cal.Rptr.3d 369.) He pled no contest to commercial burglary and later petitioned for resentencing under Proposition 47. ( Garrett, at p. 86, 203 Cal.Rptr.3d 369.)

The trial court denied the petition. ( Ibid. ) The Court of Appeal reversed, rejecting the Attorney General's argument that because Garrett intended to commit felony identity theft ( § 530.5 ), section 459.5 did not apply. ( Garrett , at pp. 86-90, 203 Cal.Rptr.3d 369.) The court reasoned: "[E]ven assuming [Garrett] intended to commit felony identity theft, he could not have been charged with burglary under ... section 459 if the same act -- entering a store with the intent to purchase merchandise with a stolen credit card -- also constituted shoplifting under [s]ection 459.5." ( Id. at p. 88, 203 Cal.Rptr.3d 369.) Based on this reasoning, the court held that the use of a stolen credit card to purchase merchandise valued at less than $950 constitutes shoplifting under section 459.5. ( Garrett, at p. 90, 203 Cal.Rptr.3d 369.)

Shortly thereafter, our Supreme Court issued Gonzales. Gonzales had stolen his grandmother's checkbook and, on two separate occasions, entered a bank and cashed a check he had made out to himself for $125. ( Gonzales , supra , 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Gonzales was charged with the felonies of second degree burglary and forgery. He pled guilty to burglary, and the forgery count was dismissed. ( Ibid. ) Gonzales petitioned for misdemeanor resentencing under Proposition 47. ( Gonzales , at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The trial court denied his petition, the Court of...