People v. Powell

Decision Date07 March 2017
Docket NumberH043181
PartiesTHE PEOPLE, Plaintiff and Respondent, v. LACOREY POWELL, Defendant and Appellant.
CourtCalifornia Court of Appeals


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EE014155)

Defendant Lacorey Powell was convicted of three felony offenses: first degree burglary (Pen. Code, §§ 459, 460, subd. (a)1) (count 1), receiving stolen property (§ 496, subd. (a) (count 3), and second degree burglary (§§ 459, 460, subd. (b)) (count 8). Years after conviction, defendant filed a petition to redesignate counts 3 and 8 as misdemeanors pursuant to section 1170.18. The trial court granted his petition as to count 3 but denied his petition as to count 8.

Section 1170.18 was added in 2014 when the voters approved Proposition 47, known as the Safe Neighborhoods and Schools Act (Act). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) Section 1170.18 establishes a procedure that a defendant may use to obtain redesignation of a felony conviction as a misdemeanor if the felony sentence has been completed and the offense would have been a misdemeanor under Proposition 47 if it had been committed when the proposition was in effect. (§ 1170.18, subds. (f), (g).) Among the crimes reduced tomisdemeanors by Proposition 47 are certain second degree burglaries that constitute the new crime of misdemeanor shoplifting as defined in section 459.5, which was also added by Proposition 47. (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 5, p. 71; § 459.5, subd. (a).)

The record reflects that, on about March 9, 2000, defendant entered an open commercial establishment (a Ross store) during regular business hours with the intent to commit theft by using a stolen credit card to purchase $585 worth of clothing. On appeal, defendant principally argues that the trial court erred in failing to redesignate that conviction as a misdemeanor by (1) improperly going "outside the bounds of the pleading" to speculate that his intended crime was forgery or fraud rather than larceny, and (2) misconstruing the new misdemeanor shoplifting statute (§ 459.5). Defendant asserts that both his no-contest plea to second degree burglary and the facts underlying his conviction satisfy the intent element of shoplifting as defined by section 459.5.

The critical question is whether defendant had the requisite intent for shoplifting since, as we subsequently explain, the theft offense intended by him did not constitute larceny or larceny by trick but rather theft by false pretenses. The new statute establishing the crime of shoplifting indicates that "intent to commit larceny" is required (§ 459.5, subd. (a)). There is a split of authority whether the intent to commit any theft, including theft by false pretenses, suffices to establish the crime of shoplifting. The same or similar issue is currently pending before the California Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35 (Gonzales), review granted Feb. 17, 2016, S2311712; see also People v. Martin (2016) 6 Cal.App.5th 666 (Martin), review grantedFeb. 15, 2017, S239205 [holding for lead case]; People v. Garner (2016) 2 Cal.App.5th 768, B266881, review granted Oct. 26, 2016, S237279 [same]; People v. Abarca (2016) 2 Cal.App.5th 475, review granted Oct. 19, 2016, S237106 [same]; People v. Smith (2016) 1 Cal.App.5th 266, review granted Sept. 14, 2016, S236112 [same]; People v. Garrett (2016) 248 Cal.App.4th 82, review granted Aug. 24, 2016, S236012 [same]; People v. Valencia (2016) 245 Cal.App.4th 730, review granted May 25, 2016, S233402 [same]; People v. Bias (2016) 245 Cal.App.4th 302, review granted May 11, 2016, S233634 [same]; People v. Root (2016) 245 Cal.App.4th 353, review granted May 11, 2016, S233546 [same]; People v. Triplett (2016) 244 Cal.App.4th 824, review granted April 27, 2016, S233172 [same]; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673 [same].)

We conclude, based upon the long-standing construction of the burglary statute (§ 459) in light of section 490a and the purposes of Proposition 47, that section 459.5 encompasses offenses otherwise qualifying as shoplifting where the offense was committed with intent to commit theft by false pretenses. Consequently, the trial court erred when it denied defendant's petition on the ground that his second degree burglary conviction did not meet the statutory definition of shoplifting. We will reverse its order.

IProcedural History

An amended felony complaint, filed June 5, 2000, alleged that defendant committed first degree burglary (§§ 459, 460, subd. (a)) on or about March 2, 2000 (count 1), received stolen property (§ 496, subd. (a)) on or about March 9, 2000 (count 3), and committed second degree burglary (§§ 459, 460, subd. (b)) on or about March 9, 2000 (count 8). Count 8 of the amended felony complaint specifically allegedthat defendant "enter[ed] a building, Ross, a commercial store, located at 119 E. El Camino Real, Sunnyvale, with the intent to commit theft."

On June 13, 2000, pursuant to a plea agreement, defendant pleaded no contest to the alleged crimes.

A probation report, dated September 18, 2000, described the offenses, including count 8. It indicated that defendant first entered the Ross store on March 2, 2000, and attempted to purchase almost $400 worth of clothing with a VISA credit card that did not belong to him. When asked for his identification, he stated that "he did not have it on him." Defendant left the store, impliedly to look for his identification, and when he returned, he reported that he could not find it. Defendant went back to the Ross store on about March 9, 2000. He attempted to purchase $585 worth of clothing with the same VISA credit card that did not belong to him. When defendant was asked for identification, he stated it was in his vehicle. Defendant left the store but came back without his identification. Later, on the evening of March 9, 2000, a woman entered the store and attempted to purchase $50 worth of merchandise with the same credit card. She left the store after being told the card could not be used because it was believed to be stolen.

On October 23, 2000, the trial court suspended imposition of sentence and placed defendant on three years of formal probation. A 12-month county jail term was imposed as a condition of probation.

On August 27, 2015, defendant filed a petition to redesignate two of his felony convictions, counts 3 and 8, as misdemeanors pursuant to section 1170.18. The petition stated that defendant had completed his sentence in this case.

In a written response to the petition, the Santa Clara County District Attorney (D.A.) agreed that the petition should be granted as to count 3, but asked the court to deny the petition as to count 8. The D.A. asserted that defendant had attempted to use a stolen credit card, which constituted forgery rather than shoplifting. In subsequentbriefing, the D.A. argued that defendant's second degree burglary offense did not qualify as shoplifting as defined by section 459.5 because defendant had not committed larceny and the definition of shoplifting does not encompass all types of theft.

On December 7, 2015, a hearing was held on defendant's petition. The trial court redesignated count 3, but not count 8, as a misdemeanor. The court relied on section 459.5's explicit use of the term "larceny" and found that the crime of shoplifting requires a trespassory taking of property with the intent to permanently deprive and that there is no trespassory taking where property is obtained from a merchant by "forgery or other fraud."

A. Legal Background

" 'Proposition 47 makes certain drug-and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' [Citation.]" (People v. Morales (2016) 63 Cal.4th 399, 404.)

Section 1170.18, which as indicated was added by Proposition 47 (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 14, pp. 73-74), provides a procedure allowing a person who does not have a disqualifying prior conviction (§ 1170.18, subd. (i)) and who has completed a felony sentence for an eligible felony conviction to apply to have the conviction redesignated as a misdemeanor. (§ 1170.18, subd. (f).) Section 1170.18 states that, once a conviction is redesignated as a misdemeanor, the conviction "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)

Section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who wouldhave been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).) "Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)." (§ 1170.18, subd. (h).)

As indicated, Proposition 47 also added sections 459.5 (see Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 5, p. 71). Section 459.5 now provides: "(a) Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with...

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