People v. Sanchez

• Decision Date: 26 January 2017
• Docket Number: H042971
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ROBERT CLIFFORD SANCHEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. ROBERT CLIFFORD SANCHEZ, Defendant and Appellant.

H042971

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

January 26, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1349779)

Defendant Robert Clifford Sanchez appeals the trial court's partial denial of a stipulated petition filed under Penal Code section 1170.18, subdivision (f) to redesignate three commercial burglary convictions (Pen. Code, §§ 459, 460) and one receiving stolen property conviction (Pen. Code, § 496, subd. (a)) as misdemeanors. The trial court denied relief as to the burglary convictions, reasoning that entering a commercial establishment with the intent to commit credit card forgery does not constitute shoplifting under Penal Code section 459.5, subdivision (a). For the reasons stated here, we will reverse and remand the matter for reconsideration of the petition's merits.

I. TRIAL COURT PROCEEDINGS

Defendant was charged by felony complaint with three counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and one count of receiving stolen property (credit cards) (Pen. Code, § 496, subd. (a)). The complaint alleged that defendant entered three businesses on the same date with the intent to commit theft. The complaint also alleged six prior prison terms. (Pen. Code, § 667.5, subd. (b).)¹

As part of a plea agreement, defendant pleaded no contest to the four felony counts and admitted one prior prison term in exchange for a four-year prison sentence and the striking of the other five prior prison term allegations. Consistent with the plea agreement, the trial court sentenced defendant to four years in state prison, consisting of the upper term of three years on one burglary and one year for the prior prison term enhancement. For each of the remaining three counts, the court imposed a two-year middle term concurrent sentence. Defendant served his sentence and was released.

Defendant filed a stipulated petition for redesignation under section 1170.18 signed by a representative of the district attorney's office. The stipulated petition states that defendant was entitled to relief regarding all four felony convictions.

At a hearing on the petition, the deputy district attorney argued that defendant was not entitled to any relief. Regarding the commercial burglary convictions, the deputy argued that "although the value amounts are under the threshold of Proposition 47, because the defendant's intent was to commit forgery, it's not considered shoplifting or larceny." The trial court determined that defendant was entitled to redesignation of the receiving stolen property conviction because the credit cards he possessed were worth less than $950. The trial court denied defendant's petition as to the commercial burglary convictions, reasoning that defendant's offenses did not meet the definition of shoplifting because he "entered with the intent to commit credit card forgery." The trial court purported to recall defendant's sentence and resentence him to four years in state prison, which the court deemed served.

II. DISCUSSION

Defendant argues the trial court erred in finding that entering a commercial establishment with the intent to commit theft by false pretenses cannot qualify as shoplifting under section 459.5, subdivision (a). That issue is currently pending before the Supreme Court. (People v. Gonzalez, review granted February 17, 2016, S231171.)

A. PROPOSITION 47

Approved by voters in November 2014, Proposition 47 changed several offenses from felonies to misdemeanors. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).) Proposition 47 added section 459.5, which states: "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)." (§ 459.5, subd. (a); see People v. Garrett (2016) 248 Cal.App.4th 82, 87, review granted August 24, 2016, S236012 (Garrett).)

Proposition 47 also added section 1170.18, subdivision (f), which provides a mechanism for an individual who has already served a sentence to have a felony conviction redesignated as a misdemeanor: "A person who has completed his or her sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor ... 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." The trial court "shall designate the felony offense or offenses as a misdemeanor" if the petition meets the criteria in section 1170.18, subdivision (f). (§ 1170.18, subd. (g).)

B. DEFENDANT IS NOT CATEGORICALLY PROHIBITED FROM § 1170.18 RELIEF

1. Defendant Met His Initial Burden and Preserved His Appellate Arguments

The People contend that defendant failed to make a prima facie showing that he was entitled to relief and that he forfeited his appellate arguments by not responding tothe prosecutor's objection at the redesignation hearing. Defendant had the burden to show prima facie eligibility for relief under section 1170.18. (Sherow, supra, 239 Cal.App.4th at pp. 879-880.) He effectively satisfied that burden by filing a stipulated petition for redesignation—signed by a representative of the district attorney's office—which listed his second degree burglary convictions as felony offenses that "would have been misdemeanor offenses if committed" after Proposition 47 became effective. Though the district attorney's office later objected to the stipulation it had previously signed, we find that the stipulation was sufficient to meet defendant's initial burden and preserve his appellate arguments.

2. Entering with the Intent to Commit Theft By False Pretenses Can Constitute Shoplifting

The People argue that entering a commercial establishment with the intent to commit theft by false pretenses cannot constitute shoplifting because "section 459.5 requires an intent to commit larceny upon entry."

After the People filed their respondent's brief, a different panel of this court decided Garrett. (Garrett, supra, 248 Cal.App.4th 82, rev. granted.) Garrett and another person (Mattern) entered a convenience store, took several gift cards off a rack, and brought them to the cashier. When police arrived outside, Mattern discarded several items in a trash can and left the store. Police found a stolen wallet containing a credit card in that trash can and arrested Garrett and Mattern. (Id. at p. 85.) Garrett eventually pleaded no contest to unlawfully entering a convenience store " 'with the intent to commit larceny and any felony' " under section 459 and received a prison sentence. (Garrett, at pp. 85, 87.) When Garrett later petitioned for resentencing under section 1170.18, the trial court denied the petition.

On appeal, this court interpreted the meaning of "larceny" as that term is used in section 459.5. (Garrett, supra, 248 Cal.App.4th at pp. 87-88, rev. granted.) We noted that section 490a provides a rule of statutory construction: " 'Wherever any law orstatute 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.' " (Garrett, at p. 88.) Theft, in turn, is defined by section 484, subdivision (a) "as follows: '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 ... is guilty of theft.' " (Garrett, at pp. 88-89.) We reasoned that using a stolen credit card constitutes theft by false pretenses because by "using a stolen credit card, a thief must falsely represent that he or she is the proper owner of the credit card or has the consent of the owner to use it." (Id. at p. 89.) Because theft by false pretenses is a form of larceny, we concluded that entering a commercial establishment with the intent to use a stolen credit card could constitute shoplifting under section 459.5. (Garrett, at p. 89.)

Though Garrett is no longer binding precedent after the Supreme Court's grant of review, we find its reasoning persuasive.

3. Defendant May Be Entitled to Redesignation

The record is unclear regarding the details of the crimes for which defendant was convicted. There was no preliminary hearing, and defendant apparently waived preparation...