People v. Vargas

• Decision Date: 19 January 2016
• Docket Number: B262129
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Grace VARGAS, Defendant and Appellant.

243 Cal.App.4th 1416

197 Cal.Rptr.3d 638

The PEOPLE, Plaintiff and Respondent,

v.Grace VARGAS, Defendant and Appellant.

B262129

Court of Appeal, Second District, Division 8, California.

Filed January 19, 2016

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

FLIER, J.

INTRODUCTION

"On November 4, 2014, voters enacted Proposition 47, ‘The Safe Neighborhoods and Schools Act.’ It was intended to ‘ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment.’ (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) To that end, Proposition 47 reduced most possessory drug offenses and thefts of property valued at less than $950 to straight misdemeanors and created a process for persons currently serving felony sentences for those offenses to petition for resentencing for misdemeanors. (See Couzens & Bigelow, Proposition 47 ‘The Safe Neighborhoods and Schools Act’ (Aug. 2015) p. 6....)" (People v. Buycks (2015) 241 Cal.App.4th 519, 521, 194 Cal.Rptr.3d 33.)

Penal Code section 459.5¹ was among the provisions added by Proposition 47. It reduces certain second degree burglaries to misdemeanors by defining them as "shoplifting," that is, "entering a commercial establishment with the 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).) In this case, the trial court refused to reduce appellant Grace Vargas's second degree burglary conviction to a misdemeanor because she entered a check cashing establishment with the intent to use a forged check for $148, not to commit what the court commonly understood as shoplifting—the entry into a retail establishment to steal displayed merchandise, or in the words of the court, "going into[, e.g.,] Target with the intent to commit a theft."

Appellant argues this interpretation is too narrow, and her entry into the check cashing establishment with the intent to commit theft by false pretenses satisfies the "intent to commit larceny" element of section 459.5 and qualifies her for resentencing.

Respondent disagrees, and urges us to limit section 459.5 to the "common" understanding of shoplifting, which in respondent's view is the "unauthorized entry into a retail establishment, while the establishment is open during regular business hours, with the intent to steal openly-displayed merchandise valuing not more than $950." Alternatively, respondent urges us to follow People v. Gonzales (2015) 242 Cal.App.4th 35, 194 Cal.Rptr.3d 856 (Gonzales ), in which the Fourth District, Division One, recently held the "intent to commit larceny" element in section 459.5 cannot be satisfied by entering a commercial establishment with the intent to commit theft by false pretenses.

As we will explain, both respondent and, in our opinion, Gonzales interpret section 459.5 too narrowly. Certainly, the lay person might understand "shoplifting" to mean entering a retail store during regular business hours with the intent to steal displayed merchandise, as respondent urges. But that is not how the voters defined "shoplifting" in section 459.5 ; instead, they defined it as entering a commercial establishment during business hours with the "intent to commit larceny." Accepting respondent's narrow interpretation would require us to rewrite the statute, which we cannot do. Similarly, we disagree with Gonzales that the phrase "intent to commit larceny" excludes the intent to commit theft by false pretenses. Larceny is statutorily equated with "theft" (§ 490a), and "theft" is defined to include theft by false pretenses, that is, "knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of money, labor or real or personal property." (§ 484, subd. (a).) In holding otherwise, Gonzales relied on People v. Williams (2013) 57 Cal.4th 776, 161 Cal.Rptr.3d 81, 305 P.3d 1241 (Williams ), but we find Williams distinguishable because it involved the interpretation of the "felonious taking" element of robbery, not burglary. Instead, section 459.5 redefined certain second degree burglaries, and our high court has held "[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction." (People v. Parson (2008) 44 Cal.4th 332, 354, 79 Cal.Rptr.3d 269, 187 P.3d 1 (Parson ), citing People v. Nguyen (1995) 40 Cal.App.4th 28, 30–31, 46 Cal.Rptr.2d 840 (Nguyen ).) Because respondent has not disputed that appellant entered the check cashing establishment with the intent to commit theft by false pretenses, she may qualify for resentencing. We therefore reverse.

BACKGROUND

According to a police report of the incident, on February 23, 2013, appellant entered a Money Mart Check Cashing business in Bakersfield and attempted to cash a forged personal check in the amount of $148. An employee contacted the owner of the check, who had reported his checkbook stolen. Appellant was arrested and searched, yielding a methamphetamine pipe in her purse.

Appellant was charged in Kern County with felony second degree burglary (§ 460, subd. (b)), felony forgery of the $148 check (§ 470, subd. (d)), and misdemeanor possession of drug paraphernalia (Health & Saf. Code, former § 11364.1), as well as on-bail enhancements for the felony charges (Pen. Code, § 12022.1 ). Pursuant to a plea agreement, appellant pled guilty to the second degree burglary charge, and the other charges and enhancements were dismissed. She was sentenced to 16 months in custody plus 20 months of mandatory supervision.

Appellant's probation case was transferred to Los Angeles County. Thereafter, she violated probation, and, as part of those proceedings, she petitioned for resentencing pursuant section 1170.18, a provision added by Proposition 47, contending her second degree burglary conviction fell within the newly enacted section 459.5. The People responded that the check cashing business appellant entered was not a "commercial establishment" under section 459.5, and entry with the intent to commit forgery did not constitute shoplifting as it was now defined. The trial court agreed with the latter argument, reasoning that "shoplifting to me means what we all think shoplifting means, going into Target with the intent to commit a theft. [¶] I don't think it means ... going into a check cashing establishment with the intent to commit forgery." The court believed there was "an extra element in forgery above and beyond the larceny and a theft," namely that, "if you're entering an establishment with the intent to commit a fraud in addition to the larceny, which is gaining property by the trick and by the writing, I don't think because of those extra elements, you're entitled to relief...." The court denied the petition, revoked and reinstated probation, and sentenced appellant to 120 days in county jail. Appellant timely appealed.

DISCUSSION

Appellant sought resentencing pursuant to section 1170.18, added by Proposition 47. "Under section 1170.18, a person ‘currently serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be ‘resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) Subdivision (c) of section 1170.18 defines the term ‘unreasonable risk of danger to public safety,’ and subdivision (b) of the statute lists factors the court must consider in determining ‘whether a new sentence would result in an unreasonable risk of danger to public safety.’ (§ 1170.18, subds. (b), (c).)" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1092, 183 Cal.Rptr.3d 362 (Rivera ).)

As enacted by Proposition 47, section 459.5 redefines certain second degree burglaries as "shoplifting" if the value of the property involved is less than $950: "(a) Notwithstanding Section 459 [ (the general burglary statute) ], 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 shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.[¶] (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." As the Legislative Analyst for Proposition 47 explained, "Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting...