Filed 8/29/18
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


THE PEOPLE,                                    2d Crim. No. B283097
                                            (Super. Ct. No. 2015012942)
     Plaintiff and Appellant,                    (Ventura County)

v.

AMAYA MONIQUE MARTIN,

     Defendant and Respondent.


       The fabric of the law will stretch only so far before it will
unravel. Here, a professional thief entered in to an international
conspiracy to commit as many petty thefts as she could get away
with. She was foiled by security guards and the police. She
seeks to stretch Proposition 47 to cover her conspiracy to commit
petty theft. She convinced the trial court. But it just won’t
stretch that far. It is difficult, if not impossible, to believe that
the electorate intended that a person, such as respondent, with
five prior separate prison terms who joined an international
conspiracy to commit petty theft, would deserve misdemeanor
treatment. To say it out loud or put it on paper causes
considerable pause.
       Respondent Amaya Monique Martin was convicted of felony
conspiracy to commit petty theft. (Pen. Code, § 182, subd. (a)(1).)1
The People appeal from an order granting respondent’s petition
to recall her felony sentence and resentence her to misdemeanor
shoplifting pursuant to sections 459.5 and 1170.18, which were
enacted by Proposition 47.
       We reverse. The trial court erroneously determined that a
felony conviction for conspiracy to commit petty theft is eligible
for reduction to a misdemeanor under section 1170.18. We hold
that Proposition 47 does not authorize the reduction of a felony
conspiracy conviction to misdemeanor shoplifting.
                Negotiated Disposition and Sentence
       The information consisted of eight counts. In January 2016
respondent pleaded guilty to three counts: count 2 (felony
commercial burglary over $950 in violation of section 459), count
4 (felony conspiracy to commit petty theft), and count 8
(misdemeanor shoplifting in violation of section 459.5,
subdivision (a)). All of the crimes were committed on different
dates in January 2015. The remaining counts were dismissed.
Respondent admitted five prior separate prison terms (§ 667.5,
subd. (b)) and one prior “strike.” (§ 667, subds. (c)-(e)(1).)
       The trial court dismissed the strike and three prior prison
terms. It sentenced respondent to prison for three years, four
months, to be served consecutively to a four-year prison term
imposed for a 2015 burglary conviction in another case. The
consecutive prison sentence was calculated as follows: eight
months for the burglary (one-third the middle term of two years),
plus eight months for conspiracy to commit petty theft (same),
plus two years for the two prior prison terms. As to the

      1
          All statutory references are to the Penal Code.



                                   2
misdemeanor, respondent was sentenced to a concurrent term of
180 days.
               Facts Underlying the Three Counts to
                 Which Respondent Pleaded Guilty
      As to count 4, conspiracy, on January 24, 2015, a security
guard saw respondent and two other women in the cosmetic aisle
of a Walmart store. He recognized the women as suspects in a
prior shoplifting at another Walmart store. One of the women
put cosmetics into her purse. The three women walked past open
cash registers and exited the store. The security guard stopped
them. He recovered stolen cosmetics valued at $794.50.
Cosmetics valued at $486.30 were missing and never recovered.
      A sheriff’s deputy viewed a video of the incident. The video
“showed three female subjects entering the Wal-Mart store,
walking to the cosmetic aisle, all standing together, looking
around the area nervously, putting items into purses, and then
walking out of the store together.” It appeared that “they were
all working together.”
      As to count 2, felony commercial burglary, on January 16,
2015, respondent and two other persons “arrived together in a . . .
sedan” at a Walmart store. They entered the store and walked to
the cosmetics aisle. “They proceeded to remove cosmetics items
from the shelves and fill a purse and a grocery-type reusable bag
that was placed . . . in the [shopping] cart.” “They all left the
store within seconds of one another after walking past cash
registers [and] not paying for the items they selected.” The stolen
cosmetics were valued at $966.2 The property was never
recovered.

      The trial court did not reduce the felony commercial
      2

burglary (count 2) and it plays no part in this appeal.



                                 3
       As to count 8, misdemeanor shoplifting, on January 23,
2015, respondent and two other persons entered an Alberston’s
store together. While respondent appeared to act as “a lookout,”
the two other persons removed “[a]lcohol items and possibly
cosmetics” from shelves and “secret[ed] them.”
       An Albertson’s employee saw the three persons “walking
out the store with a cart loaded with merchandise which they
didn’t pay for.” The employee said, “‘Hey, what are you doing?’
And they just kept walking.” The employee could not recall the
value of the property taken.
       Respondent told detectives: “She had been approached
earlier last year and ‘recruited’ to steal cosmetics for someone
who would send them to Latin America, primarily Guatemala.
She would receive about $200 each time she took $1,000 of
cosmetics.”
          Proposition 47, Section 459.5, aka “Shoplifting”
       At the general election on November 4, 2014, the voters
approved Proposition 47, which became effective the next day.
“Proposition 47 created the new crime of ‘shoplifting,’ defined as
entering an open commercial establishment during regular
business hours with the intent to commit ‘larceny’ of property
worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision
is related to the general burglary statute, which also applies to
an entry with intent to commit ‘larceny’ or any felony. (Pen.
Code, § 459.)” (People v. Gonzales (2017) 2 Cal.5th 858, 862
(Gonzales).) Section 459.5, subdivision (a) provides, “Shoplifting
shall be punished as a misdemeanor.”
       Proposition 47 added section 1170.18 to the Penal Code. If
a person is serving a sentence for a felony offense that would
have been misdemeanor shoplifting pursuant to section 459.5,




                                 4
section 1170.18 permits the person to file a petition to recall the
felony sentence and resentence the person to a misdemeanor.
           Conspiracy to Commit Petty Theft Is a “Wobbler”
       Since 1872 when the Penal Code was enacted, conspiracy
has been a separate and distinct crime. “[T]raditional conspiracy
encompasses an agreement to commit ‘any crime.’ (§ 182, subd.
(a)(1).) Therefore, it is possible to conspire to commit a
misdemeanor. [Citations.]” (People v. Johnson (2013) 57 Cal.4th
250, 262 (Johnson).)
       “Conspiracy to commit [misdemeanor] petty theft . . . may
be punished as either a felony or a misdemeanor. [Citations.]”
(People v. Mullins (2018) 19 Cal.App.5th 594, 611 (Mullins).)
Such a crime is referred to as a “‘wobbler.’” (People v. Williams
(2010) 49 Cal.4th 405, 461, fn. 6.) “The conviction [of a wobbler]
constitutes a felony unless and until the crime is reduced by the
court to a misdemeanor. [Citations.]” (Ibid.) “‘“If [as in the
instant case] state prison is imposed, the offense remains a
felony; if a misdemeanor sentence is imposed, the offense is
thereafter deemed a misdemeanor. [Citations.]”’ [Citation.]”
(People v. Tran (2015) 242 Cal.App.4th 877, 885.)
        “‘A conviction for conspiracy requires proof of four
elements: (1) an agreement between two or more people, (2) who
have the specific intent to agree or conspire to commit an offense,
(3) the specific intent to commit that offense, and (4) an overt act
committed by one or more of the parties to the agreement for the
purpose of carrying out the object of the conspiracy. [Citations.]’
[Citation.]” (Mullins, supra, 19 Cal.App.5th at p. 607.)
       “Once one of the conspirators has performed an overt act in
furtherance of the agreement, ‘the association becomes an active
force, [but] it is the agreement, not the overt act, which is




                                 5
punishable. Hence the overt act need not amount to a criminal
attempt and it need not be criminal in itself.’ [Citations.]”
(Johnson, supra, 57 Cal.4th at p. 259.)
       “‘Conspiracy is an inchoate offense, the essence of which is
an agreement to commit an unlawful act.’ [Citations.]
Conspiracy separately punishes not the completed crime, or even
its attempt. The crime of conspiracy punishes the agreement
itself and ‘does not require the commission of the substantive
offense that is the object of the conspiracy.’ [Citation.]
‘Traditionally the law has considered conspiracy and the
completed substantive offense to be separate crimes.’ [Citation.]”
(Johnson, supra, 57 Cal.4th at pp. 258-259; see also Callanan v.
United States (1961) 364 U.S. 587, 593.)
           Proposition 47 Does Not Apply to Conspiracy to
                         Commit Petty Theft
       People v. Segura (2015) 239 Cal.App.4th 1282 (Segura), is
directly on point, but the trial court refused to follow it. In
Segura the defendant was convicted of conspiracy to commit
theft. “He admitted he had unlawfully entered a 7-Eleven store
with the intent to commit larceny and had conspired with two
codefendants to commit a theft.” (Id. at p. 1283.) The trial court
denied the defendant’s petition to recall his felony sentence and
resentence him to a misdemeanor.
       The Segura court upheld the trial court’s ruling “because
Proposition 47 does not apply to convictions for conspiracy.”
(Segura, supra, 239 Cal.App.4th at p. 1284.) It said: “Section
1170.18 specifies the sections of the Health and Safety Code and
Penal Code to which it applies. (Pen. Code, § 1170.18, subds. (a),
(b).) It does not include Penal Code section 182, the conspiracy
count. Thus, the trial court correctly concluded it lacked the




                                 6
statutory authorization to resentence defendant on the
conspiracy count. ‘“If the language [of a statute] is unambiguous,
the plain meaning controls.”’ [Citation.] And here there is no
ambiguity.” (Ibid., first brackets in original.)
       Without mentioning Segura, our Supreme Court impliedly
rejected Segura’s reasoning in People v. Page (2017) 3 Cal.5th
1175, 1184-1185 (Page). Page was decided five months after the
trial court had resentenced respondent to misdemeanor
“shoplifting.” The Supreme Court stated: “The statute [section
1170.18, subdivision (a)] does not say that only those defendants
who were convicted under the listed sections are eligible for
resentencing. The statute instead says that those who are
eligible (i.e., defendants serving a felony sentence who would
have only been guilty of a misdemeanor had Prop[osition] 47 been
in effect at the time of their offenses) may ‘request resentencing
in accordance with’ the listed sections. (§ 1170.18, subd. (a).)”
(Page, supra, at p. 1184; accord, People v. Martinez (2018) 4
Cal.5th 647, 652 [“the requirement that resentencing occur ‘in
accordance with’ one of the nine code sections listed in Penal
Code section 1170.18(a) does not make resentencing eligibility
contingent upon the petitioner having been convicted under one
of these provisions”].) Thus, “the mere fact that [section 182, the
conspiracy statute] is not one of the code sections enumerated in
Penal Code section 1170.18(a) is not fatal to [a defendant’s]
petition for resentencing on [his conspiracy] offense.” (Ibid.)
With the benefit of hindsight, the issue in Segura should have
been whether the defendant would have been guilty of
misdemeanor shoplifting in violation of section 459.5, instead of
conspiracy to commit theft in violation of section 182, subdivision




                                 7
(a), had Proposition 47 been in effect at the time of the
defendant’s offense.
       The Court of Appeal in Segura believed that its
interpretation of the statute would not lead to an “‘absurd
result.’” (Segura, supra, 239 Cal.App.4th at p. 1284.) It
explained, “Crimes committed pursuant to a conspiracy present a
greater evil than crimes committed by an individual. As the
court long ago realized, ‘a group of evil minds planning and
giving support to the commission of crime is more likely to be a
menace to society than where one individual alone sets out to
violate the law.’ [Citation.]” (Ibid.)
       The trial court here acknowledged that Segura “holds that
a felony conspiracy conviction is not eligible for Penal Code
section 1170.18 resentencing.” Pursuant to the doctrine of stare
decisis, the trial court was required to follow Segura since the
Supreme Court had not yet decided Page. “Decisions of every
division of the District Courts of Appeal are binding upon all the .
. . superior courts of this state . . . . Courts exercising inferior
jurisdiction must accept the law declared by courts of superior
jurisdiction. It is not their function to attempt to overrule
decisions of a higher court. [Citations.]” (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
       The doctrine of stare decisis “‘is based on the assumption
that certainty, predictability and stability in the law are the
major objectives of the legal system . . . .’ [Citations.]” (Peterson
v. Superior Court (1995) 10 Cal.4th 1185, 1195.) “[A]ny acts
which exceed the defined power of a court in any instance,
whether that power be defined by constitutional provision,
express statutory declaration, or rules developed by the courts
and followed under the doctrine of stare decisis, are in excess of




                                  8
jurisdiction, in so far as that term is used to indicate that those
acts may be restrained by prohibition or annulled on certiorari.”
(Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291,
italics added.) “Therefore, the [trial court] exceeded its
jurisdiction when it refused to follow [Segura].” (Auto Equity,
supra, 57 Cal.2d at p. 456; see also Cuccia v. Superior Court
(2007) 153 Cal.App.4th 347, 354 [procedure to be utilized where
trial court disagrees with binding precedent].)
       “[T]he rule [of stare decisis] has no application where there
is more than one appellate court decision, and such appellate
decisions are in conflict. In such a situation, the court exercising
inferior jurisdiction can and must make a choice between the
conflicting decisions.” (Auto Equity, supra, 57 Cal.2d at p. 456.)
       Here, the trial court said that Segura “seem[s] to be at
odds” with People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta),
which “states the applicable law.” We disagree. “Huerta pled
guilty to one felony count of second degree commercial burglary (§
459) based on her theft of eight bottles of perfume worth $463
from a Sears Department Store. Huerta sought to have her
conviction redesignated as the newly created misdemeanor
of shoplifting . . . .” (Huerta, supra, at p. 541.) The People argued
that the burglary involved an uncharged conspiracy to commit
larceny and that “burglary predicated on such a conspiracy may
be charged as a felony even after the electorate enacted
Proposition 47.” (Id. at p. 545.)
       The Court of Appeal rejected the People’s argument: “It
follows under the plain text of the statute [section 459.5] that
prosecutors would have been required to charge her with
shoplifting and could not have charged her with burglary
predicated on conspiracy had Proposition 47 been in effect at the




                                 9
time of her offense. She therefore qualifies to have her burglary
conviction redesignated as misdemeanor shoplifting.” (Huerta,
supra, 3 Cal.App.5th at p. 545, fn. omitted.) The court observed:
“Conspiracy played no role in the prosecution of Huerta. The
People charged her with burglary, petty theft, and grand theft.”
(Id. at p. 545.)
       Huerta’s analysis does not preclude a conspiracy conviction
under the circumstances of Segura or the instant case. Unlike
the defendant in Huerta, the defendant in Segura was charged
with and convicted of felony conspiracy to commit theft. Huerta,
therefore, is distinguishable from Segura. Huerta does not even
mention Segura, an extant opinion from its very own district.
       To the extent that the Huerta court purports to answer the
People’s contention on the merits, its analysis is not persuasive.
The People framed the issue by claiming that the
defendant “‘entered the department store in concert with [an
accomplice] with the intent to commit the crime of conspiracy
therein.’” (Huerta, supra, 3 Cal.App.5th at p. 544, brackets in
original.) This is nonsense. Criminals do not enter a department
store to commit conspiracy therein. They “hatch” a plot to
commit the target crime or crimes well before they enter the
store. As in Segura, here, and perhaps in Huerta, the
conspiracies were complete upon agreement to commit the target
offense with one conspirator committing an overt act, such as
driving to the store.3

      3
       John Wilkes Booth did not commit a conspiracy by
entering Ford’s Theater. George Atzerodt did not commit a
conspiracy by entering the Kirkwood Hotel where Andrew
Johnson was living. Lewis Payne did not commit a conspiracy by
entering the home of William Seward. They committed the crime
of conspiracy at Mary Surratt’s dining room table when they



                                10
       The following hypothetical illustrates this rule: If
respondent and her coconspirators were secretly recorded by a
police informant as they planned the commission of petty theft
inside a department store and were apprehended by the police
after committing an overt act but before entering the store, the
crime of conspiracy would be complete. On the other hand, the
People could not charge respondent with misdemeanor
shoplifting because it requires actual entry into the store.
(§ 459.5, subd. (a); Gonzales, supra, 2 Cal.5th at p. 871 [statute
“defin[es] shoplifting as an entry into a business with an intent to
steal, rather than as the taking itself”].)
       Thus, under the hypothetical facts, respondent’s conspiracy
conviction could not be reduced to misdemeanor shoplifting
because she would not have been guilty of shoplifting had
Proposition 47 been in effect at the time of the offense.
(§ 1170.18, subd. (a).) Proposition 47 would lead to absurd
results were we to construe it as allowing reduction to
misdemeanor shoplifting under the actual facts in the instant
case because respondent succeeded in entering Walmart and
committing the target offense of petty theft. Such a construction
would reward respondent for evading police detection and
attaining the objective of the conspiracy.
                 Construction of a Statute Vel Non
       When construing a voter initiative statute, “our ‘task is
simply to interpret and apply the initiative’s language so as to
effectuate the electorate’s intent.’ [Citation.]” (Robert L. v.
Superior Court (2003) 30 Cal.4th 894, 900-901.) “[W]e look first

agreed to assassinate the President, Vice President, and the
Secretary of State. They committed overt acts before they
entered the various buildings to commit the target crimes.




                                 11
to the language of the statute. ‘Absent ambiguity, we presume
that the voters intend the meaning apparent on the face of an
initiative measure [citation] and the court may not add to the
statute or rewrite it to conform to an assumed intent that is not
apparent in its language.’ [Citation.]” (People v. Jackson (1996)
13 Cal.4th 1164, 1255-1256; see also Gonzales, supra, 2 Cal.5th at
p. 868 [“‘If the language is unambiguous, there is no need for
further construction’”].)
       Sections 1170.18, subdivision (a) and 459.5 are not
ambiguous. They make clear that the trial court could recall
respondent’s felony sentence for conspiracy to commit petty theft
and resentence her to misdemeanor shoplifting only if her crime
would have been shoplifting had Proposition 47 been in effect at
the time of the offense. Section 459.5, subdivision (a) defines
“shoplifting” 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” $950. The statute
does not say that a conspiracy to commit shoplifting shall be
charged as simple shoplifting. Without such language, we cannot
construe section 459.5 as prohibiting the charging of a
conspiracy.4

      4
       The rule of lenity has no application here. “‘[T]hat rule
applies “only if two reasonable interpretations of the statute
stand in relative equipoise.” [Citation.]’ [Citations.]” (People v.
Soria (2010) 48 Cal.4th 58, 65.) “We may not rewrite the statute
to conform to an assumed intention that does not appear in its
language.” (Vasquez v. State of California (2008) 45 Cal.4th 243,
253.) It is not the function of the judiciary to be lenient with
wrongdoers. (Callanan v. United States, supra, 364 U.S. at p.
596.) The word “shoplifting” is a term of art and not to be



                                12
       In People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th
1030, 1034, we stated: “This court is loathe to construe a statute
which has the effect of ‘adding’ or ‘subtracting’ language.
[Citation.]” Thus, here we are loathe to add the following
italicized language to section 459.5, subdivision (b): “Any act of
shoplifting as defined in subdivision (a) or any conspiracy to
commit shoplifting shall be charged as shoplifting. No person
who is charged with shoplifting may also be charged with
conspiracy to commit shoplifting or with burglary or theft of the
same property.”
       What we said in People v. Pecci (1999) 72 Cal.App.4th 1500,
1504, applies equally to the instant case: “Traditional principles
of judicial restraint compel us to refrain from rewriting a statute.
[Citation.] This is simply not one of the ‘extreme cases’ where the
judiciary should intervene. [Citation.]”
       An extreme case would occur if a literal interpretation of
section 459.5 would lead to absurd results. (See City & County of
San Francisco v. Farrell (1982) 32 Cal.3d 47, 52 [“an initiative
measure should receive a practical construction, [and] its literal
language may be disregarded to avoid absurd results”].) It is not
absurd that the electorate would want to maintain conspiracy to
commit shoplifting as a “wobbler,” i.e., punishable in the court’s
discretion as a misdemeanor or felony, instead of requiring that it
be punishable as a misdemeanor in all cases.
       The courts have long recognized the enhanced dangers of a
conspiracy. Almost a hundred years ago, Division One of this
court remarked: “[A] group of evil minds planning and giving


considered in its colloquial sense. (Gonzales, supra, 2 Cal.5th at
p. 871, fn. 12.) It is an impermissible “stretch” to say the term
includes a conspiracy that is complete before entry into the store.



                                13
support to the commission of crime is more likely to be a menace
to society than where one individual alone sets out to violate the
law.” (People v. Welch (1928) 89 Cal.App. 18, 22.) “The theory
. . . is that collaborative criminal activities pose a greater
potential threat to the public than individual acts. ‘Criminal
liability for conspiracy, separate from and in addition to that
imposed for the substantive offense which the conspirators agree
to commit, has been justified by a ‘group danger’ rationale. The
division of labor inherent in group association is seen to
encourage the selection of more elaborate and ambitious goals
and to increase the likelihood that the scheme will be successful.
Moreover, the moral support of the group is seen as
strengthening the perseverance of each member of the
conspiracy, thereby acting to discourage any reevaluation of the
decision to commit the offense which a single offender might
undertake. And even if a single conspirator reconsiders and
contemplates stopping the wheels which have been set in motion
to attain the object of the conspiracy, a return to the status quo
will be much more difficult since it will entail persuasion of the
other conspirators. [Citations.]’ [Citations.]” (People v. Tatman
(1993) 20 Cal.App.4th 1, 8, quoting from People v. Zamora (1976)
18 Cal.3d 538, 555-556.)
         The instant case aptly demonstrates the enhanced dangers
of a conspiracy. Respondent was not stealing cosmetics for her
personal use. She was acting as part of an international
conspiracy to steal cosmetics and transport them to Latin
America, where they would be sold. There were no limits on her
incentive to steal. The more cosmetics she stole, the more money
she was guaranteed to receive. When she entered the Walmart
and Albertson’s stores, she was accompanied by two




                                14
coconspirators. They could steal considerably more than a single
person acting alone. The presence of three coconspirators
supporting each other decreased the chance that one of them
would get “cold feet” and not go through with the theft.
Moreover, one of them could act as a lookout to avoid detection by
security personnel, thus increasing the likelihood that their
criminal scheme would succeed.
                       Gonzales/Romanowski
       In refusing to follow Segura, the trial court concluded that
its rationale “cannot be squared with Gonzales and
Romanowski.” The court was referring to Gonzales, supra, 2
Cal.5th 858, and People v. Romanowski (2017) 2 Cal.5th 903
(Romanowski). The court found respondent’s “argument more
consistent with the language of Penal Code section 459.5 as that
statute has been recently interpreted by the California Supreme
Court” in these cases. The court opined that “Huerta seems more
in line [than Segura] with the reasoning employed in Gonzales
and Romanowski.” But these two Supreme Court cases are
distinguishable. Neither opinion discusses conspiracy. Nor do
they cite Segura or Huerta.
       The defendant in Gonzales was convicted of felony second
degree burglary. He entered a bank and cashed a forged, stolen
check payable to himself for less than $950. Our Supreme Court
held: “[T]he electorate . . . intended that the shoplifting statute
[section 459.5] apply to an entry to commit a nonlarcenous theft.
Thus, defendant’s act of entering a bank to cash a stolen check for
less than $950, traditionally regarded as a theft by false
pretenses rather than larceny, now constitutes shoplifting
under the statute.” (Gonzales, supra, 2 Cal.5th at p. 862.)




                                15
       In Gonzales the People argued “that, even if defendant
engaged in shoplifting, he is still not eligible for resentencing
because he also entered the bank intending to commit identity
theft. Thus, his felony burglary conviction could have been based
on his separate intent to commit that offense.” (Gonzales, supra,
2 Cal.5th at p. 876.) Defendant “counter[ed] that, even assuming
he entered the bank with an intent to commit identity theft,
section 459.5, subdivision (b) would have precluded a felony
burglary charge because his conduct also constituted shoplifting.”
(Ibid.) The Supreme Court agreed with defendant: “Section
459.5, subdivision (b) requires that any act of shoplifting ‘shall be
charged as shoplifting’ and no one charged with shoplifting ‘may
also be charged with burglary or theft of the same property.’
(Italics added.) A defendant must be charged only with
shoplifting when the statute applies. It expressly prohibits
alternate charging and ensures only misdemeanor treatment for
the underlying described conduct.” (Ibid., last italics added.) A
conspiracy to commit shoplifting is not included in “the
underlying . . . conduct” described in section 459.5. (Ibid.) “‘“The
punishable act, or the very crux, of a criminal conspiracy is
the evil or corrupt agreement [to commit a crime].”’ [Citation.]”
(People v. Homick (2012) 55 Cal.4th 816, 870.)
       In Romanowski the Supreme Court interpreted section
490.2, subdivision (a), “[t]he provision of Proposition 47 reducing
punishment for theft crimes.” (Romanowski, supra, 2 Cal.5th at
p. 907.) The statute provides, “Notwithstanding Section 487 or
any other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be




                                 16
punished as a misdemeanor . . . .” (§ 490.2, subd. (a).) The court
held that “theft of access card account information—an offense
that includes theft of credit and debit card information—is one of
the crimes eligible for reduced punishment.” (Romanowski,
supra, at pp. 905- 906.) The court reasoned, “Although theft of
access card information differs in some ways from other forms of
theft, Proposition 47 broadly reduced punishment for ‘obtaining
any property by theft’ where the value of the stolen information is
less than $950.” (Id. at p. 906, fn. omitted.) Respondent was not
punished for obtaining property by theft. She was punished for
conspiracy to commit petty theft.
                   Prosecutor’s Charging Function
       “[T]he district attorney of each county independently
exercises all the executive branch’s discretionary powers in the
initiation and conduct of criminal proceedings. [Citations.]”
(People v. Eubanks (1996) 14 Cal.4th 580, 589 (Eubanks).) “The
charging function is the sole province of the executive.” (People v.
Clancey (2013) 56 Cal.4th 562, 574.)
       If misread, our decision today could provide prosecutors an
opportunity to abuse the charging function. When two persons
with no criminal records commit an ordinary shoplifting, by
charging a conspiracy a district attorney could prosecute as a
felony what ought to be a misdemeanor.
       A prosecutor must keep in mind that, “[w]hile [he or she]
does have a duty of zealous advocacy, ‘both the accused and the
public have a legitimate expectation that his [or her] zeal . . . will
be born of objective and impartial consideration of each
individual case.’ [Citation.]” (Eubanks, supra, 14 Cal.4th at p.
590.) “‘The prosecutor speaks not solely for the victim, or the
police, or those who support them, but for all the People. That




                                 17
body of “The People” includes the defendant and his family and
those who care about him. It also includes the vast majority of
citizens who know nothing about a particular case, but who give
over to the prosecutor the authority to seek a just result in their
name.’ [Citation.] Thus the district attorney is expected to
exercise his or her discretionary functions in the interests of the
People at large . . . .’ [Citation.]” (Id. at pp. 589-590.)
       We presume that district attorneys will not abuse the
charging function entrusted to them. (See County of Yolo v. Joyce
(1909) 156 Cal. 429, 433 [“It is to be assumed that [a district
attorney], like all other public officials, will properly and
conscientiously discharge his duties”]; (People v. Goodspeed
(1972) 22 Cal.App.3d 690, 705, fn. 4 [“in the absence of any
showing to the contrary it must be presumed [a district attorney]
has performed official duty properly”]; People v. Superior Court
(Martin) (1979) 98 Cal.App.3d 515, 521.)
       Here, the Ventura County District Attorney did not abuse
his charging discretion by prosecuting respondent for felony
conspiracy to commit petty theft. Respondent is a recidivist thief.
Although she was only 33 years old when she pleaded guilty, she
admitted that she had served five prior separate prison terms
and had been convicted of a strike. She told a probation officer:
“She has lived her entire life stealing to pay her rent, buy food,
and take care of her sons when they were all together. She never
knew any other way to live.” According to the probation report,
“She indicated to detectives that she committe[d] these crimes for
the money despite allegedly having a good job with an
organization whose mission, ironically, was to offer felons
employment, training, and job skills, so they will no longer
victimize their community.”




                                18
       The conspiracy in which respondent was involved was not
an ordinary shoplifting scheme; it involved criminal teamwork.
She participated in a sophisticated international conspiracy to
steal cosmetics in the United States and sell them in Latin
America. The potential harm to the public from such a
conspiracy was far greater than the harm posed by ordinary
shoplifting.
                             Conclusion
       Proposition 47 is poorly drafted. The plethora of case law
concerning its construction is a testament to its vagueness. But,
there is no vagueness here.
       The late federal appellate court judge, Ruggero J. Aldisert,
treats with the theoretical problem presented here. He borrows
from Plowden and the 1574 case of Eyston v. Studd. He quotes
Lord Denning who relied upon Plowden: “A judge should ask
himself [or herself] the question: If the makers of the Act had
themselves come across this muck in the texture of it, how would
they have straightened it out? He [or she] must then do [what]
they would have done. A judge must not alter the material of
which it is woven but he [or she] can and should iron out the
creases.” (Aldisert, A Judge’s Advice: Justifying the Decision
(2011) pp. 221-222.) We have ironed out the theoretical crease by
not stretching the fabric of the law to its unraveling point.
                             Disposition
       The order granting respondent’s section 1170.18 petition is
reversed. The matter is remanded to the trial court with
directions to (1) vacate the order granting the petition, (2) enter a
new order denying the petition, and (3) reinstate the felony
conviction and sentence.




                                 19
      The trial court shall prepare a new Abstract of Judgment
showing two prior prison terms as well as respondent’s conviction
of and sentence for felony conspiracy to commit petty theft. The
court shall send a certified copy of the new Abstract of Judgment
to the Department of Corrections and Rehabilitation.
      CERTIFIED FOR PUBLICATION.



                                               YEGAN, J.

I concur:


            GILBERT, P. J




                               20
TANGEMAN, J.:
       I dissent. I would affirm the order granting respondent’s
petition to recall her felony sentence and resentence her to
misdemeanor shoplifting. Generally it is proper to charge felony
conspiracy even if the underlying conduct is a misdemeanor.
(People v. Mullins (2018) 19 Cal.App.5th 594, 611-612.) But this
general rule is “subject to an exception in the case law which
precludes the use of a conspiracy charge to elevate criminal
conduct to felony status where there appears an ‘affirmative
legislative intent’ to impose a lesser punishment or no
punishment at all.” (People v. Pangelina (1981) 117 Cal.App.3d
414, 420 [reversing judgment of conviction of conspiracy to
commit prostitution].) Proposition 47 evinces an affirmative
electoral intent to impose a lesser punishment for any conduct
that could be charged as shoplifting. (People v. Gonzales (2017) 2
Cal.5th 858, 876 (Gonzales) [“A defendant must be charged only
with shoplifting when the statute applies. It expressly prohibits
alternate charging and ensures only misdemeanor treatment for
the underlying described conduct”].)
       The Supreme Court has not yet decided whether the
ameliorative benefits of Penal Code1 sections 459.5 and 1170.18
apply to acts of shoplifting by two or more people acting together.
Two intermediate courts have reached opposite conclusions. In
People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), the court
concluded that conspiracy may not be charged where the
defendant enters a commercial establishment during regular
business hours with the intent to commit petty theft; while in



      All further undesignated statutory references are to the
      1


Penal Code.



                                 1
People v. Segura (2015) 239 Cal.App.4th 1282 (Segura), the court
concluded otherwise.
       The Supreme Court has disapproved Segura’s reasoning.
(Maj. opn. ante, at p. 7.) Huerta’s reasoning is sound. In Huerta,
the People argued that a defendant was ineligible for Proposition
47 relief because she “‘went in with another accomplice and they
did this together’ so ‘[i]t’s an uncharged conspiracy.’” (Huerta,
supra, 3 Cal.App.5th at p. 542.) The court rejected this argument
based on the language of section 459.5: “The People’s argument
raises the question, conspiracy to do what? They answer the
uncharged conspiracy was a conspiracy to commit larceny. They
argue intent to commit conspiracy is not shoplifting, and burglary
predicated on such a conspiracy may be charged as a felony even
after the electorate enacted Proposition 47. That may be true for
some forms of conspiracy. It is not true, however, for conspiracy
to commit larceny. If Huerta harbored the intent to conspire to
commit larceny, she necessarily harbored the intent to commit
larceny as well . . . [and] [i]f Huerta harbored the intent to
commit larceny, [section 459.5, subdivision (b)] directs the offense
‘shall be charged as shoplifting’ and further that ‘[n]o person who
is charged with shoplifting may also be charged with burglary or
theft of the same property.’ [Citation.]” (Id. at p. 545.)
       Huerta is consistent with Gonzales, supra, 2 Cal.5th 858.
In Gonzales, the Supreme Court interpreted section 459.5 to
include entry into a bank with intent to commit identity theft
because that entry also constitutes shoplifting. And although
Proposition 47 omits any reference to identity theft, “the focus of
the ballot pamphlet was on the value of the property, setting the
threshold for felony treatment at $950.” (Id. at p. 870.) Because
Gonzales engaged in conduct that constituted shoplifting under




                                 2
section 459.5, he could only be charged with misdemeanor
shoplifting. (Id. at p. 876.)
      The majority here adopts the flawed reasoning of Segura,
supra, 239 Cal.App.4th 1282, when it concludes that sections
459.5 and 1170.18, subdivision (a), “are not ambiguous” and do
“not say that a conspiracy to commit shoplifting shall be charged
as simple shoplifting.” (Maj. opn. ante, at p. 12.) Just as the
People argued in People v. Page (2017) 3 Cal.5th 1175, the
majority concludes that “[w]ithout such language, we cannot
construe section 459.5 as prohibiting the charging of a
conspiracy.” (Maj. opn. ante, at p. 12.) The Supreme Court
rejected exactly the same argument in Page, and it should be
rejected here. The Page court made clear that relief under
Proposition 47 is not limited to cases involving convictions under
statutes expressly mentioned in the initiative. (Page, at pp.
1184-1185.) “Nothing in the operative language of [section 490.2]
suggests an intent to restrict the universe of covered theft
offenses to those offenses that were expressly designated as
‘grand theft’ offenses before the passage of Proposition 47.” (Id.
at p. 1186.)2
       The majority concludes that felony treatment is justified
here because conspiracy is an inchoate crime and presents
“enhanced dangers” to the public. It thus concludes that the
electorate never intended to include conspiracy to shoplift within
the ameliorative provisions of Proposition 47. But these are
“policy decisions for the electorate to make.” (Gonzales, supra, 2


        The Segura court did not discuss section 459.5 and what
      2


effect it has on the prosecution’s discretion to “bypass”
Proposition 47 and charge defendants with conspiracy to commit
shoplifting.



                                 3
Cal.5th at p. 874.) In rejecting a similar argument that an
interpretation extending Proposition 47’s ameliorative benefits to
crimes of identity theft “leads to absurd results” because the
potential harm of identity theft “is far greater” than for “ordinary
shoplifting,” the Supreme Court in Gonzales said: “One might
question the premise of this argument. The degree of culpability
can reasonably be linked to the value of property stolen,
regardless of the technique employed. In each case, the thief has
a specific intent to steal. In any event, the culpability levels of
the various theft offenses are policy decisions for the electorate to
make. Its decision to treat various theft offenses similarly may
be debated but it is not absurd.” (Ibid.)
      That Martin committed conspiracy in the course of
shoplifting does not alter the fact that she committed shoplifting.
Section 459.5, subdivision (b), expressly curtails the prosecution’s
charging discretion when the conduct qualifies as shoplifting.
(Gonzales, supra, 2 Cal.5th at p. 876.) That subdivision barred
the People from charging Martin with conspiracy when her
underlying conduct constituted shoplifting. (Id. at pp. 862, 876-
877.)3
      This conclusion gives effect to the electorate’s stated
purposes when it enacted Proposition 47. “One of Proposition
47’s primary purposes 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 hypothetical advanced by the majority is inapposite.
         3


If Martin had been arrested and charged with conspiracy before
entering the store, she would not have committed the crime of
shoplifting. Whether Proposition 47 would apply to that
particular scenario is not before us.



                                  4
the initiative.” (Harris v. Superior Court (2016) 1 Cal.5th 984,
992; see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text
of Prop. 47, § 2, p. 70 (Voter Information Guide).) Sentencing
nonviolent offenders who engage in petty theft to prison is
inconsistent with this purpose.
       “[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.’ [Citation.]” (Gonzales, supra, 2 Cal.5th at p. 870.)
Martin lacks the prior convictions that would disqualify her from
misdemeanor treatment under Proposition 47.
       The “uncodified sections of Proposition 47 informed voters
that the act ‘shall be broadly construed to accomplish its
purposes,’ and that its provisions ‘shall be liberally construed to
effectuate its purposes.’ (Voter Information Guide, [supra,] text
of Prop. 47, §§ 15, 18, p. 74.)” (People v. Buycks (2018) 5 Cal.5th
857, 877-878.) Construing Proposition 47 broadly to include
conspiracy to shoplift is consistent with its purposes.
       When voters adopt a law, “their intent governs.” (People v.
Jones (1993) 5 Cal.4th 1142, 1146.) Courts lack the authority to
question the voters’ policy choices or contravene their directives.
(De La Torre v. Cashcall, Inc. (Aug. 13, 2018, S241434) __ Cal.5th
__ [2018 Cal. Lexis 5749]; see also Max Factor & Co. v. Kunsman
(1936) 5 Cal.2d 446, 455 [“it is no part of the duty of this court to
determine whether the policy embodied in the statute is wise or
unwise”].) The stated purposes and directives of Proposition 47
are contravened by the majority’s interpretation of its scope.
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43




                                  5
Cal.3d 1379, 1386 [court’s role is “to effectuate the purpose of the
law”].)
      Instead of applying a judicial resolution to the “enhanced
dangers” presented by conspiracies to shoplift, we should defer to
the Legislature or the electorate, whose efforts to resolve this
issue are already underway. (See pending Assem. Bill No. 1065
(2017-2018 Reg. Sess.) as amended Feb. 27, 2018 [creating a new
crime for “organized retail theft” involving two or more people
acting together to steal merchandise for resale]; pending
Reducing Crime and Keeping California Safe Act of 2018 (placed
on ballot July, 11, 2018) 2020 Bill Text CA v. 20 Initiative No. 17-
0044 [reforming theft laws “to restore accountability for serial
thieves and organized theft rings”].) Traditional principles of
judicial restraint would be well-served by allowing the
Legislature or electorate to shape the resolution to those concerns
expressed in the majority opinion.
      CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.




                                 6
                     Mark S. Borrell, Judge

               Superior Court County of Ventura

                ______________________________

     Gregory D. Totten, District Attorney, Michelle J. Contois,
Deputy District Attorney, for Plaintiff and Appellant.

     Todd W. Howeth, Public Defender, William M. Quest, Snr.
Deputy Public Defender, Cerise M. Fritsch, Deputy Public
Defender, for Defendant and Respondent.
