Filed 7/31/18
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SIX


THE PEOPLE,                                          2d Crim. No. B284408
                                                  (Super. Ct. No. 2016005604)
     Plaintiff and Respondent,                         (Ventura County)

v.

KARA TAYLOR BRAYTON,

     Defendant and Appellant.


       Defendant enters a department store and removes the price
tags from two items for sale worth slightly over $100. She then
tells store personnel she previously purchased the items and is
returning them for a refund. She uses a stolen credit card to
falsely identify herself. Defendant eventually pleads guilty to
identity theft, a felony.
       We conclude defendant is eligible for relief under
Proposition 47.
       Kara Taylor Brayton appeals an order denying her
“motion” for resentencing under Proposition 47, the Safe
Neighborhoods and Schools Act. (Pen. Code, § 1170.18.)1 She
previously pled guilty to identity theft (§ 530.5, subd. (a)), a

        1   All statutory references are to the Penal Code.
felony. In her motion for Proposition 47 relief, Brayton claims
her “conduct” in committing that identity theft offense met “the
elements of shoplifting” under Proposition 47 and her conviction
should be reduced to a misdemeanor. We agree, reverse and
remand.
                               FACTS
       On February 5, 2016, Brayton entered a Kohl’s store in
Simi Valley. She took a watch from the jewelry department and
removed the security tag. She also “removed a bra from a
hang[e]r and balled it up in her arm.”
       Brayton then went to the store’s customer service
department to falsely claim that she had previously purchased
these items and was seeking a store credit in the amount of
$107.07. To obtain this credit, Brayton presented a California
driver’s license which belonged to Ambar Lechuga. Someone had
previously stolen Lechuga’s license.
       Brayton was detained and questioned by two of the store’s
“loss prevention employees.” During questioning, Brayton was
unable to spell Lechuga’s name or provide the year Lechuga was
born.
       One of the store’s security employees called the police.
Brayton “fled from the store.” When contacted by police, Brayton
said she “did something wrong and did not have an explanation
as to why she tried to shoplift.”
       In the felony information, the People alleged Brayton
committed “the crime of IDENTITY THEFT-OBTAIN CREDIT
WITH OTHER’S IDENTIFICATION, in violation of Penal Code
530.5(a), a Felony” (count 1), and petty theft by taking Kohl’s
property, a misdemeanor (§ 484, subd. (a)) (count 2).
       Brayton pled guilty to both counts and admitted she “did
what is alleged in [the information].”


                               2
       On May 18, 2017, Brayton filed a motion to reduce count 1
to a misdemeanor pursuant to Proposition 47. She relied on
People v. Gonzales (2017) 2 Cal.5th 858 as authority for the
motion. She claimed that under Gonzales she “can only be
charged and sentenced as a misdemeanant for her shoplifting
conduct.”
       The People opposed the motion, claiming “[v]iolations of
section 530.5(a) are not eligible for reduction under Proposition
47.”
       The trial court denied the motion. It agreed with the
People’s position that Brayton’s conviction was not an eligible
crime for Proposition 47 resentencing. The court said, “I don’t
think Gonzales applies.”
                             DISCUSSION
         Eligibility for Resentencing Under Proposition 47
       Proposition 47 reduces “penalties for certain theft and drug
offenses by amending existing statutes.” (People v. Gonzales,
supra, 2 Cal.5th at p. 863.) Its goal 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.’” (Id. at p. 870.) “Section 1170.18 now
permits a defendant serving a sentence for one of the enumerated
theft or drug offenses to petition for resentencing under the new,
more lenient, provisions.” (Id. at p. 863.) If the felony offense
committed “by an eligible defendant would have been a
misdemeanor under [Proposition 47], resentencing is required
unless, ‘the court, in its discretion, determines that resentencing
the petitioner would pose an unreasonable risk of danger to
public safety.’” (Ibid.)
       Proposition 47 added a new misdemeanor shoplifting crime.
(People v. Gonzales, supra, 2 Cal.5th at p. 863.) If a defendant’s


                                3
conduct in committing the prior felony falls within the definition
of this new crime, he or she may be entitled to resentencing relief.
The new provision, section 459.5, provides that “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).” In Gonzales, our Supreme Court held that a “defendant’s
act of entering a bank to cash a stolen check for less than $950,
traditionally regarded as a theft by false pretenses . . . , now
constitutes shoplifting under [Proposition 47].” (Id. at p. 862.)
That consequently allows a defendant to “petition for
misdemeanor resentencing.” (Ibid.)
       Gonzales rejected the People’s claim that if a defendant’s
act could be considered shoplifting under Proposition 47, the
defendant could lose eligibility for resentencing if that act also
could be charged under another Penal Code provision. It said
under Proposition 47, “[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.” (People v. Gonzales, supra, 2
Cal.5th at p. 876.)
       The court also rejected the claim that for consumer
protection, identity theft crimes fall outside the scope of
Proposition 47. In People v. Romanowski (2017) 2 Cal.5th 903,
913, it said there is no “indication that voters implicitly sought to
restrict Proposition 47’s scope based on unstated expectations
about consumer protection.”
       In People v. Garrett (2016) 248 Cal.App.4th 82, 84, the trial
court denied a Proposition 47 petition and found the “defendant
was not eligible for resentencing because he had entered the


                                 4
convenience store with the intent to commit felony identity theft
under Penal Code section 530.5.”
       The Court of Appeal reversed the denial of that petition. It
held that “entering a commercial establishment with the intent to
use a stolen credit card to purchase property valued at no more
than $950 constitutes shoplifting,” a misdemeanor (§ 459.5),
eligible for Proposition 47 resentencing. (People v. Garrett, supra,
248 Cal.App.4th at p. 84.) It said, “[T]he dispositive issue is
whether [the defendant’s] act fell within the definition of
‘shoplifting’ under Section 459.5.” (Id. at p. 88, italics added.)
“[W]e must interpret Section 459.5 as if it defined shoplifting to
mean ‘entering a commercial establishment with intent to
commit theft.” (Ibid.) It noted that under section 484 the
definition of theft includes taking property of another “‘by any
false or fraudulent representation or pretense.’” (Id. at p. 89.)
The court said, “Using another person’s credit card to purchase
property without the card owner’s consent is ‘theft’ under this
definition.” (Ibid.)
       In People v. Jimenez (2018) 22 Cal.App.5th 1282, review
granted July 25, 2018, S249397, a defendant entered a
commercial establishment to cash stolen checks valued at less
than $950. We held a defendant convicted of identity theft under
section 530.5, subdivision (a) was eligible for Proposition 47
relief. (See also People v. Hoffman (2015) 241 Cal.App.4th 1304.)
       Here the facts of Brayton’s identity theft crime are similar
to Gonzales, Garrett and Jimenez. Brayton used a stolen driver’s
license belonging to another person to obtain a $107.07 store
credit. She obtained the credit by the false representation that
she was the person named in that driver’s license. In Gonzales,
entering a bank to cash a stolen check fell within the purview of
the resentencing provision. In Garrett, using another person’s


                                 5
credit card to purchase property constituted misdemeanor
shoplifting under Proposition 47. Similarly, here it was Brayton’s
use of another person’s driver’s license that allowed her to obtain
the credit.
       The People claim the facts here and those of Gonzales and
Garrett are not identical. But that is a distinction without a
difference in result. Notwithstanding some factual differences,
Gonzales, Garrett and the instant case all fall within Proposition
47’s broad definition of shoplifting. The trial court erred in ruling
that Brayton’s conviction fell outside the scope of Proposition 47.
       The People correctly note that in ruling on Brayton’s
motion, the trial court did not make any “determination as to the
amount of the loss.” Consequently, a remand is required.
                           DISPOSITION
       The order denying the Proposition 47 motion is reversed.
The matter is remanded to the trial court for further proceedings
on that motion.
       CERTIFIED FOR PUBLICATION.




                                     GILBERT, P. J.
We concur:



             PERREN, J.



             TANGEMAN, J.




                                 6
                  Patricia M. Murphy, Judge

               Superior Court County of Ventura

                ______________________________



      Todd W. Howeth, Public Defender, William Quest, Senior
Deputy Public Defender, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Susan Sullivan Pithey, Supervising Deputy
Attorney General, Michael J. Wise, Deputy Attorney General, for
Plaintiff and Respondent.




                               7
