Filed 11/3/15 P. v. Garcia CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B261447
                                                                          (Super. Ct. No. 2014025693)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

CHRISTIAN ACOSTA GARCIA,

     Defendant and Appellant.



                   Christian Acosta Garcia appeals the denial of his petition to reduce his
conviction of second degree burglary (Pen. Code,1 §§ 459, 460) to a misdemeanor
"shoplifting" pursuant to section 459.5, which was enacted pursuant to Proposition
47. We agree that the trial court erred in refusing to reduce the conviction and
accordingly reverse.
                             FACTS AND PROCEDURAL HISTORY
                   Because appellant pled guilty prior to a preliminary hearing, the
relevant facts are derived from the probation report. On or about July 28, 2014,
Lane Magana's checkbook for his account at Chase Bank was lost or stolen. The
following day, appellant entered the bank and cashed one of Magana's checks,

         1 All further undesignated statutory references are to the Penal Code.
which had been made payable to appellant in the amount of $500. When appellant
was arrested a few weeks later, he had possession of another check from Magana's
account that Magana had made payable to a third party in the amount of $200. He
was also implicated in his cousin Richard Ruiz's unsuccessful attempts to cash
additional stolen and forged checks.
              Appellant was charged with second degree burglary, forgery (§ 470,
subd. (d)), receiving stolen property (§ 496, subd. (a)), and other crimes. He later
pled guilty to second degree burglary and receiving stolen property pursuant to a
plea agreement. He was placed on probation and ordered to serve 180 days in
county jail. The remaining charges were dismissed.
              On December 5, 2015, the People filed a notice of probation violation.
Three days later, appellant petitioned the court to reduce both of his convictions to
misdemeanors pursuant to section 1170.18, which was enacted as part of
Proposition 47. The court granted the petition as to the crime of receiving stolen
property, but declined to reduce the burglary to a misdemeanor. After reviewing
the probation report, the court stated, "It looks like the 459 in Count 2 has to do
with the use of a fraudulent check which, in my view, is not involved with Prop.
47." The court then added, "[b]ased on the summary of the event which was used
as a factual basis for the defendant's plea, [the burglary charged in] Count 2 was
entering a Chase Bank in Moorpark with a fraudulent check."
              When appellant's attorney asked for further clarification, the court
explained: "It's a burglary charge, it's not a theft charge so the amount is irrelevant.
. . . [I]t wasn't a burglary associated with a reclassification or a renumbering [of
sections] 666 or 459 situation. [¶] And it looks to me that, in terms of [the
receiving stolen property charged in] Count 3, it has to do with a $200 check and so
Count 3 would appropriately, in my view, be reclassified under Proposition 47.
And I'll make that order now." Appellant admitted the probation violation and
probation was reinstated.


                                           2
                                    DISCUSSION
              Appellant contends the court erred in declining to reclassify his felony
second degree burglary conviction as a misdemeanor "shoplifting" under section
459.5, which was enacted as part of Proposition 47. We agree.
              Under Proposition 47, certain drug and theft-related offenses that
were previously designated as felonies or "wobblers" are now punishable only as
misdemeanors. A defendant serving a felony sentence for a crime that is now a
misdemeanor under Proposition 47 may petition for recall of that sentence and
request resentencing pursuant to the statutes that were added or amended by the
proposition. (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.)
              Appellant was convicted of second degree burglary and receiving
stolen property, both of which were treated as felonies for purposes of sentencing.
The latter crime is now a misdemeanor under Proposition 47. Second degree
burglary, which is defined in relevant part as the entering of a building other than a
residence "with intent to commit grand theft or petit larceny or any felony," remains
punishable as either a misdemeanor or a felony. (§§ 459, 461, subd. (b).)
Proposition 47, however, also added the "new" crime of "shoplifting," which is
defined as "entering a commercial establishment with intent to commit larceny
while that establishment is open during regular business hours" and where the value
of the property taken or intended to be taken does not exceed $950. (§ 459.5, subd.
(a).) The crime of shoplifting, with certain exceptions not relevant here, is
punishable only as a misdemeanor. The new law also provides that any act of
shoplifting as defined in the statute "shall be charged as shoplifting" and that "[n]o
person who is charged with shoplifting may also be charged with burglary or theft
of the same property." (§ 459.5, subd. (b).)
              Count 2 of the information alleged that appellant committed second
degree burglary when he "unlawfully entered a commercial building . . . with the
intent to commit larceny and any felony." That is the crime to which appellant pled


                                           3
guilty. In declining to resentence appellant on this count, the court reasoned that he
was "entering a Chase Bank in Moorpark with a fraudulent check." According to
the People, we can thus infer the court found that appellant was not convicted of
entering the bank to commit larceny, but rather to commit identity theft (§ 530.5),
which remains punishable as a misdemeanor or a felony. (See, e.g., People v.
Walker (1969) 272 Cal.App.2d 252, 254.)
              Even if we could reasonably make such an inference, the record does
not support a finding that appellant pled guilty to an intent to commit identity theft.
He was not charged with that crime, nor was it ever referred to at any point in the
proceedings. Although he was separately charged with forgery, that charge was
dismissed pursuant to his plea agreement. In any event, under Proposition 47 a
forgery involving $950 or less is also now a misdemeanor. (§ 472, subd. (b).) The
crime thus cannot provide the basis for a second degree burglary conviction, which
requires the intent to commit a felony.
              Section 459.5 makes clear that any act defined as shoplifting must be
so charged, and that any person charged with that crime cannot be charged with
burglary of the same property. Because appellant was charged with and pled guilty
to entering the bank "with the intent to commit larceny" and no reference was made
to any specific felony other than larceny, appellant was entitled to be resentenced
under section 459.5.2
              The order denying appellant's petition to be resentenced under section
459.5 on his second degree burglary conviction is reversed.
              NOT TO BE PUBLISHED.


       2 The People do not assert any basis for the court to have concluded that
appellant was ineligible for resentencing under Proposition on the ground it "would
pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).)
Moreover, the fact that appellant was granted probation would dictate against such a
finding. Accordingly, remand for a public safety analysis under section 1170.18 is
unnecessary.

                                           4
                              PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                              5
                            Patricia M. Murphy, Judge
                        Superior Court County of Ventura
                       ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief
Deputy, Ashley Jones, Deputy Public Defender, for Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General,
Scott A. Taryle, Supervising Deputy Attorney General, John Yang, Deputy
Attorney General, for Plaintiff and Respondent.
