Filed 2/2/16 P. v. Williams CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063473

v.                                                                       (Super.Ct.No. INF063849)

BRANDON SHAUN WILLIAMS,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Charles Everett

Stafford, Jr., Judge. Affirmed.

         Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.

Taylor and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.




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                                      INTRODUCTION

       Defendant Brandon Shaun Williams appeals from the denial of his petition under

Penal Code section 1170.181 for reclassification of his 2009 convictions of second degree

commercial burglary (§ 459) and use of a stolen access card (§ 484g, subd. (a)) to

misdemeanors. Defendant contends his offenses were eligible for resentencing, and the

trial court erred in finding he posed a serious risk to the community under section

1170.18, subdivision (b). We will affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       In November 2009, defendant entered a plea of guilty to second degree

commercial burglary (§ 459) and use of a stolen access card (§ 484g, subd. (a)). The trial

court found a factual basis for the plea on the basis of defendant’s oral statement;

however, the reporter’s transcript of the plea hearing has not been made part of the record

on appeal. The trial court sentenced him to 16 months in prison to run consecutive to a

sentence he was serving in another case for first degree burglary.

       On December 15, 2014, defendant filed a petition under section 1170.18 to have

his conviction for commercial burglary reduced to misdemeanor shoplifting. (§ 459.5.)

At the hearing on defendant’s petition, his counsel argued that defendant “entered that

Wal-Mart to commit theft. Wal-Mart is a commercial establishment. He went in to steal

from Wal-Mart. The fact that he used a credit card instead of taking the items doesn’t



       1   All further statutory references are to the Penal Code.


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change the fact that he entered the building to commit larceny, a theft.” Counsel further

represented that the value of the goods stolen was less than $950.

       The trial court denied the petition. The trial court stated, “The court finds that he

is ineligible. He was convicted of second degree burglary that was—the sentence was

consecutive to a first degree burglary. [¶] And it appears that the defendant is ineligible

because he was convicted of second degree burglary, not shoplifting but second degree

burglary. And it would appear, based on the case that it went consecutive to, that he

poses a serious risk to the community and that would make him ineligible as well.”

                                       DISCUSSION

       Standard of Review

       When interpreting a voter initiative, “we apply the same principles that govern

statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to

the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We

construe the statutory language “in the context of the statute as a whole and the overall

statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the

voters’ intent, particularly the analyses and arguments contained in the official ballot

pamphlet.’” (Ibid.)

       Overview of Proposition 47 and Section 1170.18

       On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods

and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes

from felonies or wobblers to misdemeanors for qualified defendants and added, among


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other statutory provisions, section 1170.18. Section 1170.18 creates a process through

which persons previously convicted of crimes as felonies, which would be misdemeanors

under the new definitions in Proposition 47, may petition for resentencing. (See

generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically,

section 1170.18, subdivision (a), provides: “A person currently serving a sentence for a

conviction, whether by trial or plea, of a felony or felonies who would have been guilty

of a misdemeanor under [Proposition 47] . . . had [Proposition 47] been in effect at the

time of the offense may petition for a recall of sentence before the trial court that entered

the judgment of conviction in his or her case to request resentencing in accordance with

Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,

476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or

added by [Proposition 47].”

       Defendant’s Offense Was Not Shoplifting

       Defendant contends his burglary conviction (§ 459) was eligible for resentencing

as misdemeanor shoplifting (§ 459.5).

       Proposition 47 added section 459.5, which defines the offense of shoplifting:

“(a) 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). Any other entry into a

commercial establishment with intent to commit larceny is burglary. Shoplifting shall be

punished as a misdemeanor, [with exceptions not here relevant]. [¶] (b) Any act of


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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.”

       Under section 459.5, shoplifting is committed when a defendant enters a

commercial establishment during regular business hours “with intent to commit larceny.”

(§ 459.5, subd. (a).) The elements of the crime of larceny are that a person “(1) takes

possession (2) of personal property (3) owned or possessed by another, (4) by means of

trespass and (5) with intent to steal the property, and (6) carries the property away.”

(People v. Davis (1998) 19 Cal.4th 301, 305.) The People argue that the trial court

properly denied relief because defendant entered the store with the intent to commit the

crime of theft by false pretenses, not larceny, and theft by false pretenses is not a

trespassory taking.

       The case of People v. Williams (2013) 57 Cal.4th 776, 788-789, clarified that theft

by larceny and acquiring property by false pretenses are distinct and mutually exclusive

offenses. In that case, the defendant used payment cards re-encoded with another

person’s credit card information to buy Walmart gift cards and then used force against a

security guard who tried to detain him. The defendant appealed his ensuing robbery

conviction, and our Supreme Court reversed on the ground that the defendant had

acquired property through his false representation. The court explained, “Because a

‘felonious taking,’ as required in California’s robbery statute (§ 211), must be without the

consent of the property owner, or ‘against his will’ ([§ 211]), and Walmart consented to




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the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking,

and hence did not commit robbery.” (Id. at p. 788.)

       In People v. Curtin (1994) 22 Cal.App.4th 528, the court held that when the

defendant entered a bank, cashed a check made out to himself but drawn on the account

of another depositor without permission or authorization, the crime was that of obtaining

property by false pretenses, not that of larceny by trick. (Id. at p. 532.) The court

explained, “‘Although the crimes of larceny by trick . . . and obtaining property by false

pretenses are much alike, they are aimed at different criminal acquisition techniques.’”

(Id. at p. 531.) The court continued, “Defendant’s misrepresentation of himself as a

depositor . . . was certainly a trick or device. But he used it to acquire possession and

title to the money, not merely possession. The bank did not give defendant the money on

any understanding as to its limited use; rather, believing he was [the depositor], the bank

gave defendant the money to keep or use as he would.” (Id. at p. 532.)

       A defendant seeking relief under section 1170.18 “‘“has the burden of proof as to

each fact the existence or nonexistence of which is essential to the claim for relief or

defense he is asserting.”’” (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) Here,

defendant failed to establish that he entered the Walmart with the intent to commit

larceny rather than theft by false pretenses.




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       Determination of Risk to Community

       Defendant contends the trial court erred in finding he posed a serious risk to the

community under section 1170.18, subdivision (b). Because we have determined that

defendant’s burglary conviction did not qualify for resentencing under section 459.5,

defendant’s contention is moot.

       Resentencing on Conviction for Use of Stolen Access Card

       Defendant argues that the trial court erred in failing to resentence him to a

misdemeanor for his use of an access card conviction. (§ 484g, subd. (a).) Defendant’s

petition requested only that his second degree burglary conviction be reduced to a

misdemeanor. He did not argue in his points and authorities in support of his petition that

he should be resentenced for his conviction of use of a stolen access card, and he did not

raise the issue at the hearing on his petition. Defendant must file a petition in the trial

court seeking a determination whether his conviction under section 484g, subdivision (a),

is eligible for resentencing.

                                       DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  McKINSTER
                                                                                              J.
We concur:

RAMIREZ
                         P. J.
MILLER
                            J.


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