Filed 8/2/16 P. v. Delgado CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079467

         v.                                                                       (Super. Ct. No. 11F5625)

MINDY MARIE DELGADO,

                   Defendant and Appellant.


         Defendant Mindy Marie Delgado appeals from the trial court’s denial of her
petition for resentencing pursuant to Penal Code section 1170.18.1 She contends her
conviction for second degree burglary (§ 459) was eligible for resentencing because her
criminal activity constituted the newly enacted crime of shoplifting (§ 459.5). We
conclude defendant established eligibility to resentencing for her second degree burglary




1        Undesignated statutory references are to the Penal Code.


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conviction. Accordingly, we reverse the trial court’s order declining to find eligibility
and remand for additional proceedings.2
                                       BACKGROUND
          Since the police report was the factual basis for defendant’s no contest plea, we
take the facts of her crime from a summary of the police report found in the probation
report.
          On March 24, 2011, Sierra Central Credit Union in Redding notified Ronald
Eakins it had refused to honor a check for $350 issued from his account and tendered by
a Joseph Callejas because the signature did not match the one on file for Eakins. Eakins
reviewed his checks and found two were missing. He visited the bank where he learned
the second missing check, in the amount of $250, had been cashed by defendant. A
surveillance photograph showed defendant cashing the check.
          Defendant was charged with second degree burglary, forgery (§ 475, subd. (c)),
and identity theft (§ 530.5), along with two strike allegations. She pleaded no contest to
second degree burglary. The trial court suspended imposition of sentence and granted her
three years’ formal probation. After defendant subsequently admitted violating
probation, the trial court sentenced defendant to serve an eight-month state prison term,
to be served consecutive to a four-year term in an unrelated case.
          Defendant subsequently filed a section 1170.18 petition seeking resentencing on
her burglary conviction. The trial court denied the petition, finding the crime was
ineligible for resentencing.




2      In light of our conclusion and remand to the trial court, we do not need to decide
defendant’s claim that the trial court did not make an adequate record for meaningful
appellate review.


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                                        DISCUSSION
       Defendant contends her second degree burglary conviction is eligible for
resentencing because her criminal conduct constitutes the crime of shoplifting. The
Attorney General asserts defendant had an intent to commit identity theft, which
disqualifies her from resentencing. In the alternative, the Attorney General asks this
court to find the definition of larceny in section 459.5 should be constrained by the use of
the term “shoplifting” in defining that offense. We are not persuaded and decline to limit
the definition of larceny in section 459.5 to the common understanding of shoplifting.
We conclude defendant established eligibility to resentencing for her second degree
burglary conviction.
       The passage of Proposition 47 (as approved by voters, Gen. Elec. (Nov. 4, 2014,
eff. Nov. 5, 2014) created section 1170.18, which provides for any defendant “currently
serving a sentence for a conviction . . . of a felony or felonies who would have been
guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time
of the offense [to] petition for a recall of sentence before the trial court that entered
the judgment of conviction in his or her case to request resentencing . . .” under the
statutory framework as amended by the passage of Proposition 47. (§ 1170.18,
subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14,
pp. 73-74.)
       Proposition 47 added section 459.5, which establishes the offense of shoplifting, a
misdemeanor, 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).” (§ 459.5, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085,
1091.) Larceny or theft (§ 490) is defined very broadly. Section 490a replaced statutory
references to “larceny” with “theft.” Section 484, subdivision (a), defines theft to include



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“knowingly and designedly, by any false or fraudulent representation or pretense, defraud
any other person of money.” This definition is broad and encompasses fraudulent
presentation of a check belonging to someone else to obtain money.
       We ascertain the defendant’s criminal conduct from the record of conviction.
(See People v. Bradford (2014) 227 Cal.App.4th 1322, 1338 [as to Prop. 36 and
§ 1170.126, court must determine “petitioner’s eligibility for resentencing based on the
record of conviction”].) Since defendant stipulated to the police report as the factual
basis for her plea, the record includes the summary of the police report found in the
probation report. The complaint in her case is also part of the record of conviction.
(People v. Saez (2015) 237 Cal.App.4th 1177, 1196; People v. Henley (1999)
72 Cal.App.4th 555, 560.)
       The burglary count alleged defendant entered the bank “with the intent to commit
larceny and any felony,” but added no other factual allegations. The remaining counts
alleged other facts; the forgery count alleged defendant forged “check # 1674 in the
amount of $250.00,” and the identity theft count alleged defendant used the personal
identifying information of Ronald Eakins to obtain credit, goods, or services in his name
without his consent.
       The facts summarized in the police report show defendant forged Eakins’s name
on the check stolen from him in order to defraud the bank in the amount of $250.00.
       Here, there is no dispute the amount of the check did not exceed $950.00. Thus,
defendant’s act of passing a bad check qualifies as theft under section 484, subdivision
(a), and thus as shoplifting under section 459.5.
                                      DISPOSITION
       The trial court’s order concluding defendant’s conviction for second degree
burglary is ineligible for resentencing under Proposition 47 is reversed and the matter is




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remanded to the trial court for consideration of whether to resentence defendant under the
remaining provisions of Penal Code section 1170.18.



                                                             /s/
                                                HOCH, J.



We concur:



          /s/
HULL, Acting P. J.



         /s/
RENNER, J.




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