Filed 6/15/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


THE PEOPLE,                                       H041927
                                                  (Santa Cruz County
        Plaintiff and Respondent,                  Super. Ct. No. F26308)

        v.

RYAN JAMES GARRETT,

        Defendant and Appellant.


        Defendant Ryan James Garrett appeals from the denial of his petition for
resentencing under Proposition 47. In February 2014, defendant and another person
entered a convenience store with a stolen credit card and attempted to buy gift cards
valued at $50. Defendant pleaded no contest to commercial burglary under Penal Code
section 459.
        In December 2014, defendant petitioned for resentencing on the ground that
Proposition 47 made the offense a misdemeanor under Penal Code section 459.5
(shoplifting). The trial court denied the petition on the ground that defendant was not
eligible for resentencing because he had entered the convenience store with the intent to
commit felony identity theft under Penal Code section 530.5.
        We hold 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 under subdivision (a) of Penal Code section 459.5. Furthermore,
subdivision (b) of Penal Code section 459.5 provides that “[a]ny act of shoplifting as
defined in subdivision (a) shall be charged as shoplifting.” (Pen. Code, § 459.5,
subd. (b), italics added.) On these grounds, we conclude defendant is eligible for
resentencing under Proposition 47. Accordingly, we will reverse the trial court’s denial
of the petition.
                         I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense1
       Defendant and Emily Mattern drove a red BMW to a QuikStop convenience store
around 2 a.m. Police, who had an arrest warrant for Mattern, had been searching for the
car. When the police spotted the car, it was parked in front of the QuikStop while
defendant and Mattern were inside. A video camera in the store recorded their activities.
Police subsequently interviewed the store cashier as well. The evidence established the
following.
       Defendant and Mattern were browsing in the store when Mattern approached a
rack of gift cards, grabbed a number of cards off the rack, and approached the cashier.
Before Mattern could purchase the gift cards, police appeared outside the store. At that
point, Mattern abruptly turned around, walked away from the cashier, and discarded
multiple items in a trash can just before police entered the store. Defendant asked the
cashier if there was a back door through which they could exit, but the cashier said there
was no such door. The police then entered the store and arrested Mattern. In the trash
can, police found a wallet belonging to Julie Skelton and a credit card bearing her name.
The credit card had been removed from the wallet. Police subsequently interviewed
Skelton, who told them her wallet and other items had been stolen from her car.
       In the red BMW, police found a backpack and a cell phone belonging to
defendant. In the backpack, police found three canisters of pepper spray, a large pair of
metal bolt cutters, and a punch tool for breaking windows. On the cell phone, police



       1
           The statement of facts is based on the preliminary hearing transcript.

                                               2
found text messages discussing the sale of a $300 Macy’s gift card for cash or drugs. On
defendant’s person, police found a half-gram of heroin.
   B. Procedural Background
       On March 5, 2014, the prosecution charged defendant by information with six
counts: Count One—Commercial burglary (Pen. Code, § 459); Count Two—Receiving
stolen property (Pen. Code, § 496, subd. (a)); Count Three—Possession of heroin (Health
& Saf. Code, § 11350, subd. (a)); Count Four—Misdemeanor identity theft (Pen. Code, §
530.5, subd. (c)(1)); Count Five—Possession of burglary tools (Pen. Code, § 466); and
Count Six—Possession of tear gas by a felon (Pen. Code, § 22810, subd. (a)). Count One
alleged defendant had entered the QuikStop “with the intent to commit larceny and any
felony.”2 The information further alleged defendant had suffered a prior conviction for a
serious or violent felony. (Pen. Code, § 667, subds. (b)-(i).) On June 12, 2014, defendant
pleaded no contest to Count One (commercial burglary) and admitted the strike allegation
in exchange for 32 months in state prison and dismissal of the remaining counts.
       In December 2014, defendant petitioned the trial court for resentencing under
Proposition 47. In a sworn declaration supporting the petition, counsel for defendant
stated that the gift cards were worth approximately $50. In a written opposition to the
petition, the prosecution also stated the gift cards had a total value of $50. But the
prosecution argued, among other things, that defendant could not prove he and Mattern
had only intended to take $50 worth of merchandise when the police interrupted them.
       The trial court denied defendant’s petition on the ground that defendant was not
eligible for resentencing. The court assumed for purposes of its ruling that the value of
the gift cards was $50. But the court ruled that the intent to use a credit card to steal the


       2
         Although the complaint alleged defendant intended to commit larceny and any
felony, we note that courts commonly interpret allegations phrased in the conjunctive to
be alleged in the disjunctive language of the underlying statute. (See People v.
Moussabeck (2007) 157 Cal.App.4th 975, 981-982.)
                                              3
gift cards made the offense ineligible for resentencing. The court opined that if defendant
had entered the store with the intent to steal $50 worth of merchandise, such conduct
would have constituted an intent to commit petty theft, making the offense eligible for
resentencing. However, because defendant and Mattern intended to use a credit card to
purchase the gift cards, the court ruled that defendant had intended to commit felony
identity theft under Penal Code section 530.5, and not petty theft. Accordingly, the court
denied the petition on the ground that entering a store with the intent to commit felony
identity theft is not an offense eligible for resentencing under Proposition 47.
                                        II. DISCUSSION
       Defendant contends the trial court erred in denying his petition because he is
eligible for resentencing under Penal Code section 459.5, which defines shoplifting and
makes it a misdemeanor under Proposition 47. The Attorney General, adopting the trial
court’s reasoning, argues that substantial evidence shows defendant entered the store with
the intent to commit felony identity theft under Penal Code section 530.5, making him
ineligible for resentencing.
   A. Legal Principles
       In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods
and Schools Act (Act), reducing certain drug- and theft-related offenses to
misdemeanors. Among other things, the Act added Penal Code section 459.5 (Section
459.5), making the offense of “shoplifting” a misdemeanor: “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.” (Pen. Code, § 459.5, subd. (a).) Section 459.5 mandates that
shoplifting shall be punished as a misdemeanor except for persons having certain prior
convictions not at issue here. Subdivision (b) of Section 459.5 further provides: “Any
                                              4
act of 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.” (Pen. Code, § 459.5, subd. (b), italics added.)
       Proposition 47 also created a new resentencing scheme for persons serving felony
sentences for specified offenses made misdemeanors by the Act. (§ 1170.18, subd. (a).)
Under the resentencing scheme, a person currently serving a sentence for a felony
conviction may petition for recall if the person would have been guilty of a misdemeanor
had Proposition 47 been in effect at the time of the offense.
   B. Defendant is Eligible for Resentencing Under Penal Code Section 459.5
       Defendant pleaded no contest to Count One, which charged him with unlawfully
entering the QuikStop “with the intent to commit larceny and any felony” under Penal
Code section 459. He contends his offense now falls under Section 459.5 because he
entered the QuikStop with the intent to commit larceny, and the value of the property to
be taken was less than $950. The Attorney General contends the trial court properly
found defendant intended to commit felony identity theft and not larceny.3
       As noted above, the prosecution had initially charged defendant with misdemeanor
identity theft—a charge that was dismissed when defendant pleaded no contest to the
burglary charge. Nonetheless, we will assume, for the sake of argument, that the record
contains substantial evidence that defendant entered the QuikStop with the intent to
commit felony identity theft under Penal Code 530.5. A given act may constitute more
than one criminal offense. It follows that a person may enter a store with the intent to
commit more than one offense—e.g., with the intent to commit both identity theft and
larceny. Furthermore, Section 459.5 mandates that notwithstanding Penal Code section


       3
        The Supreme Court has granted review on two published opinions that
considered this issue under similar facts. (People v. Vargas (2016) formerly at 243
Cal.App.4th 1416, review granted March 30, 2016, S232673; People v. Gonzales (2015)
formerly at 242 Cal.App.4th 35, review granted February 17, 2016, S231171.)
                                             5
459, a person who enters a store “with intent to commit larceny” shall be punished as a
misdemeanant if the value of the property to be taken is not more than $950. (Pen. Code,
§ 459.5, subd. (a).) Subdivision (b) further provides that any act defined as shoplifting
“shall be charged as shoplifting” and may not be charged as burglary or theft of the same
property. (Pen. Code, § 459.5, subd. (b).) Thus, even assuming defendant intended to
commit felony identity theft, he could not have been charged with burglary under Penal
Code section 459 if the same act—entering a store with the intent to purchase
merchandise with a stolen credit card—also constituted shoplifting under Section 459.5.
Accordingly, the dispositive issue is whether that act fell within the definition of
“shoplifting” under Section 459.5.
       The parties do not dispute that defendant entered a commercial establishment
while it was open during regular business hours. Nor do the parties dispute that
defendant and Mattern did so with the intent to use a stolen credit card to purchase gift
cards. The question is whether defendant did so “with intent to commit larceny” within
the meaning of Section 459.5.
       This is a matter of statutory construction—specifically, the interpretation of the
term “larceny.” In construing a voter initiative, “we apply the same principles that
govern statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685 (Rizo).)
“[W]e begin with the text as the first and best indicator of intent.” (Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 321.) We first look “ ‘to the language of the
statute, giving the words their ordinary meaning.’ ” (Rizo, at p. 685.) And we construe
the statutory language “in the context of the statute as a whole and the overall statutory
scheme.” (Ibid.)
       The law of larceny constitutes a substantial jurisprudence. (See People v.
Williams (2013) 57 Cal.4th 776, 781-789 (Williams) [discussing the common law history
of larceny].) But our task is greatly simplified by Penal Code section 490a (Section
490a), which provides: “Wherever any law or statute of this state refers to or mentions
                                              6
larceny, embezzlement, or stealing, said law or statute shall hereafter be read and
interpreted as if the word ‘theft’ were substituted therefor.” (Pen. Code, § 490a.)
Applying this rule, we must interpret Section 459.5 as if it defined shoplifting to mean
“entering a commercial establishment with intent to commit theft.” The term “theft” is
defined by Penal Code section 484, as follows: “Every person who shall feloniously
steal, take, carry, lead, or drive away the personal property of another, or who shall
fraudulently appropriate property which has been entrusted to him or her, or who shall
knowingly and designedly, by any false or fraudulent representation or pretense, defraud
any other person of money, labor or real or personal property . . . is guilty of theft.” (Pen.
Code, § 484, subd. (a).)
         The plain language of Penal Code section 484 explicitly prohibits the taking of
property “by any false or fraudulent representation or pretense,” among other things.
Using another person’s credit card to purchase property without the card owner’s consent
is “theft” under this definition. By using a stolen credit card, a thief must falsely
represent that he or she is the proper owner of the credit card or has the consent of the
owner to use it. Such conduct constitutes “theft by false pretenses.” (Williams, supra,
57 Cal.4th at p. 788.) Furthermore, California law explicitly defines the unauthorized,
nonconsensual use of a credit card as a type of theft. (Pen. Code, §§ 484e, subd. (c),
484g.) We thus conclude defendant’s intended conduct constituted theft, and hence he
entered the QuikStop with the intent to commit “larceny” within the meaning of Section
459.5.
         The language in Williams that distinguishes “larceny” from “theft by false
pretenses” does not alter our analysis. In Williams, the defendant was convicted of
robbery for fraudulently using credit cards to buy gift cards at a department store. The
court considered whether this conduct constituted “the felonious taking of personal
property” as that phrase is used in Penal Code section 211 (robbery). First, the court held
that the “felonious taking” element of robbery requires a theft by larceny. (Williams,
                                              7
supra, 57 Cal.4th at p. 786.) Then, based on a detailed excursion into the common law of
larceny, the court concluded that the defendant’s conduct in that case did not constitute
larceny, but theft by false pretenses. (Id. at p. 788.) The court made clear that its
analysis hinged on the common law definition of larceny. The court explicitly rejected
the application of Section 490a because that section concerns the construction of the term
“larceny” in a statute. (Id. at p. 789.) Because the court was construing Penal code
section 211, which does not use the term “larceny” or any other term defined by Section
490a, the court considered Section 490a to be irrelevant.
       As the Williams court recognized, Section 490a does not effect a change in the
substantive law of larceny; rather, it provides a definition for use in statutory
construction. Our task here is to construe the term “larceny” as used in Section 459.5,
not to discern the substantive offense of larceny. Thus, the plain text of Section 490a
speaks directly to this task. Applying Section 490a, we conclude that shoplifting requires
an intent to commit theft, which is further defined by Penal Code section 484. This
includes theft by false pretenses, encompassing defendant’s conduct here.
       The Attorney General contends that defendant failed to show the value of the
property to be taken was not more than $950, as required by Section 459.5. We disagree.
Counsel filed a sworn declaration stating that the gift cards were worth approximately
$50. In its written filing opposing the petition, the prosecution stated the same. The
prosecution argued that defendant might have intended to steal some other unspecified
property valued at more than $950, but the prosecutor presented no evidence supporting
this assertion. The evidence established that Mattern was approaching the cashier with
the gift cards just before police arrived, suggesting that she was about to complete the
theft with only those items. While the trial court made no explicit factual finding on the
value of the gift cards, the court assumed they were valued at $50 for the purposes of its
ruling. On this record, we conclude defendant has met his burden to show the value of
the property to be stolen was not more than $950.
                                              8
       For these reasons, we hold that defendant is eligible for resentencing on his
conviction for commercial burglary because the use of a stolen credit card to purchase
property valued at less than $950 constitutes shoplifting under Section 459.5. We will
reverse the trial court’s denial of the petition and remand the matter for further
proceedings.
                                         III. DISPOSITION
       The order denying defendant’s petition for resentencing under Penal Code section
1170.18 is reversed. The matter is remanded for the trial court to determine whether
defendant would pose an unreasonable risk of danger to public safety under subdivision
(b) of Penal Code section 1170.18.



                                           _______________________________
                                           Márquez, J.



WE CONCUR:



_____________________________________
 Rushing, P. J.




_____________________________________
 Grover, J.




                                              9
Trial Court:                             Santa Cruz County
                                         Superior Court No.: F26308

Trial Judge:                             The Honorable John Salazar



Attorney for Defendant and Appellant     Edward Mahler
Ryan James Garrett:                      under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Senior Assistant Attorney General

                                         Donna M. Provenzano,
                                         Supervising Deputy Attorney General

                                         Huy T. Loung,
                                         Deputy Attorney General
