Filed 6/27/16 P. v. Anunson 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----


THE PEOPLE,                                                                                  C079221

                   Plaintiff and Respondent,                                      (Super. Ct. No. 11F2194)

         v.

KIRSTEN FAITH ANUNSON,

                   Defendant and Appellant.




         Defendant Kirsten Faith Anunson appeals from the trial court’s denial of her
petition for resentencing pursuant to Penal Code section 1170.18.1 She contends that her
second degree burglary conviction (§ 459) qualified for resentencing because her
criminal conduct constitutes the newly enacted crime of shoplifting (§ 459.5). The
People assert defendant was charged with burglary not only based on her intent to
commit larceny, but also based on her intent to commit identity theft in violation of
section 530.5, and that the crime she committed was not shoplifting. Defendant was



1   Undesignated statutory references are to the Penal Code.

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charged with burglary based on her intent to commit “larceny and any felony.” This is
the crime to which she pleaded no contest. Under these facts, we conclude defendant is
“[a] person 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.” (§ 1170.18.) We reverse.
                                   I. BACKGROUND
       Defendant was charged with second degree burglary (§ 459), forgery (§ 475, subd.
(c)), and identity theft (§ 530.5). She pleaded no contest to second degree burglary.
       The factual basis of defendant’s plea was taken from the police report, which was
summarized in the probation report as follows:
       “On 09/15/10, at approximately 1:52 PM, the U.S. Bank Burney Branch
Manager[] contacted the Shasta County Sheriff’s Office. The manager stated two checks
had been cashed at the Burney branch, belonging to victim Karl Wirth. The victim’s
checks were reportedly taken from his locked trailer near Tamarack Avenue in Burney.
The branch manager stated the defendant, Kirsten Faith Anunson, cashed check No. 836
on 9/04/10[] for $187.00. On the bottom of the check it stated it was for the purchase of
firewood. The transaction was accomplished via a U.S. Bank Automatic Teller Machine
(ATM).”
       In January 2012, the trial court placed defendant on three years’ formal probation.
In August 2014, after several probation violations and reinstatements, the trial court
terminated probation. Sentencing defendant on this and unrelated cases, the trial court
imposed a split term consisting of one year in county jail and three years eight months of
mandatory supervision.
       In March 2015, defendant subsequently filed a section 1170.18 petition for
resentencing on her second degree burglary conviction. In denying the petition, the trial
court found: “this particular second degree burglary at a bank, would be entering a
commercial establishment, a banking establishment, with the intent to commit more than

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type [sic] of larceny, which would include identity theft, which is not within the statute
itself.”
                                        II. DISCUSSION
           Defendant contends that her conduct in the burglary offense satisfies the elements
of the newly created crime of shoplifting (§ 459.5), a misdemeanor, entitling her to
redesignation of her conviction to that offense and to resentencing. For the reasons we
explain below, we agree.
           In November 2014, California voters approved Proposition 47, the Safe
Neighborhoods and Schools Act (the Act). The Act added section 1170.18, which
provides that 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 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.” (§ 1170.18, subd. (a); see Voter Information Guide, Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 14, pp. 73-74.)
           As pertinent to this case, the Act added section 459.5, which establishes the
offense of shoplifting, a misdemeanor, which 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).” (§ 459.5, subd. (a); see People
v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) This crime displaces the crime of
burglary for those thefts within the $950 amount specified in the statute. (§ 459.5, subd.
(a).) As relevant here, burglary is defined as: entry into a “building . . . with intent to
commit grand or petit larceny or any felony.” (§ 459.)
           Defendant notes that U.S. Bank is a commercial enterprise and the amount taken
was less than $950. She asserts that her conduct comes within the statutory definition of
theft by larceny, the felonious stealing, taking, carrying, leading, or driving away the

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property of another. (§ 484, subd. (a); see People v. Parson (2008) 44 Cal.4th 332, 354
[theft by false pretenses supports a burglary conviction].) From this, defendant concludes
her conduct satisfies the elements of section 459.5, entitling her to relief.
       The Attorney General argues that defendant intended to commit the crime of
identity theft, which is not one of the offenses subject to resentencing under section
1170.18. (See § 1170.18, subd. (a).) This argument comes from how section 1170.18
operates and the nature of burglary. As previously noted, a defendant is eligible for
section 1170.18 resentencing if his or her conviction would not be a felony had the Act
been in effect at the time of the offense. Burglary is entry into a premises with the intent
to commit another offense, either a larceny or some other felony. Thus, a single burglary
may be based on more than one felonious intent. “ ‘An entry may be made with intent to
commit two or more felonies, but that would constitute only one burglary.’ [Citation.]”
(People v. Failla (1966) 64 Cal.2d 560, 568.) Identity theft is a wobbler that was not
reduced to a misdemeanor by Proposition 47. (§§ 1170.18, subd. (a), 530.5.) The
question then becomes what the voters intended when a defendant has a burglary
conviction that was based on larceny, but the conviction could theoretically have been
supported by an intent to commit identity theft based on the same underlying facts.
       We begin by noting that the definition of larceny contained in the Penal Code is
expansive and encompasses the fraudulent presentation of a check belonging to someone
else. Larceny or theft is defined very broadly. (See § 490a [“Wherever any law or
statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or
statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted
therefor”].) Section 484, subdivision (a) defines theft to include “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. Thus, the People’s argument that the
crime defendant committed “was not a shoplifting offense within the meaning of section

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459.5” is incorrect. Defendant pleaded no contest to the intent to commit larceny, and
that admitted intent is broad enough to cover her conduct evidenced by the records of the
burglary count.
       The language of the Act likewise suggests that, as other courts have held in similar
circumstances, the admitted intent to commit larceny controls over any secondary intent
to commit identity theft. (See People v. Garrett (June 15, 2016, H041927) ___
Cal.App.4th __ [2016 Cal. App. Lexis 472][pp. 8-9].) Section 459.5, subdivision (b)
provides that: “No person who is charged with shoplifting may also be charged with
burglary or theft of the same property.” An identity theft conviction requires that a
person’s identifying information be used “for any unlawful purpose, including to obtain,
credit, goods, services, real property, or medical information without the consent of that
person.” (§ 530.5, subd. (a).) Thus, under these facts, both the larceny and the dismissed
charge of identity theft involved an effort to obtain the same property. Accordingly,
section 459.5, subdivision (b) requires this crime be treated as shoplifting and not
burglary. (See People v. Garrett, supra, [at pp. 8-9] [“[E]ven 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”].)
       In these circumstances, we conclude the fact that a dismissed identity theft offense
could have supported a secondary felony intent does not render defendant’sl conviction
ineligible for reduction under Proposition 47. Put differently, because defendant was
charged with and pleaded guilty to entering the bank “with the intent to commit larceny”
and no reference was made to any specific felony other than larceny, defendant was
entitled to be resentenced under section 459.5.




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                                  III. DISPOSITION
       The trial court’s order concluding defendant’s conviction for second degree
burglary is ineligible for resentencing is reversed and the matter remanded for
consideration of whether to resentence defendant under the remaining provisions of the
Act.


                                                    /S/

                                                 RENNER, J.



We concur:



/S/

RAYE, P. J.



/S/

NICHOLSON, J.




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