People v. Hernandez

251 Cal. Rptr. 3d 129, 38 Cal. App. 5th 260

Opinions

RAPHAEL J.

*131*263In 1995, defendant and appellant Hermando Antonio-Vega Hernandez pled guilty to burglary in violation of Penal Code section 459¹ on facts that included his entering a convenience store and stealing $18 of beer. He was sentenced to two years in prison.

When the voters passed Proposition 47 in 2014, they enacted section 459.5, which defines the new offense of shoplifting as any theft of property valued at $950 or less from a commercial establishment during business hours and which requires that any such offense be charged as misdemeanor shoplifting, not felony burglary. Proposition 47 also allows defendants to file petitions to recharacterize prior felony convictions that would have been misdemeanors under the law as changed by the initiative. In 2017, relying on that provision, defendant filed a petition seeking to have his felony burglary conviction designated as misdemeanor shoplifting in violation of section 459.5. The trial court denied the petition, apparently because, based on police reports in the trial court record, it found defendant entered the store with the intent to commit robbery in violation of section 211, rather than merely with the intent to commit a low-value theft.

We reverse. After Proposition 47, an offense is shoplifting, not burglary, if it involves "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)." Further, no one "who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subds. (a) & (b).)

The People still may obtain a felony conviction for robbery under section 211 where a defendant has actually used force or fear to take property, even if worth $950 or less. But, here, the robbery charge was dismissed at the *264time of defendant's guilty plea. Defendant's conviction was for burglary based on an entry into the store with intent to commit some offense that was not specified at the time of the plea. That intended offense indisputably was at least taking the beer, that is, shoplifting. The People wished to prove to the trial court that the defendant also entered with the intent to use force or fear to take that beer, thus intending a robbery. The People argue, and the trial court accepted, that a defendant can be convicted of burglary predicated on entry with intent to commit robbery, even if his objective is to take the same property he shoplifted. We disagree. Under the plain language of section 459.5 and our Supreme Court's decision in People v. Gonzales (2017) 2 Cal.5th 858, 875-876, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ), defendant cannot now be charged with burglary " 'of the same property' " (§ 459.5, subd. (b)), so defendant's felony burglary conviction must be redesignated as misdemeanor shoplifting whether or not he entered with the intent to use force or fear to gain possession of the beer.

I. FACTS

On October 2, 1995, defendant entered a convenience store and took $18 worth of beer without paying. According to a police report, as he left, he held up a metal pipe and said to the clerk, " 'If you follow, I will fuck you up.' "

*132On October 4, 1995, defendant was charged with robbery under section 211; (count 1) and burglary under section 459 (count 2). An amended felony complaint, filed October 19, 1995, further alleged in relation to count 1 that he had personally used a deadly weapon in committing the robbery. On October 20, 1995, however, defendant pled guilty to second degree burglary, and the court dismissed the robbery charge and enhancement allegation. In articulating a factual basis for the plea, neither the defendant nor the People explained what specific offense defendant intended when he entered the store. The trial court sentenced defendant to two years in prison.

On April 14, 2017, following the passage of Proposition 47, defendant filed a form petition under section 1170.18, subdivision (f), to recharacterize his felony burglary conviction as misdemeanor shoplifting. He alleged that the value of the property involved did not exceed $950. The prosecutor filed an opposition arguing that defendant had failed to meet his burden of establishing his eligibility because of unknown facts about the victim and the value of the property. On July 6, 2017, the trial court ordered that copies of certain documents be given to defendant's counsel, if available, specifically, the "arrest declaration; crime report; complaint/Information; probation report; plea form; abstract and preliminary hearing transcript."

On August 24, 2017, the trial court denied defendant's petition. Relying on facts recited in police reports, the trial court found that defendant's intent *265upon entering the store was "to commit the robbery that was dismissed," that is, "to take the property, no matter what the value of that property is, and I am going to do it by force and fear if you try to stop it."² The trial court concluded that this "disqualifies" defendant from relief under Proposition 47.

II. DISCUSSION

Section 459.5 defines the crime of misdemeanor shoplifting and states that any act of shoplifting "shall be charged as shoplifting," and no person so charged "may also be charged with burglary or theft of the same property." Defendant argues that pursuant to the language of section 459.5 and our Supreme Court's decision in Gonzales, supra , 2 Cal.5th at page 876, 216 Cal.Rptr.3d 285, 392 P.3d 437, the People could not now charge him with burglary of the $18 of beer, so his burglary conviction qualifies for designation as a misdemeanor under Proposition 47. We agree.

California voters approved Proposition 47 on November 4, 2014, reducing penalties for certain theft and drug offenses. ( People v. Bush (2016) 245 Cal.App.4th 992, 1000, 200 Cal.Rptr.3d 190.) Not only were the new penalties applicable prospectively, but, under section 1170.18, a defendant then serving a sentence for one of certain enumerated theft or drug offenses could petition for resentencing under the new, more lenient provisions. (§ 1170.18, subd. (b).) Further, and as applicable here, a person who has already completed a felony sentence may petition to have his conviction designated a misdemeanor. (§ 1170.18, subd. (f).) A petitioner qualifies for relief if he "would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense." (Ibid. ) If that is the case, the court "shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).)

*133Proposition 47 created a new misdemeanor crime called shoplifting by adding section 459.5. The statute defines shoplifting as follows: "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)." (§ 459.5, subd. (a).) If the taking of the property meets the definition of shoplifting, it must be charged as such: "Any 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." (§ 459.5, subd. (b).) Under the shoplifting statute, felony burglary *266still is available for an entry to commit a theft outside of business hours, or of a large value of property, as "[a]ny other entry into a commercial establishment with intent to commit larceny is burglary." ( § 459, subd. (a).)

Our Supreme Court has held that a Proposition 47 petition to reclassify a conviction as a misdemeanor does not provide an opportunity for the People to withdraw from a plea agreement and pursue dismissed charges. ( Harris v. Superior Court (2016) 1 Cal.5th 984, 987, 209 Cal.Rptr.3d 584, 383 P.3d 648.) In the Supreme Court case, the defendant had been charged with robbery, but the charge was dismissed when he pled guilty to grand theft from the person of another (§ 487, subd. (c)). ( Harris , supra , at pp. 987-988, 209 Cal.Rptr.3d 584, 383 P.3d 648.) Relying on the intent behind Proposition 47, the Court held that that the People could not oppose a resentencing petition by withdrawing from a plea agreement. ( Harris , supra , at pp. 991-992, 209 Cal.Rptr.3d 584, 383 P.3d 648.) In this case, then, the People cannot revive the robbery charge. Our focus must be on defendant's burglary conviction, and whether it must be recharacterized as misdemeanor shoplifting.

We believe the language of the shoplifting statute requires redesignation of defendant's offense as a misdemeanor. First, defendant's offense does qualify as shoplifting, now 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).) Defendant pled guilty to entering the convenience store during regular business hours with intent to commit a crime, and he stole beer worth $18. As a result, after Proposition 47, the People would have been required to charge him with shoplifting. (§ 459.5, subd. (b) ["Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting"].) But could they also charge him with burglary predicated on the intent to commit robbery? We think the answer is no.

The new shoplifting statute directs 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).) As the Supreme Court held, "the phrase 'the same property' confirms that multiple burglary charges may not be based on entry with intent to commit different forms of theft offenses if the property intended to be stolen is the same property at issue in the shoplifting charge." ( Gonzales , supra , 2 Cal.5th at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Robbery is a "theft offense[ ]," as the Supreme Court used that term in Gonzales. (See People v. Turner (1990) 50 Cal.3d 668, 692, 268 Cal.Rptr. 706, 789 P.2d 887 [" 'robbery was the only available theft offense' "];

*134People v. Ramkeesoon (1985) 39 Cal.3d 346, 352, 216 Cal.Rptr. 455, 702 P.2d 613 [same language].) Indeed, any robbery is also a theft: "Theft in any degree is a lesser included offense to *267robbery, since all of its elements are included in robbery. The difference is that robbery includes the added element of force or fear." ( People v. Burns (2009) 172 Cal.App.4th 1251, 1256, 92 Cal.Rptr.3d 51.) Since the statute precludes charging a defendant for burglary of the same property he has shoplifted, it follows the People cannot charge burglary based on entry with intent to commit a robbery targeting the same property. ( Gonzales , supra , at p. 877, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Any charge of a burglary directed at the same property as the shoplifting is barred.³ The fact that robbery involves an additional element does not change the statutory directive.

Our analysis tracks that of the Supreme Court in Gonzales. In Gonzales , a defendant had been charged with two felonies-forgery and second-degree burglary-where each involved the same property: forged $125 checks that he attempted to cash at a bank. ( Gonzales , supra , 2 Cal.5th at p. 862, 216 Cal.Rptr.3d 285, 392 P.3d 437.) The defendant had pled guilty to the burglary charge and the court had dismissed the forgery charge. ( Ibid. ) The Supreme Court rejected the prosecution's claim that the defendant was "not eligible for resentencing because he also entered the bank intending to commit identity theft." ( Id. at p. 876, 216 Cal.Rptr.3d 285, 392 P.3d 437.) It instead agreed with the defendant's position that "even assuming he entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting." ( Ibid. ) Thus, "the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950." ( Id. at pp. 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437.)

In both Gonzales and this case, the defendant had pled guilty to burglary in exchange for the prosecution's dismissal of another charge. In both cases, the defendant's burglary indisputably satisfied the elements of misdemeanor shoplifting, because the defendant entered the building with the intent to commit a larceny of property worth less than $950. In both cases, the People argued that the defendant's intent at the time of his entry into the commercial establishment was not merely to commit a theft, but also to commit a different felony also directed at taking the same property. In Gonzales , the Supreme Court held that the shoplifting statute precluded a burglary charge based on intent to commit identity theft, even though identity theft involves additional elements. ( Gonzales, supra , 2 Cal.5th at pp. 876-877, 216 Cal.Rptr.3d 285, 392 P.3d 437.) Here, we must decide whether the shoplifting statute precluded a burglary charge based *268on intent to commit robbery, even though robbery involves the additional element of the use of force or fear.

Like robbery, identity theft involves conduct beyond the simple theft of the targeted property. "Every person who *135willfully obtains personal identifying information ... of another person, and uses that information ... to obtain, or attempt to obtain ... goods ... is guilty of a public offense" punishable as a felony. (§ 530.5.) And like the robbery statute, the identity theft statute reflects important interests beyond the property owner's interest in maintaining possession of the targeted property. The identity theft statute punishes the willful use of another's personal identifying information. ( People v. Johnson (2012) 209 Cal.App.4th 800, 818, 147 Cal.Rptr.3d 391.) In Gonzales , the Supreme Court nevertheless focused on the theft of the targeted property, not the use of personally identifying information, in concluding that burglary predicated on identity theft must be treated as shoplifting where the offender used the personal information to steal personal property valued at $950 or less. We conclude the same reasoning applies to a burglary charge based on intent to commit robbery. Though robbery punishes the use of force or fear in carrying out a theft, the new shoplifting statute directs that we must focus on whether the intended robbery targeted the same property, and if it does, the defendant cannot be charged with burglary based on the intent to commit robbery.

Our conclusion also finds support in People v. Huerta (2016) 3 Cal.App.5th 539, 207 Cal.Rptr.3d 637. In Huerta , the People argued that the defendant "did not act 'with the sole intent to commit larceny under $950. Rather, she entered the department store in concert with [an accomplice] with the intent to commit the crime of conspiracy therein.' " ( Id. at p. 544, 207 Cal.Rptr.3d 637.) On that basis, the People contended the defendant was ineligible for redesignation of her commercial burglary conviction as shoplifting. ( Id. at pp. 544-545, 207 Cal.Rptr.3d 637.) The Court of Appeal was unpersuaded, finding that the "uncharged conspiracy" was "directed at the theft of the same bottles of perfume as [the defendant's] intent to commit larceny." ( Id. at p. 545.) A burglary predicated on theft "of the same property"-even if framed as encompassing an intent to conspire to commit larceny "of the same property"-was precluded under section 459.5, so the defendant qualified to have her burglary conviction redesignated as misdemeanor shoplifting. ( Huerta , supra , at p. 545, 207 Cal.Rptr.3d 637.) Similarly, the alleged robbery here was directed at taking the same $18 of beer that was the object of defendant's intended larceny. It follows that prosecutors could not have charged defendant with burglary predicated on robbery had Proposition 47 been in effect at the time of his offense, so his conviction must be designated as misdemeanor shoplifting.

Our holding does not mean a defendant who committed shoplifting can never be charged with a more serious offense in addition to shoplifting. As *269the Supreme Court wrote in Gonzalez , "[a] felony burglary charge could legitimately lie if there was proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit." ( Gonzales , supra , 2 Cal.5th at p. 877, 216 Cal.Rptr.3d 285, 392 P.3d 437.) So, the statute permits a burglary charge where a defendant enters a store with the intent to commit a felony based on something other than taking the same property shoplifted, such as an entry with the intent to commit an assault of a person. Similarly, the statute permits a burglary charge predicated on the intent to take different, higher-value property than the property obtained by shoplifting. That is, entering a commercial establishment with intent to steal both a case of beer and a bottle of Pappy Van Winkle Family Reserve 23 Year bourbon would support both a shoplifting charge (for the *136beer) and a burglary charge (for the very expensive bourbon). (See United States v. Takhalov (11th Cir. 2016) 827 F.3d 1307, 1313, fn. 5 [" 'Pappy's' ... is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it"].) In addition, if the defendant in fact committed a robbery, nothing in section 459.5 precludes the prosecution from charging and proving the robbery directly, rather than pursuing a burglary charge based on entry with intent to commit that crime. If force or fear was actually used in procuring the property, the prosecution may pursue both shoplifting charge and a robbery charge.⁴

We note that adopting the People's position here would create a strained and unnecessary gloss on the text of section 459.5. Under the People's view, a burglary charge directed at the same property taken in the shoplifting would be impermissible if the defendant's intent upon entry was to commit only a simple theft, but would be permissible in circumstances where the intent was to commit a more serious offense, even if directed at the same property. The view is strained because the statute precludes a charge of burglary "of the same property" without hinting that some such burglary charges are permissible. (§ 459.5, subd. (b).) And the view is unnecessary because if a greater offense such as robbery actually occurred, the prosecution can charge the robbery directly, rather than charging a burglary.

*270Further, the unique nature of burglary provides a rationale for Proposition 47's preclusion of it, but not other felony charges, when low-value property is taken. A burglary charge is based on what the defendant intended at the time of entering the building, not on what actually happened inside. Thus, even if the beer in this case actually was taken by force or fear, as the People claim here, it is conceivable that at the time of entry the defendant simply intended to grab the beer and slip out un-noticed. Conversely, as a logical matter, a defendant could intend a robbery at the time of entry but end up simply getting away with a theft. The shoplifting crime enacted by Proposition 47 makes any trial focus on what actually happened when low-value property was taken and eliminates the dimension of burglary that focuses on intent at the moment of entry.⁵

*137We hold that, as a matter of law, burglary would not have been available as a charge under these circumstances if Proposition 47 had been in effect at the time of the offense, so defendant was entitled to have his burglary conviction redesignated as a misdemeanor.

III. DISPOSITION

The trial court's order denying defendant's petition is reversed and the matter is remanded with instructions to enter a new order granting the petition.

I concur:

SLOUGH, J.

1 Subsequent statutory references are to the Penal Code.

2 The police reports on which the trial court relied do not appear in the record. This omission, however, is not material to our discussion here.

3 Consistent with this reading of section 459.5, the Voter Information Guide informed the electorate that passed Proposition 47 of the blanket preclusion of burglary charges involving the shoplifted property: " 'Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary.' " (Gonzales , supra , 2 Cal. 5th at pp. 869-870, 216 Cal.Rptr.3d 285, 392 P.3d 437.)

4 Defendant does not contest this point. People v. Soto (2018) 23 Cal.App.5th 813, 233 Cal.Rptr.3d 515, held that Proposition 47 eligibility does not extend to a "pure 'theft-plus' offense, i.e., one that is not identified as grand theft and requires additional necessary elements beyond the theft itself." (Soto , supra , at p. 822, 233 Cal.Rptr.3d 515 [involving conviction under § 368, subd. (d) (theft from an elder) ].) But Soto did not involve a burglary charge or section 459.5; rather, it considered what crimes fit within the scope of the "petty theft" provision enacted as section 490.2, in light of "Proposition 47's objective to reduce sentences for nonviolent crimes while shifting spending toward more serious offenses." (Soto , supra , at p. 823, 233 Cal.Rptr.3d 515.) Soto 's reasoning supports the prosecution's ability to charge a robbery in circumstances like this. But it does not follow that Soto 's reasoning bears on burglary charges-which are based on the defendant's intent at the moment of entering a store, regardless of whether violence actually occurred.

5 The People's position would put a trial court in a difficult position when, as here, a defendant seeks to recharacterize a long-ago burglary conviction as misdemeanor shoplifting. At the time of his 1995 guilty plea to burglary, defendant did not admit which felony he intended to commit upon entering the store, as there was no need to do so. When the trial judge in 2017 determined what defendant's intent was upon entering the store decades earlier, it was not construing the record of conviction (see People v. Page (2017) 3 Cal.5th 1175, 1189, 225 Cal.Rptr.3d 786, 406 P.3d 319 [eligibility for recharacterization of Vehicle Code section 10851 conviction under Proposition 47 ordinarily turns on record of conviction] ), but adjudicating a fact that had never been established and could, if tried to a jury, depend on the credibility of the defendant about what he intended. Courts in Proposition 47 cases are permitted to make at least one type of factual determination that was not made at sentencing: determining whether property involved in theft was valued at less than $950, which qualifies the crime as a current misdemeanor. (People v. Romanowski (2017) 2 Cal.5th 903, 915-917, 215 Cal.Rptr.3d 758, 391 P.3d 633.) But in such cases there typically is no dispute about what property that conviction was based on (here, beer), and whether that property's value qualifies typically is clear, or, at least, subject to objective analysis from documentary evidence. (Here, there has been no dispute that the beer taken from the store was worth less than $950). A defendant's intent at the time of entering a store is a different type of determination because it turns on what was in the perpetrator's mind.