People v. Jimenez

Filed 5/8/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B283858
(Super. Ct. No. 2016041618)
Plaintiff and Appellant, (Ventura County)
v.
MIGUEL ANGEL JIMENEZ,
Defendant and Respondent.
The People appeal the trial court’s order reducing
Miguel Angel Jimenez’s felony convictions for identity theft under
Penal Code section 530.5, subdivision (a)1 to misdemeanor
shoplifting under section 459.5, subdivision (a). They contend
that section 459.5, which was enacted as part of Proposition 47
(§ 1170.18), does not apply to section 530.5 identity theft offenses,
even when the amount involved does not exceed $950.
In People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales),
the defendant cashed two stolen checks valued at less than $950
each. (Id. at p. 862.) Our high court determined that the
1 All statutory references are to the Penal Code.
1
defendant’s “act of entering a bank to cash a stolen check for less
than $950, traditionally regarded as theft by false pretenses . . . ,
now constitutes shoplifting under [section 459.5].” (Ibid.)
Section 459.5, subdivision (b) states that any act of shoplifting
“shall be charged as shoplifting,” and that no one “charged with
shoplifting may also be charged with burglary or theft of the
same property.” (Gonzales, at p. 876 [“A defendant must be
charged only with shoplifting when [section 459.5] applies”].)
Like the defendant in Gonzales, Jimenez cashed two
stolen checks valued at less than $950 each. These acts
constitute misdemeanor shoplifting under section 459.5,
subdivision (a) and must be charged as such. (§ 459.5, subd. (b);
Gonzales, supra, 2 Cal.5th at p. 876.) The trial court correctly
reduced Jimenez’s felony convictions for identity theft to
misdemeanors pursuant to Proposition 47. Accordingly, we
affirm.
FACTS AND PROCEDURAL HISTORY
On two different occasions, Jimenez entered Loan
Plus, a commercial check-cashing business, and cashed a check
from Outer Wall, Inc., made payable to himself. The checks were
valued at $632.47 and $596.60, respectively. Outer Wall, Inc. did
not issue the checks in Jimenez’s name.
The People filed an information charging Jimenez
with two felony violations of section 530.5, subdivision (a) -- the
unauthorized use of the personal identifying information of
another.2 They further alleged that Jimenez had suffered a prior
2Section 530.5, subdivision (a) provides, in relevant part:
“Every person who willfully obtains personal identifying
information, as defined in subdivision (b) of Section 530.55, of
another person, and uses that information for any unlawful
2
strike conviction for assault with a deadly weapon plus a prison
prior.
After a jury convicted Jimenez of both charges,
Jimenez admitted the special allegations. He also moved to
reduce the convictions to misdemeanors pursuant to Proposition
47 and Gonzales, supra, 2 Cal.5th 858. Jimenez asserted his
conduct constituted misdemeanor shoplifting under section 459.5,
subdivision (a), as interpreted by our Supreme Court in Gonzales.
The trial court granted Jimenez’s motion over the
People’s objection. It stated that it had reviewed Gonzales, supra,
2 Cal.5th 858, and People v. Romanowski (2017) 2 Cal.5th 903
(Romanowski), and concluded that under the reasoning and
holding of those two cases, the “[c]ourt’s hands have been
somewhat tied.” The court explained: “It appears indicated that
when there’s conduct that results in the theft, which was here
theft of property when it was used to derive on two separate
instances money less than $950, the Court is mandated to reduce
those to misdemeanors. Those are the rulings put forth by the
Supreme Court.” The court further stated: “And even though
[this case] involves a different charge, it appears to be somewhat
of a theft charge which was the focus of Gonzale[s] and
Romanowski . . . . And based on the Court’s review of those two
recent rulings, the Court feels it is obligated . . . to grant the
defense motion and reduce Count 1 and Count 2 to misdemeanors
as it appears to be that conduct that has been described in
Proposition 47 as a shoplifting type of offense.”
purpose, including to obtain, or attempt to obtain, credit, goods,
services, real property, or medical information without the
consent of that person, is guilty of a public offense . . . .”
3
Following reclassification of the convictions, the trial
court sentenced Jimenez to two consecutive six-month terms.
The court awarded Jimenez presentence credits, and his sentence
was deemed served. The People appeal.
DISCUSSION
Proposition 47
On November 4, 2014, California voters enacted
Proposition 47, “The Safe Neighborhoods and Schools Act,” which
became effective the next day. (Cal. Const., art. II, § 10, subd.
(a).) Proposition 47 reduced certain theft-related offenses from
felonies or wobblers to misdemeanors, unless the offenses were
committed by certain ineligible offenders. (People v. Rivera
(2015) 233 Cal. App. 4th 1085, 1091.) Under Proposition 47, a
defendant may be eligible for misdemeanor resentencing or
redesignation under section 1170.18 if he or she would have been
guilty of a misdemeanor under Proposition 47, and if the offense
would have been a misdemeanor had Proposition 47 been in effect
at the time of the offense. (§ 1170.18, subds. (a) & (f); Gonzales,
supra, 2 Cal.5th at pp. 863, 875.) Resentencing or redesignation
under Proposition 47 is “required unless ‘the court, in its
discretion, determines that resentencing the petitioner [or
reclassifying the conviction as a misdemeanor] would pose an
unreasonable risk of danger to public safety.’ (§ 1170.18, subd.
(b).)” (Gonzales, at p. 863.)
Proposition 47 directs that the “act shall be broadly
construed to accomplish its purposes.”3 One such purpose of
3 Cal. Voter Information Pamp., Gen. Elec. (Nov. 4, 2014)
text of Prop. 47 (Voter Information Guide), p. 74, § 15, at

[as of May 2, 2018].
4
Proposition 47 is “‘to reduce the number of nonviolent offenders
in state prisons, thereby saving money and focusing prison on
offenders considered more serious under the terms of the
initiative.’ [Citations.] [Proposition 47] also expressly states an
intent to ‘[r]equire misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug
possession, unless the defendant has prior convictions for
specified violent or serious crimes.’” (Gonzales, supra, 2 Cal.5th
at p. 870, citing Harris v. Superior Court (2016) 1 Cal.5th 984,
992, and the Voter Information Guide, supra, text of Prop. 47, §§
2-3, par. (3), p. 70.)
“Shoplifting”
Proposition 47 added several new provisions,
including section 459.5, which created the crime of shoplifting.
Section 459.5, subdivision (a) provides: “Notwithstanding
[s]ection 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 is punishable as a misdemeanor unless
the defendant has previously been convicted of a specified
offense.” (Gonzales, supra, 2 Cal.5th at p. 863; § 459.5, subd. (a).)
Section 459.5, subdivision (b) explicitly limits charging with
respect to shoplifting: “‘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.’” (Gonzales, at p. 863.)
5
No Error in Reducing Jimenez’s
Felony Convictions to Misdemeanor Shoplifting
The People contend Jimenez is ineligible for
reduction of his felony convictions to misdemeanor shoplifting
because his offenses constitute identity theft (§ 530.5, subd. (a)),
which remains a felony under Proposition 47. We disagree.
The first published decision to discuss the interplay
between felony identity theft (§ 530.5) and section 459.5 is People
v. Garrett (2016) 248 Cal. App. 4th 82 (Garrett).4 Garrett entered
a store and attempted to buy gift cards with a stolen credit card.
(Garrett, at p. 84.) He pled no contest to commercial burglary
and later petitioned for resentencing under Proposition 47.
(Garrett, at p. 86.) The trial court denied the petition. (Ibid.)
The Court of Appeal reversed, rejecting the Attorney General’s
argument that because Garrett intended to commit felony
identity theft (§ 530.5), section 459.5 did not apply. (Garrett, at
pp. 86-90.) The court reasoned: “[E]ven assuming [Garrett]
intended to commit felony identity theft, he could not have been
charged with burglary under . . . section 459 if the same act --
entering a store with the intent to purchase merchandise with a
stolen credit card -- also constituted shoplifting under [s]ection
459.5.” (Id. at p. 88.) Based on this reasoning, the court held
that the use of a stolen credit card to purchase merchandise
4 The California Supreme Court granted review in Garrett
and held the case (No. S236012) pending its decision in Gonzales.
After Gonzales was decided, the Court dismissed its grant of
review and remanded the matter to the Court of Appeal for
issuance of the remittitur. The Garrett decision is now final and
citable as precedent. (Cal. Rules of Court, rule 8.528(b).)
6
valued at less than $950 constitutes shoplifting under section
459.5. (Garrett, at p. 90.)
Shortly thereafter, our Supreme Court issued
Gonzales. Gonzales had stolen his grandmother’s checkbook and,
on two separate occasions, entered a bank and cashed a check he
had made out to himself for $125. (Gonzales, supra, 2 Cal.5th at
p. 862.) Gonzales was charged with the felonies of second degree
burglary and forgery. He pled guilty to burglary, and the forgery
count was dismissed. (Ibid.) Gonzales petitioned for
misdemeanor resentencing under Proposition 47. (Gonzales, at
p. 862.) The trial court denied his petition, the Court of Appeal
affirmed, but the Supreme Court reversed, holding that the
electorate “intended that the shoplifting statute apply to an entry
to commit a nonlarcenous theft. Thus, [Gonzales’s] act of entering
a bank to cash a stolen check for less than $950, traditionally
regarded as a theft by false pretenses rather than larceny, now
constitutes shoplifting under the statute. [Gonzales] may properly
petition for misdemeanor resentencing under . . . section
1170.18.” (Ibid, italics added.)
The Attorney General argued that even if Gonzales
did engage in shoplifting, he was ineligible for resentencing
because he also entered the bank intending to commit felony
identity theft under section 530.5, subdivision (a). (Gonzales,
supra, 2 Cal.5th at p. 876.) The Attorney General’s position was
that Gonzales’s felony burglary conviction could have been based
on his separate intent to commit felony identity theft. (Ibid.)
Relying on Garrett, Gonzales responded that section 459.5
precluded such alternate charging because his conduct also
constituted shoplifting. (Gonzales, at p. 876.) Noting that
Gonzales “has the better view,” the Supreme Court concluded
7
that “[s]ection 459.5, subdivision (b) requires that any act of
shoplifting ‘shall be charged as shoplifting’ and no one charged
with shoplifting ‘may also be charged with burglary or theft of the
same property.’ (Italics added.) A defendant must be charged
only with shoplifting when the statute applies. It expressly
prohibits alternate charging and ensures only misdemeanor
treatment for the underlying described conduct.” (Ibid.)
The court further explained that the use of the
phrase “‘the same property’” in section 459.5, subdivision (b)
“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. 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. 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
pp. 876-877.)
Here, Jimenez’s conduct is identical to Gonzales’s
conduct. They both entered a commercial establishment during
business hours for the purpose of cashing stolen checks valued at
less than $950 each. Both defendants committed “theft by false
pretenses,” which “now constitutes shoplifting under [section
459.5, subdivision (a)].” (Gonzales, supra, 2 Cal.5th at pp. 862,
868-869 [shoplifting as defined in section 459.5, subdivision (a)
encompasses all thefts, including theft by false pretenses].)
8
Section 459.5, subdivision (b) makes it clear that “‘[a]ny act of
shoplifting as defined in subdivision (a) shall be charged as
shoplifting,’” and that “‘[n]o person who is charged with
shoplifting may also be charged with burglary or theft of the
same property.’” (Gonzales, at p. 863, italics added.) The trial
court properly concluded that Jimenez’s acts of shoplifting could
not be charged as felony identity theft under section 530.5,
subdivision (a). (Gonzales, at p. 862.) Under section 495,
subdivision (b), they could be charged only as misdemeanor
shoplifting. (Gonzales, at pp. 862, 876-877; see 2 Couzens,
Bigelow & Prickett, Sentencing Cal. Crimes (The Rutter Group
2017) § 25:4, p. 25-29 [“If section 459.5 applies, the defendant
may not be alternatively charged with burglar[y] or identity
theft”].)
In addition, the Supreme Court has rejected the view
that obtaining a person’s identifying information in the course of
a theft is excluded from Proposition 47. In Romanowski, the
Attorney General argued that the crime of theft of an access card
was enacted to protect consumers and therefore should be exempt
from section 490.2, the petty theft statute under Proposition 47.5
(Romanowski, supra, 2 Cal.5th at pp. 913-914.) The court
disagreed, stating: “The People’s argument about ‘the statute’s
broad consumer protection’ . . . overlooks the fact that Proposition
47 expressly reduced the punishment for another set of crimes
5Section 490.2, subdivision (a) provides, with some
exceptions, that “[n]otwithstanding [s]ection 487 or any other
provision of law defining grand theft, obtaining any property by
theft where the value of the money, labor, real or personal
property taken does not exceed nine hundred fifty dollars ($950)
shall be considered petty theft and shall be punished as a
misdemeanor . . . .”
9
that serve to protect consumers. Proposition 47 reduces
punishment for ‘forgery relating to a check, bond, bank bill, note,
cashier’s check, traveler’s check, or money order, where the value
of [such document] does not exceed nine hundred fifty dollars
($950).’ (§ 473, subd. (b).) Section 473 also protects consumers
from fraud and identity theft. In fact, a check can contain some
of the same information that is found on an access card, along
with the owner’s address and other details that would facilitate
identity theft. Given that Proposition 47 specifically created a
$950 threshold for check forgery, we see no reason to infer
(against [section] 490.2’s plain meaning) that voters implicitly
intended to exempt theft of access information simply because
this criminal prohibition serves to protect consumers.” (Id. at
p. 913.)
Proposition 47 is interpreted broadly to accomplish
its purpose of reducing the number of nonviolent offenders in
state prisons. (Gonzales, supra, 2 Cal.5th at p. 870; Voter
Information Guide, supra, text of Prop. 47, § 15.) Just as
Romanowski declined to exempt theft of an access card from the
ambit of section 490.2, we reject the People’s request to exempt
identity theft under section 530.5, subdivision (a) from the
purview of shoplifting under section 459.5. That Jimenez
committed identity theft in the course of the shoplifting does not
alter the fact that he committed shoplifting. “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.” (Garrett, supra, 248 Cal.App.4th at p. 88, italics
omitted.) Section 459.5, subdivision (b) explicitly addresses this
situation by curtailing the prosecution’s charging discretion when
10
the conduct qualifies as shoplifting. (See Gonzales, at p. 876 [“A
defendant must be charged only with shoplifting when [section
459.5] applies”].) In sum, section 459.5, subdivision (b) barred
the People from charging Jimenez with identify theft under
section 530.5, subdivision (a) when his underlying conduct
constituted shoplifting. (Gonzales, at pp. 862, 876-877; 2
Couzens, Bigelow & Prickett, supra, at § 25:4, p. 25-29.)
We are not persuaded by the People’s reliance on
either People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta), or
People v. Segura (2015) 239 Cal. App. 4th 1282 (Segura), both of
which predate Gonzales and Romanowski. Moreover, Huerta
does not aid the People’s position. The District Attorney in that
case argued that Huerta was not eligible to have her burglary
conviction redesignated as misdemeanor shoplifting because she
committed felony conspiracy during the offense. (Huerta, at pp.
544-545.) The Court of Appeal determined that under the plain
text of section 459.5, “the prosecutors would have been required
to charge [Huerta] with shoplifting and could not have charged
her with burglary predicated on conspiracy had Proposition 47
been in effect at the time of her offense.” (Huerta, at p. 545.) As
a result, Huerta was entitled to have her burglary conviction
reclassified as misdemeanor shoplifting. (Ibid.)
The defendant in Segura sought relief under
Proposition 47 for his conviction of conspiracy to commit a petty
theft. (Segura, supra, 239 Cal.App.4th at p. 1284.) The Court of
Appeal determined that Proposition 47 does not apply to
convictions for conspiracy. (Ibid.) The court, however, did not
discuss section 459.5 and what effect it has on the prosecution’s
discretion to charge persons with felony conspiracy for purposes
of avoiding the benefits of Proposition 47. “[I]t is axiomatic that
11
cases are not authority for propositions not considered.” (People
v. Alvarez (2002) 27 Cal. 4th 1161, 1176; People v. Superior Court
(Rodas) (2017) 10 Cal.App.5th 1316, 1323.)
Nor are we persuaded by two recent decisions cited
by the People: People v. Liu (2018) 21 Cal.App.5th 143 (Liu) and
People v. Sanders (Apr. 17, 2018, D072875) _ Cal.App.5th _ [2018
Cal.App. Lexis 342] (Sanders). Not only are the cases
distinguishable, but they also do not address Gonzales.
The court in Liu determined that Liu’s conviction for
obtaining the identifying information of 10 or more people under
section 530.5, subdivision (c) did not qualify for resentencing
under Proposition 47. (Liu, supra, 21 Cal.App.5th at pp. 150-
153.) Liu did not argue, however, that her offense fell within the
ambit of section 459.5, and it does not appear that the offense
qualifies as shoplifting. The applicable count did not charge Liu
with entering a commercial establishment during regular
business hours with the intent to commit larceny by taking or
intending to take property worth $950 or less. (§ 459.5, subd.
(a).) Instead, she was charged with possession of the driver’s
licenses, social security cards and other personal information of
10 different victims. (Liu, at p. 147.)
Although Liu broadly suggests that any conviction
under section 530.5 is not subject to Proposition 47 relief (Liu,
supra, 21 Cal.App.5th at pp. 150-153), the only issue before it
was the classification of a conviction under section 530.5,
subdivision (c). The court had no occasion to consider whether a
conviction under section 530.5, subdivision (a) may qualify as
shoplifting under section 459.5, subdivision (a). Once again,
“cases are not authority for propositions not considered.” (People
12
v. Alvarez, supra, 27 Cal.4th at p. 1176; People v. Superior Court
(Rodas), supra, 10 Cal.App.5th at p. 1323.)
. In Sanders, the defendant was convicted of two
counts of commercial burglary (§ 459) and two counts of identity
theft (§ 530.5, subd. (a)). (Sanders, supra, _ Cal.App.5th at p. _
[2018 Cal.App. Lexis 342, at p. *1].) The trial court reclassified
Sanders’s burglary convictions, reasoning they qualified as
shoplifting under section 459.5, but denied her petition to
reclassify her identity theft convictions. (Sanders, at p. _ [p. *1].)
On appeal, Sanders did not contend that the identity theft
convictions qualified as shoplifting under section 459.5,
subdivision (a). (Sanders, at p. _ [pp. *1-2].) Instead, she argued
that the section 530.5 offenses must be deemed petty thefts since
the value of the money or merchandise taken during the thefts
was less than $950. (Sanders, at p. _ [pp. *1-2].)
The Court of Appeal rejected Sanders’s argument,
holding that identify theft offenses under section 530.5 are not
actually theft offenses. (Sanders, supra, _ Cal.App.5th at p. _
[2018 Cal.App. Lexis 342, at p. *6].) But the case Sanders
primarily relies upon for this proposition states that “the
retention of personal identifying information of another is not a
possession crime, but is a unique theft crime.” (People v.
Valenzuela (2012) 205 Cal. App. 4th 800, 808, italics added; see
also Gonzales, supra, 2 Cal.5th at p. 862.) In any event, Sanders
is inapposite because it did not consider whether Sanders’s
identity theft convictions are subject to reclassification under
section 459.5.
We conclude, based on Gonzales, Romanowski and
Garrett, that the trial court properly granted Jimenez’s motion to
reduce his felony identity theft convictions to misdemeanors.
13
Jimenez met his burden of establishing that his convictions
qualified under Proposition 47 as misdemeanor shoplifting
offenses.6
DISPOSITION
The order granting Jimenez’s motion for reduction
of his two felony convictions is affirmed.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
6 Because we agree with Jimenez that the trial court
correctly granted his motion for the reasons stated in its ruling,
we need not reach Jimenez’s alternative argument that each
identity theft charge constituted petty theft under section 490.2.
14
Manuel J. Covarrubias, Judge
Superior Court County of Ventura
______________________________
Gregory D. Totten, District Attorney, Lisa O.
Lyytikainen, Senior Deputy District Attorney, and Michelle
Contois, Deputy District Attorney, for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, William M. Quest,
Senior Deputy Public Defender, for Defendant and Respondent.
15