People v. Garner

Filed 8/19/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B266881
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA037067)
v.
APRIL GARNER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Daviann L. Mitchell, Judge. Reversed and remanded with directions.
David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez
and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
This case presents an issue currently pending before the California Supreme
Court: whether a felony conviction for second degree commercial burglary (Pen.
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Code, § 459) is reducible to misdemeanor shoplifting (§ 459.5) if the defendant
entered the commercial establishment with intent to commit theft by false
pretenses. (See People v. Gonzalez, review granted February 17, 2016, S231171.)
Here, the trial court found that appellant April Garner entered a grocery store with
intent to commit theft by false pretenses, and determined that appellant was
statutorily ineligible to have her felony burglary conviction reduced to a
misdemeanor. For the reasons set forth below, we conclude that appellant was
eligible for resentencing. Accordingly, we reverse and remand for further
proceedings.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
On November 8, 2006, appellant entered a grocery store and attempted to
purchase items with a forged $100 traveler’s check. A store employee recognized
the check as counterfeit, and refused to accept it. Subsequently, appellant was
arrested. On March 25, 2014, appellant pled no contest to two felony counts of
forgery (§§ 470, subd. (d), 475, subd. (a)) and one felony count of second degree
commercial burglary (§ 459). The trial court suspended imposition of sentence and
granted appellant five years of formal probation.
Following the passage of Proposition 47 -- which reduced certain theft-
related offenses to misdemeanors -- appellant filed a petition to recall her sentence
with respect to the felony forgery counts. The trial court granted appellant’s
motion to reclassify her felony forgery counts to misdemeanors, and resentenced
appellant to summary probation as to those offenses.
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All further statutory citations are to the Penal Code, unless otherwise stated.
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On May 19, 2015, appellant filed a petition for resentencing with respect to
her felony burglary count. She argued that it was reducible to misdemeanor
shoplifting. The district attorney objected, arguing that the felony burglary count
was not reducible, as appellant had entered the grocery store with intent to commit
theft by false pretenses, not intent to commit larceny. The trial court agreed. It
found that appellant had entered the grocery store with intent to commit theft by
false pretenses and accordingly, the felony burglary conviction was not reducible.
Appellant filed a timely appeal from the court’s order denying her petition.
DISCUSSION
On November 4, 2014, California voters approved Proposition 47, which
went into effect the next day. (People v. Rivera (2015) 233 Cal. App. 4th 1085,
1089 (Rivera).) Proposition 47 was intended to “ensure that prison spending is
focused on violent and serious offenses, to maximize alternatives for nonserious,
nonviolent crime, and to invest the savings generated from this act into prevention
and support programs in K-12 schools, victim services, and mental health and drug
treatment.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47,
§ 2, p. 70.) It reclassified certain drug- and theft-related offenses as misdemeanors,
unless the offenses were committed by ineligible defendants. (Rivera, supra, at
p. 1091; People v. Contreras (2015) 237 Cal. App. 4th 868, 889-890.) It also
included a provision that allows a defendant currently serving a sentence for a
felony that would have been a misdemeanor had Proposition 47 been in effect at
the time of the offense to file a petition for recall of sentence and resentencing.
(§ 1170.18.)
Proposition 47 added section 459.5, which provides: “Notwithstanding
Section 459, shoplifting is defined as entering a commercial establishment with
intent to commit larceny while that establishment is open during regular business
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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.” The voter information
guide for Proposition 47 explained that “[u]nder current law, shoplifting property
worth $950 or less (a type of petty theft) is often a misdemeanor. However, such
crimes can also be charged as burglary, which is a wobbler. Under this measure,
shoplifting property worth $950 or less would always be a misdemeanor and could
not be charged as burglary.” (Voter Information Guide, supra, analysis of Prop.
47, p. 35.)
Here, the trial court determined that appellant’s second degree commercial
burglary conviction was not reducible to shoplifting pursuant to section 1170.18, as
appellant had entered the commercial establishment with intent to commit theft by
false pretenses, not larceny. Appellant contends that “larceny,” as used in section
459.5, includes “theft by false pretenses,” and that her burglary conviction thus
qualifies for reclassification under Proposition 47. We agree.
In interpreting Proposition 47, “we apply the same principles that govern
statutory construction” (People v. Rizo (2000) 22 Cal. 4th 681, 685), and “our
primary purpose is to ascertain and effectuate the intent of the voters who passed
the initiative measure. [Citations.]” (In re Littlefield (1993) 5 Cal. 4th 122, 130.)
“‘In determining such intent, we begin with the language of the statute itself.’
[Citation.] We look first to the words the voters used, giving them their usual and
ordinary meaning.” (Rivera, supra, 233 Cal.App.4th at p. 1100, quoting People v.
Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 192.) If there is no ambiguity in
the language of the statute, then the plain meaning of the language governs. If the
statutory language is ambiguous, we may examine the context in which the
language appears, adopting the construction that best harmonizes the statute
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internally and with related statutes. (Ibid.) In construing a statute, we must also
consider “‘“‘the object to be achieved and the evil to be prevented by the
legislation.’”’” (Ibid., quoting People v. Superior Court (Zamudio), supra, at
p. 193.)
We presume the electorate was aware of existing law when it enacted
Proposition 47 (John L. v. Superior Court (2004) 33 Cal. 4th 158, 171; People v.
Weidert (1985) 39 Cal. 3d 836, 844). As enacted by the voters, section 459.5
provides that “shoplifting” is committed when, inter alia, a defendant enters a
commercial establishment with “intent to commit larceny.” The phrase “intent to
commit larceny” in section 459.5 is similar to the phrase “intent to commit grand
or petit larceny” used in the burglary statute (§ 459). Our Supreme Court has held
that an “intent to commit theft by a false pretense” can support a burglary
conviction. (People v. Parson (2008) 44 Cal. 4th 332, 354 (Parson).) Parson cited
People v. Nguyen (1995) 40 Cal. App. 4th 28 (Nguyen), which specifically held that
the “intent to commit grand or petit larceny” element of burglary may be satisfied
by entering a victim’s house with the intent to pass worthless checks, which
constituted “petit” theft by false pretenses. (Nguyen, supra, at p. 30.) In reaching
its conclusion, the Nguyen court explained: “[I]n 1927, the Legislature amended
the larceny statute to define theft as including the crimes of larceny, embezzlement
and obtaining property by false pretense. (Stats. 1927, ch. 619, § 1, p. 1046.) At
the same time, the Legislature also enacted section 490a stating, ‘[w]herever 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.’ (Stats. 1927, ch. 619, § 7, p. 1047.) Thus, the
Legislature has indicated a clear intent that the term ‘larceny’ as used in the
burglary statute should be read to include all thefts, including ‘petit’ theft by false
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pretenses.” (Nguyen, supra, at p. 31.) For the same reasons, we conclude the
voters intended “larceny” as used in section 459.5 to include all forms of “theft,”
including “theft by false pretenses.”
Our conclusion is consistent with the voters’ intent. As noted, Proposition
47 was designed, inter alia, to “ensure that prison spending is focused on violent
and serious offenses . . . .” (Voter Information Guide, supra, text of Prop. 47, § 2,
p. 70.) Appellant’s second degree commercial burglary conviction based on using
a forged $100 traveler’s check is a nonviolent offense, not demonstrably more
serious than classic shoplifting, viz., entering a store and filching $100 worth of
items. Reclassifying it as a misdemeanor is thus consistent with the articulated
purposes behind Proposition 47. In short, we conclude appellant is eligible to have
her felony burglary conviction reclassified to misdemeanor shoplifting.
DISPOSITION
The order is reversed, and the matter remanded for further proceedings in
light of this opinion.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J. COLLINS, J.
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