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People v. Bunyard

California Court of Appeals, Fifth District

March 22, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
RANDY PAUL BUNYARD, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Merced County No. CRL007275B. Harry L. Jacobs, Judge.

          Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Nicholas M. Fogg, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          DETJEN, J..

         Randy Paul Bunyard (defendant) appeals from an order denying his request/petition to have his felony conviction for second degree burglary (Pen. Code, [1] § 459) redesignated as misdemeanor shoplifting (§ 459.5) and for resentencing thereon (§ 1170.18, subds. (a)-(e)). The trial court found an attempt to break into a coin-operated soap dispenser in a commercial laundromat did not comport with the commonsense meaning of “shoplifting”; hence, defendant's conviction did not qualify for resentencing.

         We hold defendant is eligible for resentencing under section 1170.18, subdivision (a), because his offense constitutes shoplifting as defined in section 459.5. Defendant is not, however, entitled to an order directing that he be resentenced. We remand the matter so the trial court can address the issue of dangerousness under section 1170.18, subdivisions (b) through (e).

         FACTS AND PROCEDURAL HISTORY[2]

         Just before 7:00 p.m. on January 31, 2012, Sergeant Ceja of the Los Banos Police Department was dispatched to a laundromat on 7th Street. He heard a banging noise, and found defendant sitting on a chair next to a coin-operated soap dispenser, “messing with it.” Defendant ran when he saw Ceja. As he fled, he dropped a screwdriver. Upon being taken into custody and advised of his rights, defendant admitted he was trying to break into the machine. He said someone had told him that a person had broken into the machine before and gotten money out of it. Defendant said no one was going to notice $10 or $15 missing from the machine.

         Ceja saw damage to the coin-operated machine that was consistent with pry marks and dents. He confirmed with the laundromat's owner that the machine previously had been broken into. Although Ceja assumed the damage to the machine was caused by defendant, he could not be certain. He did not know how much money actually was in the machine.

         Defendant was charged with second degree burglary, in that he unlawfully entered a building with the intent to commit theft (§ 459; count 1), possession of burglary tools (§ 466; count 2), and resisting an officer (§ 148, subd. (a)(1); count 3). It was further alleged he had suffered two prior strike convictions for attempted arson and carjacking (§§ 667, subds. (b)-(i), 1170.12) and had served four prior prison terms (§ 667.5, subd. (b)). On September 26, 2012, defendant pled no contest to count 1 and admitted four section 667.5, subdivision (b) allegations. He was sentenced to a total of 10 years in prison, and was ordered to pay restitution together with various fees, fines, and assessments.[3]

         On November 4, 2014, voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108.) Insofar as is pertinent here, the Act added section 459.5, which reclassified as misdemeanor shoplifting certain offenses that previously constituted felony second degree commercial burglary. The Act also provided a mechanism by which a person who, on November 5, 2014, was serving a sentence for a conviction of a felony that would be a misdemeanor under the Act, could petition the trial court for a recall of sentence and request resentencing under the Act. (§ 1170.18, subd. (a).)

         On or about January 20, 2015, defendant filed a written request/petition to have his sentence recalled and to be resentenced under section 459.5. A hearing on the petition was held on May 29, 2015. The prosecutor argued the petition should be denied, because shoplifting, as defined by Black's Law Dictionary, “requires the theft of merchandise from a store, specifically larceny of goods.” The prosecutor argued the theft of something other than goods and retail items for sale, plus the method of entry into the coin box, did not qualify the offense as a violation of section 459.5, and that it was “akin to a bank robber walking into a bank, making out with less than $950 and calling that a shoplifting just because the bank was open for business.” Defense counsel responded that the definition of shoplifting contained in section 459.5 controlled and that, although defendant broke into a coin machine, the laundromat itself was open for business and defendant took (or intended to take) less than $950. Counsel argued that if someone was in line at a grocery store and took money out of the cash register drawer while the clerk's back was turned, that would also qualify as shoplifting, so long as the amount taken was less than $950.

         The court found the commonsense meaning of shoplifting did not encompass breaking into coin boxes or taking money from the till when the clerk's back was turned. The court also questioned what was meant by the statute's use of “regular business hours.” The court concluded defendant's conduct did not qualify “under any regular definition of shoplifting, ” and so it denied the request for resentencing. It explained: “[I]t seems to me... that prying open a box with tools, ... it's an act that entails more than simply lifting goods from a shelf, or for that matter, even tapping the till. It ...


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