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People v. Washington

California Court of Appeals, Second District, Eighth Division

May 25, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
RODERICK WASHINGTON, Defendant and Appellant.

          APPEAL from an order of the Superior Court of Los Angeles County No. YA050792. Mark S. Arnold, Judge. Reversed and remanded.

          Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

          RUBIN, ACTING P. J.

         Roderick Washington filed a petition for reclassification under Proposition 47, the Safe Neighborhood and Schools Act (Proposition 47), asking that his second degree burglary conviction be reclassified as a misdemeanor. The trial court summarily denied the petition on the ground that a burglary with the intent to commit identity theft does not constitute “shoplifting” under Proposition 47.

         On appeal, petitioner contends, respondent concedes, and we agree that a burglary with the intent to commit identity theft may meet the statutory definition of shoplifting under Proposition 47. However, respondent argues that the court's summary denial of the petition was correct because petitioner did not meet his initial burden of proof. Respondent argues that a Proposition 47 petitioner has the initial burden of showing three things: (1) he did not intend to commit a theft of property exceeding $950, (2) he did not intend to commit a nontheft felony, and (3) the value of the stolen property did not exceed $950.

         We conclude that legal authorities only support respondent's third characterization of a petitioner's initial burden under Proposition 47. We further conclude that petitioner made a prima facie showing that the property stolen was less than $950. On all these grounds, the trial court erred in its summary denial of the petition. We reverse and remand for the trial court to further consider the petition along with the record of conviction.

         FACTUAL AND PROCEDURAL BACKGROUND

         Based on the incomplete record before us, it appears that in 2002, petitioner was convicted of (1) identity theft (Pen. Code, § 530.5, subd. (a))[1]; (2) burglary at a commercial establishment (§ 459); and (3) possession of a forged driver's license (§ 470b). All three counts appear to have arisen from petitioner having used another person's identity without permission to secure credit and thereby purchase items at a Nordstrom's store. The trial court sentenced petitioner to three years in prison.

         In November 2014, the voters passed Proposition 47. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) “Proposition 47 was intended to ensure prison spending is focused on violent and serious offenders, to maximize alternatives for nonserious, nonviolent crimes, and to invest the savings generated thereby into educational, social, and mental health causes. [Citation.] To this end, Proposition 47 reduced most possessory drug offenses and thefts of property valued at $950 or less to straight misdemeanors.” (People v. Brown (2017) 7 Cal.App.5th 1214, 1217.)

         “Proposition 47 added section 459.5, which classifies ‘shoplifting' as a misdemeanor ‘where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).' [Citation.]” (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.) In addition, Proposition 47 created a process whereby a person who has completed a felony sentence for a crime that would be a misdemeanor under Proposition 47 may petition to have his or her conviction reclassified as a misdemeanor.[2] (§ 1170.18, subd. (f).)

         One month after Proposition 47 went into effect, in December 2014, petitioner filed a petition in pro per to have his 2002 burglary conviction reclassified as a misdemeanor. The trial court summarily denied it on the following ground: “The theft from Nordstrom was accomplished by identity theft. This [is] not a shop-lifting type of crime.”

         In March 2017, People v. Gonzales (2017) 2 Cal.5th 858 held that entering a bank to cash a stolen check for less than $950 is “shoplifting” within the meaning of section 459.5. (Id. at p. 862.) The Court further held that even if the defendant entered the bank with an intent to commit identity theft, he could only be charged with shoplifting under section 459.5. (Id. at p. 876.)

         In August 2017, petitioner filed a second petition in pro per to reclassify his burglary as shoplifting under Proposition 47. The handwritten petition stated that “The defendant crime consisted of 530.5(a) [identity theft] and 470(b) ...


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