California Court of Appeals, Second District, Eighth Division
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.
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.
ACTING P. J.
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.
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.
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.
AND PROCEDURAL BACKGROUND
on the incomplete record before us, it appears that in 2002,
petitioner was convicted of (1) identity theft (Pen. Code,
§ 530.5, subd. (a)); (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.
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.)
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. (§ 1170.18, subd. (f).)
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.”
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.
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)