NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
Defendant Marvin Milton Warren contends on appeal that the trial court erred in refusing to designate his felony convictions for second degree commercial burglary (Pen. Code,1 §§ 459, 460, subd. (b)) as misdemeanors pursuant to Proposition 47 (§ 1170.18). Since defendant filed his appeal, this issue has been resolved in his favor by People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). Accordingly, we reverse and remand.
BACKGROUND
On May 3, 2008, defendant entered J.C. Penney department store and attempted to purchase a watch with three $100 traveler's checks, which he signed in the cashier's presence. The cashier took them to her supervisor for assistance, but when she returned, defendant was gone.
On May 4, 2008, defendant entered Gottschalks department store and attempted to purchase clothing with a $100 traveler's check and a $100 American Express gift check. One check was already signed in another person's name, and defendant signed the other in the cashier's presence in the same name. When the store supervisor told defendant the checks were no good, defendant argued briefly, then took the checks and quickly left the store.
On April 8, 2009, defendant was convicted by no contest plea of two counts of second degree commercial burglary (§§ 459, 460, subd. (b)), resisting an officer (§ 69), and five counts of check forgery (§ 470, subd. (d)). He admitted having suffered one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served three prior prison terms (§ 667.5, subd. (b)).
On May 15, 2009, the trial court sentenced defendant to four years in prison: the midterm of two years on one count of commercial burglary, plus two one-year prior prison term enhancements. The two-year terms on the remaining counts were to run concurrently, and the remaining allegations were stricken pursuant to section 1385.1.
On October 13, 2015, defendant filed an application pursuant to section 1170.18 to designate his convictions as misdemeanors.
On March 21, 2016, the trial court granted the application as to the five counts of check forgery, but denied it as to the counts of commercial burglary and resisting an officer.
DISCUSSION
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person `currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be `resentenced to a misdemeanor . . . unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b)[, italics added].)" (People v. Rivera, supra, at p. 1092.) Furthermore, "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).)
Recently, Gonzales addressed the new crime of "shoplifting," as follows:
"Proposition 47 created the new crime of `shoplifting,' defined as entering an open commercial establishment during regular business hours with the intent to commit `larceny' of property worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute, which also applies to an entry with intent to commit `larceny' or any felony. (Pen. Code, § 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft." (Gonzales, supra, 2 Cal.5th at p. 862.)
Gonzales held that "the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft," and thus the court concluded the "defendant'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." Accordingly, the court concluded that the defendant could "petition for misdemeanor resentencing under Penal Code section 1170.18." (Gonzales, supra, 2 Cal.5th at p. 862.)
Here, we conclude Gonzales applies to defendant's second degree commercial burglary convictions: entering a retail establishment to purchase merchandise with a forged check now constitutes shoplifting. Consequently, we will reverse for reconsideration of defendant's application for designation of his commercial burglary convictions as misdemeanors under section 1170.18.
DISPOSITION
The trial court's order denying defendant's Penal Code section 1170.18 application for designation of the two second degree commercial burglary convictions (counts 1 & 2) as misdemeanors is reversed. The matter is remanded to the trial court for further proceedings pursuant to Penal Code section 1170.18 and not inconsistent with this opinion.
