Filed 8/10/18 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

KARA TAYLOR BRAYTON,

 Defendant and Appellant.

2d Crim. No. B284408

(Super. Ct. No. 2016005604)

(Ventura County)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 31, 2018, be 

modified as follows:

1. The penultimate sentence in the first paragraph on page 1 is 

changed to read: “She uses another person’s driver’s license to 

falsely identify herself.”

There is no change in the judgment.
Filed 7/31/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

KARA TAYLOR BRAYTON,

 Defendant and Appellant.

2d Crim. No. B284408

(Super. Ct. No. 2016005604)

(Ventura County)

Defendant enters a department store and removes the price 

tags from two items for sale worth slightly over $100. She then 

tells store personnel she previously purchased the items and is 

returning them for a refund. She uses a stolen credit card to 

falsely identify herself. Defendant eventually pleads guilty to 

identity theft, a felony. 

We conclude defendant is eligible for relief under 

Proposition 47.

Kara Taylor Brayton appeals an order denying her 

“motion” for resentencing under Proposition 47, the Safe 

Neighborhoods and Schools Act. (Pen. Code, § 1170.18.)1 She

previously pled guilty to identity theft (§ 530.5, subd. (a)), a 

 

1 All statutory references are to the Penal Code.
2

felony. In her motion for Proposition 47 relief, Brayton claims

her “conduct” in committing that identity theft offense met “the 

elements of shoplifting” under Proposition 47 and her conviction 

should be reduced to a misdemeanor. We agree, reverse and 

remand.

FACTS

On February 5, 2016, Brayton entered a Kohl’s store in 

Simi Valley. She took a watch from the jewelry department and 

removed the security tag. She also “removed a bra from a 

hang[e]r and balled it up in her arm.” 

Brayton then went to the store’s customer service 

department to falsely claim that she had previously purchased 

these items and was seeking a store credit in the amount of 

$107.07. To obtain this credit, Brayton presented a California 

driver’s license which belonged to Ambar Lechuga. Someone had 

previously stolen Lechuga’s license. 

Brayton was detained and questioned by two of the store’s 

“loss prevention employees.” During questioning, Brayton was 

unable to spell Lechuga’s name or provide the year Lechuga was 

born. 

One of the store’s security employees called the police. 

Brayton “fled from the store.” When contacted by police, Brayton 

said she “did something wrong and did not have an explanation 

as to why she tried to shoplift.” 

In the felony information, the People alleged Brayton 

committed “the crime of IDENTITY THEFT-OBTAIN CREDIT 

WITH OTHER’S IDENTIFICATION, in violation of Penal Code 

530.5(a), a Felony” (count 1), and petty theft by taking Kohl’s 

property, a misdemeanor (§ 484, subd. (a)) (count 2). 

Brayton pled guilty to both counts and admitted she “did 

what is alleged in [the information].”
3

On May 18, 2017, Brayton filed a motion to reduce count 1 

to a misdemeanor pursuant to Proposition 47. She relied on 

People v. Gonzales (2017) 2 Cal.5th 858 as authority for the 

motion. She claimed that under Gonzales she “can only be 

charged and sentenced as a misdemeanant for her shoplifting 

conduct.” 

The People opposed the motion, claiming “[v]iolations of 

section 530.5(a) are not eligible for reduction under Proposition 

47.” 

The trial court denied the motion. It agreed with the 

People’s position that Brayton’s conviction was not an eligible 

crime for Proposition 47 resentencing. The court said, “I don’t 

think Gonzales applies.”

DISCUSSION

Eligibility for Resentencing Under Proposition 47

Proposition 47 reduces “penalties for certain theft and drug 

offenses by amending existing statutes.” (People v. Gonzales, 

supra, 2 Cal.5th at p. 863.) Its goal is to “reduce the number of 

nonviolent offenders in state prisons, thereby saving money and 

focusing prison on offenders considered more serious under the 

terms of the initiative.’” (Id. at p. 870.) “Section 1170.18 now 

permits a defendant serving a sentence for one of the enumerated 

theft or drug offenses to petition for resentencing under the new, 

more lenient, provisions.” (Id. at p. 863.) If the felony offense 

committed “by an eligible defendant would have been a 

misdemeanor under [Proposition 47], resentencing is required 

unless, ‘the court, in its discretion, determines that resentencing 

the petitioner would pose an unreasonable risk of danger to 

public safety.’” (Ibid.)

Proposition 47 added a new misdemeanor shoplifting crime. 

(People v. Gonzales, supra, 2 Cal.5th at p. 863.) If a defendant’s 
4

conduct in committing the prior felony falls within the definition 

of this new crime, he or she may be entitled to resentencing relief.

The new provision, section 459.5, provides that “shoplifting is 

defined as entering a commercial establishment with intent to 

commit larceny while that establishment is open during regular 

business hours, where the value of the property that is taken or 

intended to be taken does not exceed nine hundred fifty dollars 

($950).” In Gonzales, our Supreme Court held that a “defendant’s 

act of entering a bank to cash a stolen check for less than $950, 

traditionally regarded as a theft by false pretenses . . . , now 

constitutes shoplifting under [Proposition 47].” (Id. at p. 862.) 

That consequently allows a defendant to “petition for 

misdemeanor resentencing.” (Ibid.)

Gonzales rejected the People’s claim that if a defendant’s 

act could be considered shoplifting under Proposition 47, the 

defendant could lose eligibility for resentencing if that act also 

could be charged under another Penal Code provision. It said 

under Proposition 47, “[a] defendant must be charged only with 

shoplifting when the statute applies. . . . It expressly prohibits 

alternate charging and ensures only misdemeanor treatment for 

the underlying described conduct.” (People v. Gonzales, supra, 2 

Cal.5th at p. 876.) 

The court also rejected the claim that for consumer 

protection, identity theft crimes fall outside the scope of 

Proposition 47. In People v. Romanowski (2017) 2 Cal.5th 903, 

913, it said there is no “indication that voters implicitly sought to 

restrict Proposition 47’s scope based on unstated expectations 

about consumer protection.”

In People v. Garrett (2016) 248 Cal.App.4th 82, 84, the trial 

court denied a Proposition 47 petition and found the “defendant 

was not eligible for resentencing because he had entered the 
5

convenience store with the intent to commit felony identity theft 

under Penal Code section 530.5.”

The Court of Appeal reversed the denial of that petition. It 

held that “entering a commercial establishment with the intent to 

use a stolen credit card to purchase property valued at no more 

than $950 constitutes shoplifting,” a misdemeanor (§ 459.5), 

eligible for Proposition 47 resentencing. (People v. Garrett, supra, 

248 Cal.App.4th at p. 84.) It said, “[T]he dispositive issue is 

whether [the defendant’s] act fell within the definition of 

‘shoplifting’ under Section 459.5.” (Id. at p. 88, italics added.) 

“[W]e must interpret Section 459.5 as if it defined shoplifting to 

mean ‘entering a commercial establishment with intent to 

commit theft.” (Ibid.) It noted that under section 484 the 

definition of theft includes taking property of another “‘by any 

false or fraudulent representation or pretense.’” (Id. at p. 89.) 

The court said, “Using another person’s credit card to purchase 

property without the card owner’s consent is ‘theft’ under this 

definition.” (Ibid.)

In People v. Jimenez (2018) 22 Cal.App.5th 1282, review 

granted July 25, 2018, S249397, a defendant entered a 

commercial establishment to cash stolen checks valued at less 

than $950. We held a defendant convicted of identity theft under 

section 530.5, subdivision (a) was eligible for Proposition 47 

relief. (See also People v. Hoffman (2015) 241 Cal.App.4th 1304.)

Here the facts of Brayton’s identity theft crime are similar 

to Gonzales, Garrett and Jimenez. Brayton used a stolen driver’s 

license belonging to another person to obtain a $107.07 store 

credit. She obtained the credit by the false representation that 

she was the person named in that driver’s license. In Gonzales,

entering a bank to cash a stolen check fell within the purview of 

the resentencing provision. In Garrett, using another person’s 
6

credit card to purchase property constituted misdemeanor 

shoplifting under Proposition 47. Similarly, here it was Brayton’s 

use of another person’s driver’s license that allowed her to obtain 

the credit.

The People claim the facts here and those of Gonzales and 

Garrett are not identical. But that is a distinction without a 

difference in result. Notwithstanding some factual differences, 

Gonzales, Garrett and the instant case all fall within Proposition 

47’s broad definition of shoplifting. The trial court erred in ruling 

that Brayton’s conviction fell outside the scope of Proposition 47.

The People correctly note that in ruling on Brayton’s 

motion, the trial court did not make any “determination as to the 

amount of the loss.” Consequently, a remand is required.

DISPOSITION

The order denying the Proposition 47 motion is reversed. 

The matter is remanded to the trial court for further proceedings

on that motion.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.
7

Patricia M. Murphy, Judge

Superior Court County of Ventura

______________________________

Todd W. Howeth, Public Defender, William Quest, Senior 

Deputy Public Defender, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant 

Attorney General, Susan Sullivan Pithey, Supervising Deputy 

Attorney General, Michael J. Wise, Deputy Attorney General, for 

Plaintiff and Respondent.