Filed 11/3/15 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

CHRISTIAN ACOSTA GARCIA,

 Defendant and Appellant.

2d Crim. No. B261447

(Super. Ct. No. 2014025693)

(Ventura County)

Christian Acosta Garcia appeals the denial of his petition to reduce his 

conviction of second degree burglary (Pen. Code,1 §§ 459, 460) to a misdemeanor 

"shoplifting" pursuant to section 459.5, which was enacted pursuant to Proposition 

47. We agree that the trial court erred in refusing to reduce the conviction and 

accordingly reverse.

FACTS AND PROCEDURAL HISTORY

Because appellant pled guilty prior to a preliminary hearing, the 

relevant facts are derived from the probation report. On or about July 28, 2014, 

Lane Magana's checkbook for his account at Chase Bank was lost or stolen. The 

following day, appellant entered the bank and cashed one of Magana's checks, 

 

1 All further undesignated statutory references are to the Penal Code.
2

which had been made payable to appellant in the amount of $500. When appellant 

was arrested a few weeks later, he had possession of another check from Magana's 

account that Magana had made payable to a third party in the amount of $200. He 

was also implicated in his cousin Richard Ruiz's unsuccessful attempts to cash 

additional stolen and forged checks.

Appellant was charged with second degree burglary, forgery (§ 470, 

subd. (d)), receiving stolen property (§ 496, subd. (a)), and other crimes. He later 

pled guilty to second degree burglary and receiving stolen property pursuant to a 

plea agreement. He was placed on probation and ordered to serve 180 days in 

county jail. The remaining charges were dismissed.

On December 5, 2015, the People filed a notice of probation violation. 

Three days later, appellant petitioned the court to reduce both of his convictions to 

misdemeanors pursuant to section 1170.18, which was enacted as part of 

Proposition 47. The court granted the petition as to the crime of receiving stolen 

property, but declined to reduce the burglary to a misdemeanor. After reviewing 

the probation report, the court stated, "It looks like the 459 in Count 2 has to do 

with the use of a fraudulent check which, in my view, is not involved with Prop. 

47." The court then added, "[b]ased on the summary of the event which was used 

as a factual basis for the defendant's plea, [the burglary charged in] Count 2 was 

entering a Chase Bank in Moorpark with a fraudulent check."

When appellant's attorney asked for further clarification, the court 

explained: "It's a burglary charge, it's not a theft charge so the amount is irrelevant.

. . . [I]t wasn't a burglary associated with a reclassification or a renumbering [of 

sections] 666 or 459 situation. [¶] And it looks to me that, in terms of [the 

receiving stolen property charged in] Count 3, it has to do with a $200 check and so 

Count 3 would appropriately, in my view, be reclassified under Proposition 47. 

And I'll make that order now." Appellant admitted the probation violation and 

probation was reinstated.
3

DISCUSSION

Appellant contends the court erred in declining to reclassify his felony 

second degree burglary conviction as a misdemeanor "shoplifting" under section 

459.5, which was enacted as part of Proposition 47. We agree.

Under Proposition 47, certain drug and theft-related offenses that 

were previously designated as felonies or "wobblers" are now punishable only as 

misdemeanors. A defendant serving a felony sentence for a crime that is now a 

misdemeanor under Proposition 47 may petition for recall of that sentence and 

request resentencing pursuant to the statutes that were added or amended by the 

proposition. (§ 1170.18; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092.)

Appellant was convicted of second degree burglary and receiving 

stolen property, both of which were treated as felonies for purposes of sentencing. 

The latter crime is now a misdemeanor under Proposition 47. Second degree 

burglary, which is defined in relevant part as the entering of a building other than a 

residence "with intent to commit grand theft or petit larceny or any felony," remains 

punishable as either a misdemeanor or a felony. (§§ 459, 461, subd. (b).) 

Proposition 47, however, also added the "new" crime of "shoplifting," which is 

defined as "entering a commercial establishment with intent to commit larceny 

while that establishment is open during regular business hours" and where the value 

of the property taken or intended to be taken does not exceed $950. (§ 459.5, subd. 

(a).) The crime of shoplifting, with certain exceptions not relevant here, is 

punishable only as a misdemeanor. The new law also provides that any act of 

shoplifting as defined in the statute "shall be charged as shoplifting" and that "[n]o 

person who is charged with shoplifting may also be charged with burglary or theft 

of the same property." (§ 459.5, subd. (b).)

Count 2 of the information alleged that appellant committed second 

degree burglary when he "unlawfully entered a commercial building . . . with the 

intent to commit larceny and any felony." That is the crime to which appellant pled 
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guilty. In declining to resentence appellant on this count, the court reasoned that he 

was "entering a Chase Bank in Moorpark with a fraudulent check." According to 

the People, we can thus infer the court found that appellant was not convicted of 

entering the bank to commit larceny, but rather to commit identity theft (§ 530.5),

which remains punishable as a misdemeanor or a felony. (See, e.g., People v. 

Walker (1969) 272 Cal.App.2d 252, 254.)

Even if we could reasonably make such an inference, the record does 

not support a finding that appellant pled guilty to an intent to commit identity theft. 

He was not charged with that crime, nor was it ever referred to at any point in the 

proceedings. Although he was separately charged with forgery, that charge was 

dismissed pursuant to his plea agreement. In any event, under Proposition 47 a 

forgery involving $950 or less is also now a misdemeanor. (§ 472, subd. (b).) The 

crime thus cannot provide the basis for a second degree burglary conviction, which 

requires the intent to commit a felony.

Section 459.5 makes clear that any act defined as shoplifting must be 

so charged, and that any person charged with that crime cannot be charged with 

burglary of the same property. Because appellant was charged with and pled guilty 

to entering the bank "with the intent to commit larceny" and no reference was made 

to any specific felony other than larceny, appellant was entitled to be resentenced 

under section 459.5.2

The order denying appellant's petition to be resentenced under section 

459.5 on his second degree burglary conviction is reversed.

NOT TO BE PUBLISHED.

 

2 The People do not assert any basis for the court to have concluded that 

appellant was ineligible for resentencing under Proposition on the ground it "would 

pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) 

Moreover, the fact that appellant was granted probation would dictate against such a 

finding. Accordingly, remand for a public safety analysis under section 1170.18 is 

unnecessary.
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PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Patricia M. Murphy, Judge

Superior Court County of Ventura

______________________________

Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief 

Deputy, Ashley Jones, Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, 

Scott A. Taryle, Supervising Deputy Attorney General, John Yang, Deputy 

Attorney General, for Plaintiff and Respondent.