No. F072145.

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW EUGENE CARLILE, Defendant and Appellant.

Court of Appeals of California, Fifth District.

Attorney(s) appearing for the Case

Karriem J. Baker , under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Appellant Matthew Eugene Carlile appeals from the denial of his petition for resentencing, filed pursuant to Proposition 47. Appellant contends he was eligible for resentencing on his 2014 conviction for second degree burglary (Pen. Code, §§ 459, 460, subd. (b))1 because he entered a commercial establishment with the intent to commit larceny by using a stolen credit card to purchase goods. For the reasons set forth below, we reverse and remand for further proceedings.


In March 2014, appellant and a codefendant, Leah Summers, were charged with two counts of second degree burglary, two counts of identity theft (§ 530.5, subd. (a)), one count of petty theft (§ 484, subd. (a)), and two counts of fraudulent use of an access card (§ 484g). Appellant was also accused of having two prior felony convictions. Pursuant to a plea agreement, appellant pled guilty to one count of second degree commercial burglary and one count of identity theft. The factual basis for the claim alleged appellant and his codefendant obtained a stolen credit card and used it to purchase items from a Wal-Mart store. Appellant was subsequently sentenced to an eight-month term on each count, served consecutive to a previously imposed sentence in a different case. Following enactment of Proposition 47, appellant petitioned to have his second degree commercial burglary conviction reduced to a misdemeanor.

The court denied appellant's petition. This appeal timely followed. We initially affirmed the trial court, but granted appellant's motion for rehearing following the Supreme Court's decision in People v. Gonzales (Mar. 23, 2017, S231171) 2 Cal.5th 858 (Gonzales).


Appellant argues the trial court erred by failing to recognize that entering a store with the intent to purchase goods using a stolen credit card qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47. Appellant's argument turns on whether theft by false pretenses qualifies as larceny under the shoplifting statute.

Around the time we issued our initial opinion in this matter, the Supreme Court issued its opinion in Gonzales, holding that the definition of shoplifting introduced under Proposition 47 includes nonlarcenous thefts. (Gonzales, supra, 2 Cal.5th at p. 862.) In granting appellant's motion for rehearing, we provided the People with an opportunity to file a supplemental brief if appellant's eligibility for resentencing remained contested. We received no supplemental briefing.

Under Gonzales, theft by false pretenses satisfies the requirement of the shoplifting statute that one enter a commercial establishment "with intent to commit larceny." (Gonzales, supra, 2 Cal.5th at p. 862; § 459.5.) The facts as presented on appeal show appellant attempted to fraudulently obtain money through a transaction presented to the victim as legitimate, which qualifies as theft by false pretenses. Appellant's second degree burglary conviction, therefore, qualifies for reduction.


The order is reversed and the matter remanded for further proceedings consistent with this opinion.


* Before Kane, Acting P.J., Franson, J. and Smith, J.
1. All statutory references are to the Penal Code.


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