PEOPLE v. ANDERSON

No. F072907.

THE PEOPLE, Plaintiff and Respondent, v. SAMANTHA CHRISTINE ANDERSON, Defendant and Appellant.

Court of Appeals of California, Fifth District.


Attorney(s) appearing for the Case

Carol Foster , 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, Catherine Tennant Nieto and Kari Ricci Mueller , Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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*

Appellant Samantha Christine Anderson appeals from the denial of her application for reduction, filed pursuant to Proposition 47. Appellant contends she was eligible for reduction on two second degree burglary convictions (Pen. Code, §§ 459, 460, subd. (b))1 because she entered a commercial establishment with the intent to commit larceny by using fraudulent checks to purchase goods. For the reasons set forth below, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On December 30, 2010, appellant was charged with 48 counts related to her extensive use of identity fraud to purchase goods. Appellant ultimately pled nolo contendere to four charges—one count of identity theft (§ 530.5, subd. (a) (count 2)) and three counts of second degree commercial burglary (counts 3, 10, and 48)—and received a six-year sentence in 2011.

On June 12, 2015, appellant filed an application for reduction, identifying her 2011 sentence as one of several upon which she was eligible for reduction. Relevant to this appeal, appellant sought a reduction for counts 3 and 10, both felony second degree burglary convictions. With respect to both counts, in separate incidents appellant purchased less than $950 in goods or services from Costco utilizing checks in the name of victim Joy O. but linked to the bank account of victims David and Michelle C.

The trial court denied appellant's application, rejecting appellant's argument that use of a fraudulent check is a larcenous act. 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).

DISCUSSION

Appellant argues the trial court erred by failing to recognize that entering a store with the intent to purchase goods using fraudulent checks qualifies as entering with the intent to commit larceny as that term is properly understood with respect to shoplifting under Proposition 47. 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 the briefing following appellant's request for rehearing, the People conceded that, under Gonzales, appellant's convictions are eligible for resentencing. We agree.

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 fraudulently attempted to obtain goods and services worth less than $950 through transactions presented as legitimate, which qualifies as theft by false pretenses. Appellant's second degree burglary convictions, therefore, qualify for reduction.

DISPOSITION

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

FootNotes


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

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