People v. Gonzales
- Proceeding
- appeal from an order
- Trial court
- Superior Court of Imperial County · No. JCF32479
- Trial judge
- L. Brooks Anderholt
- Outcome
- affirmed — Affirmed.
- Area
- delinquency
- Panel
- McINTYRE (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court denied Gonzales's petition to recall his felony sentence and reduce his second-degree commercial burglary conviction to a misdemeanor, finding his conduct did not constitute shoplifting under Penal Code section 459.5 and that section 459 was not eligible for resentencing under section 1170.18. The Court of Appeal affirmed, holding that the taking of money via false representation was consensual and thus not larceny, and that the express list of offenses in section 1170.18 excluded section 459.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for recall of sentence based on the argument that the offense qualified as shoplifting under Penal Code section 459.5.“Based on our independent review, we reject Gonzales's argument because as defined by section 459.5, the offense of shoplifting requires an "intent to commit larceny," which was not present in this case.” | de novo | correct | agree with court The appellate court correctly applied the definition of larceny, which requires a trespassory taking without consent. By relying on People v. Williams, the court accurately determined that obtaining money through false representations (cashing forged checks) involves a consensual transfer of title, distinguishing it from the non-consensual taking required for larceny and, consequently, shoplifting under section 459.5. |
Denial of petition for recall of sentence based on the argument that Penal Code section 459 should be included in the resentencing provisions of section 1170.18.“Section 1170.18's failure to include section 459 in this list demonstrates an intent to exclude it from the resentencing provisions of the Act. Thus, Gonzales was not eligible for resentencing based on section 459.” | de novo | correct | agree with court The court correctly applied the canon of construction expression unius est exclusion alterius. Since section 1170.18 explicitly lists specific Penal Code sections eligible for resentencing and omits section 459, the legislative intent to exclude commercial burglary from the Proposition 47 resentencing scheme is clear. |
Authorities
- relied: People v. Williams (2013) 57 Cal.4th 776 — Larceny requires a trespassory taking without the property owner's consent; a taking induced by false representation where the owner consents to the transfer is not larceny.
- relied: People v. Gomez (2008) 43 Cal.4th 249 — Larceny requires the taking of another's property with intent to steal, involving both caption (possession) and asportation (carrying away).
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reclassified certain crimes and established the procedure for petitioning for recall and modification of prior convictions under section 1170.18.
- relied: People v. Guillen (2013) 212 Cal.App.4th 992 — Statutes should be construed with reference to the whole system of law, and the rule of expression unius est exclusion alterius applies when exceptions are specified.
- relied: People v. Gray (1979) 91 Cal.App.3d 545 — The inclusion of specific crimes in a statutory list demonstrates legislative intent to exclude other crimes not listed.
- relied: People v. Love (2005) 132 Cal.App.4th 276 — Statutory construction is a question of law decided independently by the appellate court.
The appellate opinion: sound — The opinion is sound because it correctly applies the established legal definition of larceny from People v. Williams to distinguish the defendant's fraud-based taking from the non-consensual taking required for shoplifting. It also correctly applies standard canons of statutory construction to interpret the exclusive list of offenses in section 1170.18.
The trial court denied Giovanni Gonzales's Proposition 47 petition under Penal Code section 1170.18 to reduce his felony second degree commercial burglary conviction (entering a bank and cashing two forged $125 checks) to a misdemeanor, reasoning that the conduct was not shoplifting under section 459.5 because there was no larceny and that section 459 is not a listed resentencing offense. The Court of Appeal affirmed, holding on independent review that 'larceny' in section 459.5 requires a nonconsensual trespassory taking under People v. Williams, that the bank consented to hand over the money, and that section 459 is omitted from section 1170.18's enumerated list and therefore ineligible.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.18 petition on the ground that Gonzales's conduct did not constitute shoplifting under section 459.5 because entering a bank to cash forged checks lacked an 'intent to commit larceny'“As in Williams, the taking in this case was consensual.” | de novo | correct (statutory interpretation) | disagree with court The court read 'larceny' in section 459.5 in its narrow common-law sense of a trespassory taking, relying on People v. Williams, which construed the 'felonious taking' element of robbery. But Williams itself discusses Penal Code section 490a, which directs that wherever a statute refers to 'larceny' it shall be read as 'theft,' and Williams distinguished robbery precisely because the robbery statute uses 'felonious taking' rather than 'larceny.' Burglary law has long held that entry with 'intent to commit larceny' under section 459 includes intent to commit theft by false pretenses (People v. Parson; People v. Nguyen), and section 459.5 borrows that same phrase from section 459. The court did not address section 490a or the burglary cases, and the California Supreme Court subsequently granted review and reversed on exactly this ground, holding that cashing forged checks under $950 at a bank is shoplifting under section 459.5. |
Denial of request to reduce the section 459 commercial burglary conviction to a misdemeanor on the theory that section 1170.18 impliedly covers section 459 offenses involving property under $950“However, section 459 is not listed in section 1170.18” | de novo | correct | agree with court Section 1170.18, subdivision (a) enumerates the specific code sections eligible for resentencing, and section 459 is not among them; applying expressio unius, the court reasonably declined to read an unlisted offense into the list. As framed by Gonzales (resentencing under section 459 itself, as opposed to redesignation as section 459.5 shoplifting), this holding is defensible. The flaw in the opinion lies in the first ruling, since a section 459 conviction whose conduct now falls within section 459.5 is eligible through that listed section. |
Authorities
- misapplied: People v. Williams (2013) 57 Cal.4th 776 — Robbery's 'felonious taking' element requires a nonconsensual, trespassory taking and is not satisfied by theft by false pretenses; Williams expressly noted that section 490a's substitution of 'theft' for 'larceny' did not reach robbery because the robbery statute does not use the word 'larceny.' The court applied Williams's robbery analysis to a statute that does use 'larceny' without addressing section 490a.
- relied: People v. Gomez (2008) 43 Cal.4th 249 — Larceny requires taking another's property with intent to steal and carry it away, comprising caption and asportation.
- relied: People v. Rivera (2015) 233 Cal.App.4th 1085 — Proposition 47 reclassified certain theft and drug offenses as misdemeanors and created a petition procedure under section 1170.18 for qualifying defendants.
- relied: People v. Love (2005) 132 Cal.App.4th 276 — Statutory construction is a question of law reviewed independently.
- relied: People v. Guillen (2013) 212 Cal.App.4th 992 — Expressio unius est exclusio alterius: where a statute specifies exceptions, others are not implied absent clear legislative intent; statutes are construed with reference to the whole scheme.
- relied: People v. Gray (1979) 91 Cal.App.3d 545 — Enumeration of specific crimes as exceptions to an enhancement shows intent to exclude unlisted crimes.
- missed: People v. Parson (2008) 44 Cal.4th 332 — For burglary under section 459, the 'intent to commit larceny' element is satisfied by intent to commit theft, including theft by false pretenses, in light of the consolidation of theft offenses and section 490a.
- missed: People v. Nguyen (1995) 40 Cal.App.4th 28 — Entry into a building with intent to commit theft by false pretenses constitutes burglary; 'larceny' in section 459 is read as 'theft' under section 490a.
The appellate opinion: questionable — The court imported the robbery-specific trespassory-taking analysis of Williams into section 459.5 without confronting Penal Code section 490a, which Williams itself discussed and which directs that statutory references to 'larceny' be read as 'theft,' and without addressing settled burglary authority holding that 'intent to commit larceny' in section 459 includes theft by false pretenses. Because section 459.5 tracks section 459's language, the result rests on a misreading of the law, and the California Supreme Court later reversed on this ground; only the secondary expressio unius holding about section 459 not being listed is defensible as framed.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
Filed 11/12/15 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067554
Plaintiff and Respondent, v. (Super. Ct. No. JCF32479)
GIOVANNI GONZALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County, L. Brooks Anderholt, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Christen E. Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
Giovanni Gonzales pleaded guilty to second degree commercial burglary in violation of Penal Code section 459 (all statutory references are to this code). The trial court denied Gonzales's petition for recall of his felony sentence. He appeals, contending the trial court erred in denying his petition because: (1) the conduct underlying his offense meets the statutory definition of misdemeanor shoplifting under section 459.5, a crime added in 2014 by Proposition 47, the Safe Neighborhoods and Schools Act (the Act); and (2) section 1170.18 impliedly applies to convictions pursuant to section 459.
We reject Gonzales's arguments and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, Gonzales took two bank checks from his grandmother. He went into a Bank of America twice during regular business hours and cashed the checks.
The checks were for $125 each, written payable to Gonzales, and signed with his grandmother's name. Gonzales's grandmother stated she did not sign the checks and Gonzales did not have permission to use her checks.
The District Attorney charged Gonzales with second degree commercial burglary in violation of section 459 and forgery. Gonzales pleaded guilty to the commercial burglary and the District Attorney agreed to dismiss the forgery charge. The trial court suspended imposition of sentence, placed Gonzales on formal probation for three years, and ordered him to serve 50 days in county jail with credit for time served.
In January 2015, Gonzales petitioned for recall of his sentence and requested to have his felony conviction reduced to a misdemeanor pursuant to section 1170.18.
Gonzales argued that his offense qualified as "shoplifting" under section 459.5.
Alternatively, Gonzales argued the court should liberally construe the Act, which would permit it to change his felony to a misdemeanor under section 459. The trial court denied Gonzales's petition, reasoning that his offense did not qualify as "shoplifting" under 2 section 459.5 because there was no larceny. The court also rejected Gonzales's request to reduce his commercial burglary to a misdemeanor.
DISCUSSION
I. Shoplifting Under Section 459.5 Gonzales contends the trial court should have granted his petition for recall and resentencing because his offense met the statutory definition of shoplifting under section 459.5. We disagree.
On November 4, 2014, the voters enacted Proposition 47, the Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) The Act reclassified certain theft- and drug-related crimes from felonies to misdemeanors unless they were committed by ineligible defendants. (Id. at p. 1091.) It also established a procedure for qualifying defendants to petition for recall and modification of their prior convictions and sentences. (§ 1170.18, subd. (a).)
Among its reclassifying provisions, Proposition 47 added a new crime, shoplifting (§ 459.5). Section 459.5 provides:
"(a) . . . 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except [when the defendant has a disqualifying prior conviction].
"(b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." (Italics added.)
3 Gonzales contends that although his offense does not appear to meet the colloquial definition of "shoplifting," his actions do meet the statutory definition as set forth in section 459.5. Specifically, he asserts that his acts of entering a Bank of America branch, a commercial establishment, during regular open business hours, with the intent to commit larceny, and taking away $250 in cash meets the definition of shoplifting in section 459.5. Based on our independent review, we reject Gonzales's argument because as defined by section 459.5, the offense of shoplifting requires an "intent to commit larceny," which was not present in this case. (See People v. Love (2005) 132 Cal.App.4th 276, 284 ["Statutory construction is a question of law which we decide independently."].)
The meaning of "larceny" is clear and unambiguous. "Larceny requires the taking of another's property, with the intent to steal and carry it away. [Citation.] 'Taking,' in turn, has two aspects: (1) achieving possession of the property, known as 'caption,' and (2) carrying the property away, or 'asportation.' " (People v. Gomez (2008) 43 Cal.4th 249, 254-255, fn. omitted.) "[L]arceny requires a 'trespassory taking,' which is a taking without the property owner's consent." (People v. Williams (2013) 57 Cal.4th 776, 788 (italics added) (Williams).)
In Williams, our high court considered the definition of larceny as related to the crime of robbery. In that case, the defendant used a credit card, which was encoded with a third party's credit card information, to purchase gift cards at Walmart. (Williams, supra, 57 Cal.4th at p. 780.) In discussing the " 'felonious taking' " requirement of robbery, the court found that the defendant did not commit larceny because his taking was consensual. (Id. at p. 788.) The court explained, "Walmart, through its store 4 employees, consented to transferring title to the gift cards to defendant. Defendant acquired ownership of the gift cards through his false representation, on which Walmart relied, that he was using valid payment cards to purchase the gift cards. Only after discovering the fraud did the store seek to reclaim possession. Because 'felonious taking,' as required in California's robbery statute [citation], must be without the consent of the property owner, or 'against his will' [citation], and Walmart consented to the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking, and hence did not commit robbery." (Id. at pp. 788-789.)
As in Williams, the taking in this case was consensual. Bank of America consented to transferring title and possession to $250 to Gonzales. Gonzales used false representations that he was cashing valid checks made out to him to obtain the money from Bank of America. Relying on those representations, which the bank must have believed to be true, it consented to giving Gonzales the money. Larceny requires a taking without consent (Williams, supra, 57 Cal.4th at p. 788). That element was not satisfied in this case.
Because the crime of shoplifting in section 459.5 requires an "intent to commit larceny," Gonzales's offense did not meet the statutory definition of shoplifting.
II. Resentencing Based on Section 459 Gonzales contends the trial court should have resentenced him to a misdemeanor under section 459. Although Gonzales recognizes that section 459 is not expressly specified in section 1170.18, he contends that because that section allows for 5 resentencing for other theft offenses involving property under the threshold of $950, it also permits resentencing of section 459 offenses. We reject this argument.
The Act allows a defendant to petition for resentencing if he or she is serving a sentence for a crime that the Act now designates as a misdemeanor. (§ 1170.18, subd.
(a); Rivera, supra, 233 Cal.App.4th at p. 1092.) Section 1170.18, subdivision (a), identifies those crimes by statute: "Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act."
The statutory construction rule of expression unius est exclusion alterius "provides that where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed in the absence of a clear legislative intent to the contrary.
[Citations.] 'A statute should be construed with reference to the whole system of law it is enacted to govern and the scheme should be interpreted so that sections are harmonized with one another.' " (People v. Guillen (2013) 212 Cal.App.4th 992, 996; see People v. Gray (1979) 91 Cal.App.3d 545, 551 [the inclusion of only four crimes as exceptions to the sentence enhancement for great bodily injury demonstrated the legislative intent to exclude other crimes from the list].)
Here, Gonzales was convicted of second degree commercial burglary in violation of section 459, a felony. He contends that the court should have resentenced him to a misdemeanor under that section. However, section 459 is not listed in section 1170.18, the resentencing statute. Section 1170.18, however, does include several theft-related offenses that qualify for misdemeanor sentencing if the property in question had a value 6 less than $950. (§§ 459.5 [shoplifting], 473 [forgery], 476a [issuing checks without sufficient funds], 490.2 [petty theft], 496 [receiving stolen property].) Section 1170.18's failure to include section 459 in this list demonstrates an intent to exclude it from the resentencing provisions of the Act. Thus, Gonzales was not eligible for resentencing based on section 459.
DISPOSITION
The order is affirmed.
MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- People v. Rivera H041742 · 2015-01-29
- The People v. Williams S195187 · 2013-08-26
- People v. Guillen No. B239163 · 2013-01-15
- People v. Gomez S140612 · 2008-04-10
- People v. Love A105802 · 2005-08-29
- People v. Gray Crim. 18154 · 1979-04-04