People v. Garcia CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B261447 (Super. Ct. No. 2014025693) Plaintiff and Respondent, (Ventura County)

v.

CHRISTIAN ACOSTA GARCIA,

Defendant and Appellant.

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.

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.