People v. Sogoian CA3

Filed 6/6/16 P. v. Sogoian CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C078326

Plaintiff and Respondent, (Super. Ct. No. NCR79597)

v.

SEAN CORY SOGOIAN,

Defendant and Appellant.

Defendant Sean Cory Sogoian appeals from the trial court’s denial of his Penal Code section 1170.181 petition for resentencing. He contends that his convictions for second degree burglary (§ 459) were eligible for resentencing. We agree and shall reverse the trial court’s order concluding otherwise. We remand for additional proceedings on the petition.

1 Further undesignated statutory references are to the Penal Code.

1

BACKGROUND We dispense with a recitation of the facts because they are unnecessary to the resolution of this appeal. It suffices to say that on 14 separate occasions between January and March 2009, defendant entered a commercial business during regular business hours and wrote a check on a closed account either for cash or to purchase goods or services. One check was written on each separate occasion; the largest amount of any of the 14 checks was for $237.99. The last bad check, written on March 12, 2009, was not accepted by the business and the police were called. Defendant pleaded guilty to 14 counts of second degree burglary, among other charges. During his plea, he admitted that for each burglary count he entered a commercial building “with the intent to commit a felony.” No other relevant specifics were provided. The trial court sentenced defendant to prison. Defendant subsequently filed a petition for resentencing pursuant to section 1170.18. As relevant here, the trial court denied the petition as to the 14 counts of conviction for burglary referenced above. The court found that defendant’s conduct in committing the burglaries--entering the business with the intent to pass a bad check--did not qualify as shoplifting pursuant to section 459.5. The court also opined that because defendant’s 14 counts of conviction for burglary equated, in the aggregate, to a felony conviction for passing bad checks (§ 476a), defendant was ineligible for resentencing in any event. DISCUSSION Defendant contends the trial court erred in finding his burglary convictions ineligible for section 1170.18 resentencing. He argues that because he pleaded guilty to entering the businesses with the “intent to commit larceny and any felony,” his conduct falls squarely within the newly created statute titled “shoplifting,” section 459.5. The People counter that: “Notwithstanding the strong argument in favor of giving larceny a broad interpretation through application of section 490a, we believe that by limiting the