People v. Plante CA2/6

Filed 6/14/16 P. v. Plante CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265683 (Super. Ct. No. 2012008585) Plaintiff and Respondent, (Ventura County)

v.

VANESSA PLANTE,

Defendant and Appellant.

Vanessa Plante appeals an order denying her petition for resentencing under the Safe Neighborhoods and Schools Act (Proposition 47). (Pen. Code. § 1170.18, subd. (f).)1 The trial court denied her petition on the ground that her felony offense did not fall within Proposition 47. We conclude that Plante's second degree commercial burglary conviction (§ 459), which involved entry into a store with the intent to obtain drugs by using a forged prescription, does not fall within the new shoplifting misdemeanor offense (§ 459.5) in Proposition 47. We affirm. FACTS In 2012, Plante entered a Rite Aid store and went to the pharmacy. She handed the "pharmacy technician" a prescription for Oxycodone pills. The technician recognized the prescription to be a forgery and called the police. Plante left the store.

1 All statutory references are to the Penal Code unless otherwise stated.

During an investigation, law enforcement obtained information that Plante's handwriting was on the prescription. She was arrested. In a felony complaint, Plante was charged with second degree commercial burglary (§ 459), a felony, (count 1); making a forged prescription (Bus. & Prof. Code, § 4324, subd. (a)) (count 2); and obtaining a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)) (count 3). For count 1, the People alleged that Plante entered the store "with the intent to commit larceny and any felony." Plante pled guilty to count 1; counts 2 and 3 were dismissed. After a 2015 probation violation hearing, she was sentenced to "two years of felony jail [time] on the [section] 459 [offense]." Plante filed a petition for resentencing under Proposition 47. The trial court denied the petition. It said, "[Plante] entered [the store] with the intent to obtain prescription drugs by fraud. There wasn't a theft involved. She was going to pay for it. She was fraudulently trying to obtain prescription medication. So I agree with the People's position that at least as far as I can tell from my reading of the statute [it] is not a shoplift as defined by [section] 459.5 or a theft as required in the amount of $950 or more." DISCUSSION Proposition 47 Plante contends the trial court erred by denying her petition for resentencing under Proposition 47. (§ 1170.18, subd. (f).) She claims her second degree commercial burglary conviction (§ 459) is not excluded from being considered as a shoplifting misdemeanor (§ 459.5) under Proposition 47. "'Under section 1170.18, a person "currently serving" a felony sentence for an offence that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47.'" (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 448.) It has long been established that under Penal Code section 459, "entry into a store, generally open to the public, with the intent to commit larceny constitutes burglary." (People v. Nguyen (1995) 40 Cal.App.4th 28, 31; § 459.)