People v. Garner

Filed 8/19/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B266881

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA037067) v.

APRIL GARNER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Reversed and remanded with directions. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION This case presents an issue currently pending before the California Supreme Court: whether a felony conviction for second degree commercial burglary (Pen. 1 Code, § 459) is reducible to misdemeanor shoplifting (§ 459.5) if the defendant entered the commercial establishment with intent to commit theft by false pretenses. (See People v. Gonzalez, review granted February 17, 2016, S231171.) Here, the trial court found that appellant April Garner entered a grocery store with intent to commit theft by false pretenses, and determined that appellant was statutorily ineligible to have her felony burglary conviction reduced to a misdemeanor. For the reasons set forth below, we conclude that appellant was eligible for resentencing. Accordingly, we reverse and remand for further proceedings. FACTUAL BACKGROUND & PROCEDURAL HISTORY On November 8, 2006, appellant entered a grocery store and attempted to purchase items with a forged $100 traveler’s check. A store employee recognized the check as counterfeit, and refused to accept it. Subsequently, appellant was arrested. On March 25, 2014, appellant pled no contest to two felony counts of forgery (§§ 470, subd. (d), 475, subd. (a)) and one felony count of second degree commercial burglary (§ 459). The trial court suspended imposition of sentence and granted appellant five years of formal probation. Following the passage of Proposition 47 -- which reduced certain theft- related offenses to misdemeanors -- appellant filed a petition to recall her sentence with respect to the felony forgery counts. The trial court granted appellant’s motion to reclassify her felony forgery counts to misdemeanors, and resentenced appellant to summary probation as to those offenses. 1 All further statutory citations are to the Penal Code, unless otherwise stated.