People v. Franske

Filed 12/19/16 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou) ----

THE PEOPLE, C081591

Plaintiff and Appellant, (Super. Ct. No. MCYKCRF101386) v.

MICHELLE DIANNE FRANSKE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Siskiyou County, Donald R. Langford, Judge. Affirmed.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Supervising Deputy Attorney General, Larenda R. Delaini, Deputy Attorney General, for Plaintiff and Appellant.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part II of the Discussion.

1

Defendant Michelle Dianne Franske and the People both appeal from a resentencing proceeding pursuant to Proposition 47, which created a new resentencing provision, Penal Code1 section 1170.18, under which “[a] person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section („this act‟) had this act been in effect at the time of the offense may petition for a recall of sentence” and request resentencing. Here, the court granted defendant‟s request under Proposition 47 to reduce her November 2010 conviction for felony second degree commercial burglary to misdemeanor shoplifting and reduced her punishment for that offense only. In doing so, the court rejected the People‟s argument that defendant‟s conduct actually did not constitute shoplifting and also rejected defendant‟s additional request to strike the associated on-bail enhancement. Defendant and the People appeal from these rulings. We conclude the trial court got it right on both rulings and affirm. FACTUAL AND PROCEDURAL BACKGROUND Sometime shortly before 11:45 a.m. on September 22, 2010, defendant went into Dole Transportation in Yreka “to inquire about a motor home that was possibly for sale.” Dole Transportation employee M. “walked out of the main office/lobby area to contact the owner and when she returned, she found the defendant in her office.” Missing from M.‟s purse that was in her office were her wallet and cigarettes. M. “confronted the defendant by her vehicle and had her walk back into the office.” Defendant removed M.‟s wallet from her pants. M. called police, and after police arrested defendant, they found M.‟s cigarettes and the $242 that was missing from M.‟s wallet.