People v. Brown

Filed 1/27/17 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A147671 v. JOYE LYNN BROWN, (Marin County Super. Ct. No. SC185403) Defendant and Appellant.

Defendant appeals an order denying her petition for resentencing under the Safe Neighborhoods and Schools Act (Proposition 47). (Pen. Code,1 § 1170.18, subd. (f).) The trial court denied her petition on the ground her felony offense did not fall within Proposition 47. We conclude defendant’s second degree commercial burglary conviction (§ 459), involving 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. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged on July 16, 2013, by criminal complaint with second degree commercial burglary (§ 459; count 1), and attempted possession of a narcotic by a forged prescription (§ 664; Health & Saf. Code, § 11368; count 2). The complaint also alleged an on-bail enhancement (§ 12022.1, subd. (b)) and four prior convictions within the meaning of section 1203, subdivision (e)(4). As part of a plea agreement, defendant pleaded guilty to second degree commercial burglary and admitted the on-bail

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

enhancement allegation, and count 2 was dismissed. Imposition of the sentence was suspended, and defendant was placed on probation for a period of three years. The following facts are taken from the probation report. Police responded to a report of a forged prescription at a Novato pharmacy on July, 4, 2013, where they found defendant seated in the waiting area. The doctor listed on the prescription indicated it was fraudulent and claimed a prescription pad had been stolen from his office. Defendant said she received a call from Ronald Deleon, who told her to pick up a prescription which had been dropped off by a third party. Defendant was to pay for the medications using $200 she received from Deleon, and then give Deleon the drugs. Defendant admitted she knew the prescription was forged. Deleon gave a different account, stating defendant had called him inquiring whether he wanted to buy pain medications she had on hand. Deleon said he gave Brown $200 for 40 OxyContin pills, but he denied any knowledge of the forged prescription. On November 23, 2015, defendant filed a petition to have her second degree commercial burglary conviction reduced to a misdemeanor pursuant to Proposition 47. The People opposed the petition for resentencing, and a hearing was held on the matter. The trial court denied the petition on February 16, 2016. II. DISCUSSION Defendant contends the trial court erred by denying her resentencing petition because her offense constituted shoplifting, a misdemeanor offense under Proposition 47. The Attorney General responds defendant did not meet her burden because she failed to show she had the intent to commit larceny, a requisite element of shoplifting. We agree with the Attorney General. On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, which became effective the following day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 was intended to ensure prison spending is focused on violent and serious offenders, to maximize alternatives for nonserious, nonviolent crimes, and to invest the savings generated thereby into educational, social, and mental health causes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of