People v. Franske

California Court of Appeal Nov 1, 2018 No. C081591APublished

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Holding. The court held that the defendant's commercial burglary conviction qualified as misdemeanor shoplifting under Proposition 47, but that the reduction of the underlying felony did not invalidate the associated on-bail enhancement because the defendant's judgment was final before the initiative took effect.

Issues

Whether the defendant's commercial burglary conviction qualifies as shoplifting under Penal Code section 459.5.
Whether the reduction of a secondary offense to a misdemeanor under Proposition 47 requires striking an associated on-bail enhancement when the judgment was final before the initiative's effective date.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Defendant’s conduct fits within the definition of misdemeanor shoplifting in the statute.”

“Applying Buycks, we conclude the court properly denied the request to strike defendant’s on-bail enhancement.”

“In short, while defendant was entitled to reduction of the secondary offense to misdemeanor shoplifting, that reduction of the secondary offense had no effect on defendant’s on-bail enhancement.”

Filed 11/1/18; Opinion following transfer from Supreme Court 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. OPINION ON REMAND 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.

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 originally concluded the trial court got it right on both rulings and affirmed. Thereafter, our Supreme Court granted defendant’s petition for review and ultimately transferred the case with direction for this court to vacate our prior decision and to reconsider the cause in light of the recently decided People v. Buycks (2018) 5 Cal.5th 857. Applying Buycks, we reach the same conclusion. 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

People v. Franske

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THE PEOPLE, C081591

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