People v. Brayton ( 2018 )


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  • Filed 7/31/18
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    THE PEOPLE,                                          2d Crim. No. B284408
    (Super. Ct. No. 2016005604)
    Plaintiff and Respondent,                         (Ventura County)
    v.
    KARA TAYLOR BRAYTON,
    Defendant and Appellant.
    Defendant enters a department store and removes the price
    tags from two items for sale worth slightly over $100. She then
    tells store personnel she previously purchased the items and is
    returning them for a refund. She uses a stolen credit card to
    falsely identify herself. Defendant eventually pleads guilty to
    identity theft, a felony.
    We conclude defendant is eligible for relief under
    Proposition 47.
    Kara Taylor Brayton appeals an order denying her
    “motion” for resentencing under Proposition 47, the Safe
    Neighborhoods and Schools Act. (Pen. Code, § 1170.18.)1 She
    previously pled guilty to identity theft (§ 530.5, subd. (a)), a
    1   All statutory references are to the Penal Code.
    felony. In her motion for Proposition 47 relief, Brayton claims
    her “conduct” in committing that identity theft offense met “the
    elements of shoplifting” under Proposition 47 and her conviction
    should be reduced to a misdemeanor. We agree, reverse and
    remand.
    FACTS
    On February 5, 2016, Brayton entered a Kohl’s store in
    Simi Valley. She took a watch from the jewelry department and
    removed the security tag. She also “removed a bra from a
    hang[e]r and balled it up in her arm.”
    Brayton then went to the store’s customer service
    department to falsely claim that she had previously purchased
    these items and was seeking a store credit in the amount of
    $107.07. To obtain this credit, Brayton presented a California
    driver’s license which belonged to Ambar Lechuga. Someone had
    previously stolen Lechuga’s license.
    Brayton was detained and questioned by two of the store’s
    “loss prevention employees.” During questioning, Brayton was
    unable to spell Lechuga’s name or provide the year Lechuga was
    born.
    One of the store’s security employees called the police.
    Brayton “fled from the store.” When contacted by police, Brayton
    said she “did something wrong and did not have an explanation
    as to why she tried to shoplift.”
    In the felony information, the People alleged Brayton
    committed “the crime of IDENTITY THEFT-OBTAIN CREDIT
    WITH OTHER’S IDENTIFICATION, in violation of Penal Code
    530.5(a), a Felony” (count 1), and petty theft by taking Kohl’s
    property, a misdemeanor (§ 484, subd. (a)) (count 2).
    Brayton pled guilty to both counts and admitted she “did
    what is alleged in [the information].”
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    On May 18, 2017, Brayton filed a motion to reduce count 1
    to a misdemeanor pursuant to Proposition 47. She relied on
    People v. Gonzales (2017) 
    2 Cal.5th 858
     as authority for the
    motion. She claimed that under Gonzales she “can only be
    charged and sentenced as a misdemeanant for her shoplifting
    conduct.”
    The People opposed the motion, claiming “[v]iolations of
    section 530.5(a) are not eligible for reduction under Proposition
    47.”
    The trial court denied the motion. It agreed with the
    People’s position that Brayton’s conviction was not an eligible
    crime for Proposition 47 resentencing. The court said, “I don’t
    think Gonzales applies.”
    DISCUSSION
    Eligibility for Resentencing Under Proposition 47
    Proposition 47 reduces “penalties for certain theft and drug
    offenses by amending existing statutes.” (People v. Gonzales,
    supra, 2 Cal.5th at p. 863.) Its goal is to “reduce the number of
    nonviolent offenders in state prisons, thereby saving money and
    focusing prison on offenders considered more serious under the
    terms of the initiative.’” (Id. at p. 870.) “Section 1170.18 now
    permits a defendant serving a sentence for one of the enumerated
    theft or drug offenses to petition for resentencing under the new,
    more lenient, provisions.” (Id. at p. 863.) If the felony offense
    committed “by an eligible defendant would have been a
    misdemeanor under [Proposition 47], resentencing is required
    unless, ‘the court, in its discretion, determines that resentencing
    the petitioner would pose an unreasonable risk of danger to
    public safety.’” (Ibid.)
    Proposition 47 added a new misdemeanor shoplifting crime.
    (People v. Gonzales, supra, 2 Cal.5th at p. 863.) If a defendant’s
    3
    conduct in committing the prior felony falls within the definition
    of this new crime, he or she may be entitled to resentencing relief.
    The new provision, section 459.5, provides that “shoplifting is
    defined as entering a commercial establishment with intent to
    commit larceny while that establishment is open during regular
    business hours, where the value of the property that is taken or
    intended to be taken does not exceed nine hundred fifty dollars
    ($950).” In Gonzales, our Supreme Court held that a “defendant’s
    act of entering a bank to cash a stolen check for less than $950,
    traditionally regarded as a theft by false pretenses . . . , now
    constitutes shoplifting under [Proposition 47].” (Id. at p. 862.)
    That consequently allows a defendant to “petition for
    misdemeanor resentencing.” (Ibid.)
    Gonzales rejected the People’s claim that if a defendant’s
    act could be considered shoplifting under Proposition 47, the
    defendant could lose eligibility for resentencing if that act also
    could be charged under another Penal Code provision. It said
    under Proposition 47, “[a] defendant must be charged only with
    shoplifting when the statute applies. . . . It expressly prohibits
    alternate charging and ensures only misdemeanor treatment for
    the underlying described conduct.” (People v. Gonzales, supra, 2
    Cal.5th at p. 876.)
    The court also rejected the claim that for consumer
    protection, identity theft crimes fall outside the scope of
    Proposition 47. In People v. Romanowski (2017) 
    2 Cal.5th 903
    ,
    913, it said there is no “indication that voters implicitly sought to
    restrict Proposition 47’s scope based on unstated expectations
    about consumer protection.”
    In People v. Garrett (2016) 
    248 Cal.App.4th 82
    , 84, the trial
    court denied a Proposition 47 petition and found the “defendant
    was not eligible for resentencing because he had entered the
    4
    convenience store with the intent to commit felony identity theft
    under Penal Code section 530.5.”
    The Court of Appeal reversed the denial of that petition. It
    held that “entering a commercial establishment with the intent to
    use a stolen credit card to purchase property valued at no more
    than $950 constitutes shoplifting,” a misdemeanor (§ 459.5),
    eligible for Proposition 47 resentencing. (People v. Garrett, supra,
    248 Cal.App.4th at p. 84.) It said, “[T]he dispositive issue is
    whether [the defendant’s] act fell within the definition of
    ‘shoplifting’ under Section 459.5.” (Id. at p. 88, italics added.)
    “[W]e must interpret Section 459.5 as if it defined shoplifting to
    mean ‘entering a commercial establishment with intent to
    commit theft.” (Ibid.) It noted that under section 484 the
    definition of theft includes taking property of another “‘by any
    false or fraudulent representation or pretense.’” (Id. at p. 89.)
    The court said, “Using another person’s credit card to purchase
    property without the card owner’s consent is ‘theft’ under this
    definition.” (Ibid.)
    In People v. Jimenez (2018) 
    22 Cal.App.5th 1282
    , review
    granted July 25, 2018, S249397, a defendant entered a
    commercial establishment to cash stolen checks valued at less
    than $950. We held a defendant convicted of identity theft under
    section 530.5, subdivision (a) was eligible for Proposition 47
    relief. (See also People v. Hoffman (2015) 
    241 Cal.App.4th 1304
    .)
    Here the facts of Brayton’s identity theft crime are similar
    to Gonzales, Garrett and Jimenez. Brayton used a stolen driver’s
    license belonging to another person to obtain a $107.07 store
    credit. She obtained the credit by the false representation that
    she was the person named in that driver’s license. In Gonzales,
    entering a bank to cash a stolen check fell within the purview of
    the resentencing provision. In Garrett, using another person’s
    5
    credit card to purchase property constituted misdemeanor
    shoplifting under Proposition 47. Similarly, here it was Brayton’s
    use of another person’s driver’s license that allowed her to obtain
    the credit.
    The People claim the facts here and those of Gonzales and
    Garrett are not identical. But that is a distinction without a
    difference in result. Notwithstanding some factual differences,
    Gonzales, Garrett and the instant case all fall within Proposition
    47’s broad definition of shoplifting. The trial court erred in ruling
    that Brayton’s conviction fell outside the scope of Proposition 47.
    The People correctly note that in ruling on Brayton’s
    motion, the trial court did not make any “determination as to the
    amount of the loss.” Consequently, a remand is required.
    DISPOSITION
    The order denying the Proposition 47 motion is reversed.
    The matter is remanded to the trial court for further proceedings
    on that motion.
    CERTIFIED FOR PUBLICATION.
    GILBERT, P. J.
    We concur:
    PERREN, J.
    TANGEMAN, J.
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    Patricia M. Murphy, Judge
    Superior Court County of Ventura
    ______________________________
    Todd W. Howeth, Public Defender, William Quest, Senior
    Deputy Public Defender, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Gerald A. Engler, Chief
    Assistant Attorney General, Lance E. Winters, Senior Assistant
    Attorney General, Susan Sullivan Pithey, Supervising Deputy
    Attorney General, Michael J. Wise, Deputy Attorney General, for
    Plaintiff and Respondent.
    7
    

Document Info

Docket Number: B284408

Filed Date: 7/31/2018

Precedential Status: Precedential

Modified Date: 7/31/2018