California Cases March 02, 2020: People v. Valadez

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court , rule 8.1115(a) , prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published , except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MA075218)

APPEAL from an order of the Superior Court of Los Angeles County, Denise M. McLaughlin-Bennett, Judge. Affirmed.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Rebecca Anne Valadez appeals from the order denying her application to reclassify her felony conviction for conspiracy to commit shoplifting as misdemeanor shoplifting (Pen. Code, § 459.5) under Proposition 47. Valdez makes two related claims: (1) the prosecution was limited under section 459.5 to charging her with misdemeanor shoplifting, and (2) the felony conspiracy offense qualified as misdemeanor shoplifting under Proposition 47. For the reasons discussed below, we affirm the order.

On November 29, 2018, Raymond Aguirre drove defendant Valadez and her adult son Aaron Valadez to a Wal-Mart in the city of Lancaster. Aguirre waited in the car while Valadez and her son entered the store. Once inside, they placed pens and markers from store shelves into their backpacks and left the store without paying for them. When Valadez and her son attempted to leave in Aguirre's car, they were apprehended. The total value of the recovered pens and markers was approximately $50.

On January 23, 2019, Valadez was charged in an information with one count of felony conspiracy to commit shoplifting (§ 182, subd. (a)(1)). The information specially alleged Valadez had suffered one prior conviction for a serious or violent felony under the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and had served two separate prison terms for felonies (§ 667.5,

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subd. (b)). Valadez entered a plea of not guilty and denied the special allegations.

On March 13, 2019, Valadez entered a negotiated plea of guilty to the charge of felony conspiracy to commit shoplifting. In accordance with the plea agreement, the trial court suspended imposition of sentence, placed Valadez on one year of formal probation on condition she serve 209 days in custody with credit for time served, and ordered her probation to terminate upon her release from custody. The special allegations were dismissed on the prosecutor's motion.

On March 14, 2019, represented by counsel, Valadez filed an application to have her felony conviction designated as misdemeanor shoplifting under Proposition 47. The trial court summarily denied the application, finding the offense of felony conspiracy to commit shoplifting did not qualify as a misdemeanor under Proposition 47.

A. Standard of Review

Valadez challenges the trial court's interpretation of section 459.5 and Proposition 47, which we review de novo. ( People v . Prunty (2015) 62 Cal.4th 59, 71.) "When we interpret an initiative, we apply the same principles governing statutory construction. We first consider the initiative's language, giving the words their ordinary meaning and construing this language in the context of the statute and initiative as a whole. If the language is not ambiguous, we presume the voters intended the

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meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language. If the language is ambiguous, courts may consider ballot summaries and arguments in determining the voters' intent and understanding of a ballot measure." ( People v . Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

B. Section 459.5 Does Not Require the People to Charge Valadez's Criminal Conduct Solely as Shoplifting

Valadez argues that where, as here, a defendant commits shoplifting within the meaning of section 459.5, the prosecution is precluded by that statute from charging the defendant with conspiracy to commit shoplifting or any other alternative offense. We reject Valadez's interpretation of the shoplifting statute.

Section 459.5 provides in pertinent part: "(a) Notwithstanding Section 459, 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. . . . [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property."

In People v . Brown (2019) 32 Cal.App.5th 726 ( Brown ), the defendant made the same argument concerning his felony conviction of receiving stolen property (§ 496, subd. (a)), namely, that because he had unquestionably committed shoplifting, the prosecution was obligated to charge him with that misdemeanor

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offense rather than felony receiving stolen property. The defendant asserted he was therefore entitled to have his conviction reduced. ( Brown , supra , at p. 729.)

The Brown court engaged in a well-reasoned statutory interpretation of section 459.5, which we reproduce here: "Careful textual analysis of subdivision (a) [of section 459.5] demonstrates that in both of its first two sentences, shoplifting is contrasted with burglary. The first clause—'[n]otwithstanding Section 459'—alerts the reader that section 459.5, subdivision (a), defining shoplifting, applies to circumstances that might otherwise be governed by section 459, defining burglary. Indeed, section 459 provides that '[e]very person who enters any . . . shop . . . with intent to commit . . . petit larceny . . . is guilty of burglary.' Thus, where a person enters a shop during regular business hours with the intent to commit petit larceny, that person's conduct is described in both the definition of shoplifting in section 459.5 and the definition of burglary in section 459. [¶] Building on that context, the first sentence of section 459.5, subdivision (b), then provides that '[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting,' thereby eliminating a prosecutor's power to charge the same conduct as burglary instead. The next sentence, providing that '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property,' further narrows the scope of the prosecutor's charging discretion. (§ 459, subd. (b).) Not only is a prosecutor precluded from charging burglary instead of shoplifting, the prosecutor is also precluded from charging burglary (or theft) in addition to shoplifting." ( Brown , supra , 32 Cal.App.5th at p.730.)

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We agree with the Brown court's conclusion that the statutory language is not ambiguous. Section 459.5 requires the prosecution to charge a defendant with shoplifting alone only when the alleged criminal conduct also satisfies the elements of commercial burglary. The statute does not so limit charging discretion with respect to crimes other than burglary, such as felony receiving stolen property or felony conspiracy to commit shoplifting.

Like the defendant in Brown , Valadez relies on the California Supreme Court's decision in People v Gonzales (2017) 2 Cal.5th 858 ( Gonzales ) to support her argument. In Gonzales , the defendant pleaded guilty to one count of felony burglary, based on his entry into a bank to cash a stolen check for less than $950.00. ( Id . at p. 862.) In holding the defendant's criminal conduct constituted misdemeanor shoplifting, the Supreme Court stated, "Section 459.5, subdivision (b) requires that any act of shoplifting ' shall be charged as shoplifting' and no one charged with shoplifting 'may also be charged with burglary or theft of the same property .' . . . 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." ( Id . at p. 876.)

Valadez points to the preceding quoted sentences of Gonzales as requiring the prosecution to exclusively charge shoplifting where the elements of that misdemeanor offense are undisputedly met. However, as Brown explained, the charged offense in Gonzales was "felony burglary under section 459, the very [offense] expressly referenced and targeted in section 459.5." ( Brown , supra , 32 Cal.App.5th at p. 731.) As a matter of statutory interpretation, section 459 does not, therefore, either

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expressly or impliedly, prevent a defendant like Valadez from being charged with conspiracy to commit shoplifting. Valadez's reliance on Gonzales is misplaced.

C. Proposition 47 Does Not Authorize Reclassifying Felony Conspiracy To Commit Shoplifting to Misdemeanor Shoplifting

Valadez also contends Proposition 47 authorizes the offense of felony conspiracy to commit shoplifting to be reclassified as misdemeanor shoplifting. Proposition 47 added section 1170.18, which reduced certain theft and drug offenses to misdemeanors. (See Gonzales , supra , 2 Cal.5th at p. 863.) "These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." ( People v . Rivera (2015) 233 Cal.App.4th 1085, 1091.) Section 1170.18, subdivisions (a) and (b), permit an eligible defendant serving a felony sentence for one of the enumerated theft or drug offenses to petition for recall of sentence and resentencing under new, more lenient provisions. A defendant who has already completed a felony sentence for an offense that is now a misdemeanor may apply to have the conviction designated a misdemeanor. (§ 1170.18, subds. (f), (g); see Gonzales , supra , at p. 863.)

Valadez was not convicted of one of the enumerated offenses in section 1170.18, subdivision (a). Instead, she pleaded guilty to felony conspiracy, in violation of section 182, subdivision (a)(1), which makes it a crime for persons to "conspire" to "commit any crime." (§ 182, subd. (a)(1).) "A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense,

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together with proof of the commission of an overt act 'by one or more of the parties to such agreement' in furtherance of the conspiracy." ( People v . Morante (1999) 20 Cal.4th 403, 416.)

Generally, when the conspiracy is to commit a felony, it "shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony." (§ 182, subd. (a)(6).) Conspiracy to commit a misdemeanor is a wobbler, punishable either as a felony or misdemeanor. ( Ibid .; see People v . Osslo (1958) 50 Cal.2d 75, 97-98 [Legislature's use of words " ' "any crime" ' " in § 182, subd. (a)(1), reflects intention to include felonies and misdemeanors].)

Valadez argues that although felony conspiracy is not one of the enumerated offenses in section 1170.18, subdivision (a), the offense is subject to reclassification as misdemeanor shoplifting. Recently, the California Supreme Court concluded the mere fact that a particular offense is not expressly within the ambit of section 1170.18, subdivision (a), is not fatal to eligibility for Proposition 47 relief. The court reasoned "[t]he statute does not say that only those defendants who were convicted under the listed sections are eligible for resentencing. The statute instead says that those who are eligible (i.e., defendants serving a felony sentence who would have only have been guilty of a misdemeanor had Prop. 47 been in effect at the time of their offenses) may 'request resentencing in accordance with' the listed sections. (§ 1170.18, subd. (a).)" ( People v . Page (2017) 3 Cal.5th 1175, 1184; see also People v . Romanowski (2017) 2 Cal.5th 903.)

The issue in Page was whether misdemeanor treatment extended to a violation of Vehicle Code section 10851, which is not listed in section 1170.18, subdivision (a). Vehicle Code section 10851 criminalizes the unlawful taking or driving a

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vehicle. The Supreme Court held where the conviction is based on the theft of a vehicle, the $950 threshold of section 490.2 applies, making the theft of a vehicle worth $950 or less a misdemeanor. ( People v . Page , supra , 3 Cal.5th at pp. 1183-1187.)

In People v . Romanowski , supra , 2 Cal.5th 903, the defendant had been convicted of theft of access card account information in violation of section 484e, which is not one of the offenses listed in Proposition 47. The Supreme Court held the offense "is one of the crimes eligible for reduced punishment" under Proposition 47 ( Romanowski , supra , at p. 906), noting "the Legislature chose to place section 484e in a chapter of the Penal Code titled 'Theft.' " ( Id . at p. 912.) The court concluded, there was "no reason to assume that reasonable voters seeking to anticipate the consequences of enacting Proposition 47 would have concluded that theft of access card information worth less than $950 is a serious or violent crime exempt from Proposition 47's reach." ( Id . at p. 909.)

The California Supreme Court has not expressly determined whether Proposition 47 applies to felony conspiracy to commit shoplifting. The issue was specifically addressed by our colleagues in Division Six in People v . Martin (2018) 26

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Cal.App.5th 825. In that case, the defendant was convicted of felony conspiracy to commit petty theft based on conduct that was clearly shoplifting under section 459.5. The Martin court held Proposition 47 did not ameliorate a felony conviction for conspiracy and rejected the defendant's claim the offense should be reclassified as misdemeanor shoplifting. ( Martin , supra , at pp. 831-834.)

Among the reasons for the Martin court's holding was the nature of a conspiracy offense. It noted that courts "have long recognized the enhanced dangers of a conspiracy," in that a " 'group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law.' [Citation.]" ( People v . Martin , supra , 26 Cal.App.5th at p. 836; accord, People v . Segura (2015) 239 Cal.App.4th 1282, 1284.)

The Martin court also reasoned that a person who conspires to commit shoplifting, but is arrested prior to entering the store could not be charged with violating section 459.5 because that misdemeanor offense requires entry into the store. ( People v . Martin , supra , 26 Cal.App.5th at p. 834.) Thus, the person's conspiracy conviction could not be reclassified as a misdemeanor because the person would not have been guilty of shoplifting had Proposition 47 been in effect at the time of the offense. ( Martin , supra , at p. 834.) The Martin court observed that "Proposition 47 would lead to absurd results" if a defendant who was convicted of conspiracy were allowed a reduction to misdemeanor shoplifting because the defendant had succeeded in entering the store and committing the target offense. "Such a construction would reward [the defendant] for evading police detection and attaining the objective of the conspiracy." ( Ibid .)

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Valadez posits that People v . Huerta (2016) 3 Cal.App.5th 539, rather than Martin , is controlling. In Huerta , the trial court granted the defendant's petition to have her felony commercial burglary conviction reduced to shoplifting under Proposition 47. ( Huerta , supra , at p. 541.) On appeal, the People argued section 459.5 did not apply because the defendant "did not act 'with the sole intent to commit larceny under $950. Rather, she entered the department store in concert with [an accomplice] with the intent to commit the crime of conspiracy therein.' " ( Huerta , supra , at p. 544.) The crime of conspiracy, however, was not charged.

In rejecting the People's argument, the Huerta court explained that if the defendant had harbored the intent to conspire to commit larceny, she also necessarily had harbored the intent to commit larceny. ( People v . Huerta , supra , 3 Cal.App.5th at p. 545.) And, pursuant to section 459.5, if the defendant harbored the intent to commit larceny, the offense she committed " ' shall be charged as shoplifting' and . . . '[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.' (§ 459.5, subd. (b). . . .)" ( Huerta , supra , at p. 545.) Thus, the Huerta court concluded, had Proposition 47 been in effect at the time of the offense, the prosecution would have been required to charge the defendant with shoplifting and "could not have charged her with burglary predicated on conspiracy." ( Huerta , supra , at p. 545.)

Valadez maintains that Huerta held that conspiracy could not be charged when a defendant enters a commercial establishment to commit petty theft. However, we read Huerta as foreshadowing Gonzales's holding that the plain language of section 459.5 restricts prosecutorial discretion to charging

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shoplifting rather than commercial burglary when the elements of shoplifting are met. As the Huerta court acknowledged, "[c]onspiracy played no role in the prosecution" of the defendant. ( People v . Huerta , supra , 3 Cal.App.5th at p. 545.) Because the defendant was charged with commercial burglary, not with conspiracy, the Huerta court was not faced with deciding the applicability of Proposition 47 to conspiracy. It is axiomatic an appellate court's opinion is not authority for propositions never considered or questions not decided. ( People v . Knoller (2007) 41 Cal.4th 139, 154-155; People v . Braxton (2004) 34 Cal.4th 798, 819.) Huerta is of no assistance to Valadez.

We accordingly agree with the Martin court's analysis and conclude Proposition 47 does not apply to reduce Valadez's felony conspiracy conviction to misdemeanor shoplifting. We consider the fundamental flaw in Valadez's position as viewing conspiracy to commit shoplifting as a species of shoplifting under section 459.5, merely because in both offenses she harbored the intent to commit larceny. Instead, it has long been settled that conspiracy is a distinct offense from the commission of the offense that is the object of the conspiracy. ( People v . Campbell (1955) 132 Cal.App.2d 262, 268.) "The crime of conspiracy punishes the agreement itself and 'does not require the commission of the substantive offense that is the object of the conspiracy.' [Citation.]" ( People v . Johnson (2013) 57 Cal.4th 250, 258.) Where, as here, the conspiracy is punished more severely than the offense that is the object of the conspiracy, "[t]he rationale . . . is that a conspiracy increases the likelihood that the criminal object successfully will be attained, and 'makes more likely the commission of crimes unrelated to the original purpose for which

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the combination was formed.' [Citations.]" ( People v . Morante , supra , 20 Cal.4th at p. 416, fn. 5.)

In affirming the trial court's order, we are mindful "that the overarching purpose of Proposition 47 was to reduce penalties for certain crimes and concomitantly to save costs to the state, where it is also determined by the court that reducing the crime and accompanying sentence will not create an unreasonable risk of danger to public safety." ( People v . Williams (2018) 23 Cal.App.5th 641, 650.) We also acknowledge that the decisions in both Page and Romanowski demonstrate "the Supreme Court's view that the language of Proposition 47 should be read broadly to effectuate the voters' intent," as directed by the initiative itself. ( Williams , supra , at p. 650.) Finally, we recognize, as urged by Valadez, that there are strong policy reasons for treating felony conspiracy to commit shoplifting no more seriously than shoplifting itself, including discouraging overzealous prosecutors from abusing their charging discretion. (See People v . Martin , supra , 26 Cal.App.5th at pp. 838-839.) Nonetheless, "[b]ecause conspiracy is a distinct offense, it is a matter for legislative determination [or voter initiative] whether to punish a conspiracy to do an act more severely than the doing of the act itself." ( People v . Morante , supra , 20 Cal.4th at p. 416, fn. 5.) Thus, absent a clear expression by the Legislature or the electorate, we cannot conclude that Proposition 47 authorizes reclassifying felony conspiracy to commit shoplifting to misdemeanor shoplifting.

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The order is affirmed.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

JOHNSON, Acting P.J.

BENDIX, J.