P. v. Case

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Filed 5/31/18 P. v. Case CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Appellant,
v.
TIMOTHY EUGENE CASE,
Defendant and Respondent.
2d Crim. No. B283838
(Super. Ct. No. 2016045507)
(Ventura County)
The People appeal the trial court’s order reducing Timothy
Eugene Case’s nine felony convictions for identity theft under
Penal Code section 530.5, subdivision (a)1 to misdemeanor
shoplifting under section 459.5, subdivision (a). They argue that
section 459.5, enacted as part of Proposition 47 (§ 1170.18), does
not apply to section 530.5 identity theft offenses involving $950 or
less, and that the trial court erred in reclassifying them as
misdemeanors. We recently rejected this argument in People v.
Jimenez (May 8, 2018, B283858) _ Cal.App.5th _ [2018 Cal.App.
1 All statutory references are to the Penal Code.

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Lexis 410] (Jimenez). For the reasons set forth in that opinion,
we affirm.
FACTS AND PROCEDURAL HISTORY
On December 4, 2016, Case entered five different stores in
Simi Valley and used a stolen credit card to purchase e-cigarette
devices, a digital scale, Ziploc baggies, alcohol, two packs of
cigarettes, batteries, food and two prepaid cell phones. The total
cost of the items was $849.17. Case knew the credit card was
stolen, but denied stealing it from the victim’s car.
The People charged Case with seven felony violations of
section 530.5, subdivision (a) -- the unauthorized use of the
personal identifying information of another. They also charged
him with three felony forgery violations (§ 470, subd. (a)), and
alleged that he had suffered two prior strike convictions for first
degree residential burglary and four prison priors. Case was held
to answer as charged. The magistrate denied his motion to
reduce the felony charges to misdemeanors.
The trial court granted Case’s Romero2 motion to strike the
first degree residential burglary convictions. The People
subsequently filed an amended information charging Case with
nine felony identity theft violations (§ 530.5, subd. (a)) and
alleging the same prior convictions and prison priors. Case pled
guilty to the nine felony charges and moved to reduce the
convictions to misdemeanors pursuant to Proposition 47 and
People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). Case asserted
his conduct constituted misdemeanor shoplifting under section
459.5, subdivision (a), as interpreted by our Supreme Court in
Gonzales.
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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The trial court granted Case’s motion over the People’s
objection. It stated that it had reviewed Gonzales and People v.
Romanowski (2017) 2 Cal.5th 903 (Romanowski), and concluded
that under the reasoning and holding of those two cases it was
“obligated to declare Counts 1 through 9 as misdemeanors.” The
court accordingly amended those counts to reflect violations of
section 459.5.
Following reclassification of the convictions, the trial court
sentenced Case to the full six-month term on each of the nine
counts, “consecutive to one another and consecutive to each other
for a total of four [and] 1/2 years in the county jail.” The People
appeal.
DISCUSSION
Proposition 47
California voters enacted Proposition 47 in 2014. (Jimenez,
supra, _ Cal.App.5th at p. _ [2018 Cal.App. Lexis 410 at p. *4].)
It “reduced certain theft-related offenses from felonies or
wobblers to misdemeanors, unless the offenses were committed
by certain ineligible offenders.” (Ibid.)
“Proposition 47 added several new provisions, including
section 459.5, which created the crime of shoplifting.” (Jimenez,
supra, _ Cal.App.5th at p. _ [2018 Cal.App. Lexis 410 at p. *5].)
Section 459.5, subdivision (a) provides: “Notwithstanding
[s]ection 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.” Section 459.5, subdivision (b) expressly limits
charging on shoplifting: “‘“Any act of shoplifting as defined in

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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.”’” (Jimenez, at p. _ [2018 Cal.App.
Lexis 410 at pp. *5-6]; see Gonzales, supra, 2 Cal.5th at p. 863.)
No Error in Reducing Case’s
Felony Convictions to Misdemeanor Shoplifting
The People contend Case is ineligible for reduction of his
felony convictions to misdemeanor shoplifting because his
offenses constitute identity theft (§ 530.5, subd. (a)), which
remains a felony under Proposition 47. We disagree.
In Jimenez, the defendant entered a commercial check-
cashing business and cashed two stolen checks valued at less
than $950 each. (Jimenez, supra, _ Cal.App.5th at p. _ [2018
Cal.App. Lexis 410 at p. *2].) The People charged Jimenez with
two counts of felony identity theft. (§ 530.5, subd. (a).) After a
jury convicted Jimenez of both charges, he moved to reduce the
convictions to misdemeanors. (Jimenez, at p. _ [pp. *2-3].) The
trial court granted the motion, and the People appealed. (Id. at
p. _ [pp. *3-4].)
We affirmed the trial court’s order. Relying upon Gonzales,
Romanowski and People v. Garrett (2016) 248 Cal.App.4th 82
(Garrett), we concluded that “Jimenez met his burden of
establishing that his convictions qualified under Proposition 47
as misdemeanor shoplifting offenses.” (Jimenez, supra, _
Cal.App.5th at p. _ [2018 Cal.App. Lexis 410 at p. *15].)
First, we analyzed Garrett, which addressed the interplay
between felony identity theft (§ 530.5) and section 459.5.
(Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App. Lexis 410 at
pp. *6-7].) The defendant in Garrett entered a store and
attempted to purchase gift cards with a stolen credit card.
(Garrett, supra, 248 Cal.App.4th at p. 84.) After Garrett pled no

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contest to commercial burglary, he petitioned for resentencing
under Proposition 47. (Garrett, at p. 86.) The trial court denied
the petition, but the Court of Appeal reversed, rejecting the
Attorney General’s argument that because Garrett intended to
commit felony identity theft, the shoplifting statute did not apply.
(Id. at pp. 86-90.) The court explained: “[E]ven assuming
[Garrett] intended to commit felony identity theft, he could not
have been charged with burglary under . . . section 459 if the
same act -- entering a store with the intent to purchase
merchandise with a stolen credit card -- also constituted
shoplifting under [s]ection 459.5.” (Id. at p. 88.) Based on this
reasoning, Garrett concluded that the use of a stolen credit card
to purchase merchandise valued at $950 or less constitutes
shoplifting under section 459.5. (Id. at p. 90; see Jimenez, at p. _
[p. *7].)
Next, we discussed the Supreme Court’s decision in
Gonzales. (Jimenez, supra, _ Cal.App.5th at p. _ [2018 Cal.App.
Lexis 410 at pp. **7-9].) The defendant in Gonzales had entered
a bank and cashed two checks valued at less than $950 each.
(Gonzales, supra, 2 Cal.5th at p. 862.) After pleading guilty to
second degree burglary, Gonzales petitioned for misdemeanor
resentencing under Proposition 47. (Gonzales, at p. 862.) The
trial court denied his petition, the Court of Appeal affirmed, but
the Supreme Court reversed. (Ibid.) The court concluded that
the electorate “intended that the shoplifting statute apply to an
entry to commit a nonlarcenous theft. Thus, [Gonzales’s] act of
entering a bank to cash a stolen check for less than $950,
traditionally regarded as a theft by false pretenses rather than
larceny, now constitutes shoplifting under the statute. [Gonzales]
may properly petition for misdemeanor resentencing under . . .

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section 1170.18.’” (Ibid., italics added; see Jimenez, at p. _ [p.
*7].)
The Supreme Court rejected the Attorney General’s
argument that even if Gonzales did engage in shoplifting, he was
ineligible for resentencing because he also entered the bank
intending to commit felony identity theft under section 530.5,
subdivision (a). (Gonzales, supra, 2 Cal.5th at p. 876.) The
Attorney General claimed that Gonzales’s felony burglary
conviction could have been based on his separate intent to
commit felony identity theft. (Ibid.) Relying on Garrett,
Gonzales responded that section 459.5 precluded such alternate
charging. (Gonzales, at p. 876.) Agreeing that Gonzales “has the
better view,” the Supreme Court determined that “[s]ection 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.’
(Italics added.) 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.” (Ibid.)
Finally, we noted the Supreme Court’s view that obtaining
a person’s identifying information in the course of a theft is not
excluded from Proposition 47 relief. (Romanowski, supra, 2
Cal.5th at pp. 913-914; see Jimenez, supra, _ Cal.App.5th at p. _
[2018 Cal.App. Lexis 410 at pp. *10-11].) Specifically, the court
rejected the Attorney General’s theory that the offense of theft of
an access card (§ 484e) was enacted to protect consumers and
thus should be exempt from the petty theft statute (§ 490.2) in
Proposition 47. (Romanowski, at pp. 913-914.)
Just as Romanowski declined to exempt theft of an access
card from the ambit of section 490.2, we rejected the People’s

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request to exempt identity theft under section 530.5, subdivision
(a) from the purview of shoplifting under section 459.5. (Jimenez,
supra, _ Cal.App.5th at p. _ [2018 Cal.App. Lexis 410 at p.*11].)
Noting that Jimenez’s conduct was identical to Gonzales’s
conduct, we concluded they both committed “‘theft by false
pretenses,’” which qualifies as shoplifting under section 459.5,
subdivision (a). (Jimenez, at p. _ [p. *9].) As Gonzales clarified,
“[a] defendant must be charged only with shoplifting when
[section 459.5] applies.” (Gonzales, supra, 2 Cal.5th at p. 876.)
The same rationale applies here. Case’s conduct is similar
to Gonzales’s conduct and nearly identical to Garrett’s conduct.
Case entered several commercial establishments during business
hours for the purpose of using a stolen credit card to purchase
merchandise worth less than $950. (See Garrett, supra, 248
Cal.App.4th at p. 84.) In so doing, he committed “theft by false
pretenses,” which “now constitutes shoplifting under [section
459.5, subdivision (a).]” (Gonzales, supra, 2 Cal.5th at pp. 862,
868-869 [shoplifting as defined in section 459.5, subdivision (a)
encompasses all thefts, including theft by false pretenses];
Garrett, at p. 89 [“By using a stolen credit card, a thief must
falsely represent that he or she is the proper owner of the credit
card or has the consent of the owner to use it. Such conduct
constitutes ‘theft by false pretenses’”].) Section 459.5, subdivision
(b) makes it clear that “‘[a]ny act of shoplifting as defined in
subdivision (a) shall be charged as shoplifting,’” and that “‘[n]o
person who is charged with shoplifting may also be charged with
burglary or theft of the same property.’” (Gonzales, at p. 863,
italics added.) The trial court properly concluded, therefore, that
Case’s acts of shoplifting could not be charged as felony identity
theft under section 530.5, subdivision (a). (Gonzales, at p. 862;
Garrett, at pp. 89-90.) Under section 495, subdivision (b), they

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could be charged only as misdemeanor shoplifting. (Gonzales, at
pp. 862, 876-877; see 2 Couzens, Bigelow & Prickett, Sentencing
Cal. Crimes (The Rutter Group 2017) § 25:4, p. 25-29 [“If section
459.5 applies, the defendant may not be alternatively charged
with burglar[y] or identity theft”].)
In sum, we conclude the trial court properly granted Case’s
motion to reduce his felony identity theft convictions to
misdemeanors. Case met his burden of establishing that his
convictions qualified under Proposition 47 as misdemeanor
shoplifting offenses.3
DISPOSITION
The order granting Case’s motion for reduction of his nine
felony convictions is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
3 Because we agree with Case that the trial court correctly
granted his motion for the reasons stated in its ruling, we need
not reach Case’s alternative argument that each identity theft
charge constituted petty theft under section 490.2.

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Nancy L. Ayers, Judge
Superior Court County of Ventura
______________________________
Gregory D. Totten, District Attorney, Lisa O. Lyytikainen,
Senior Deputy District Attorney, for Plaintiff and Appellant.
Todd W. Howeth, Public Defender, Russell L. Baker and
Michael McMahon, Senior Deputy Public Defenders, for
Defendant and Respondent.

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