P. v. O’Neal

Filed 5/31/19 P. v. O’Neal CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL O’NEAL, SR.,
Defendant and Appellant.
B289422
(Los Angeles County
Super. Ct. No. YA063443)
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Brandlin, Judge. Affirmed.
Richard Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Noah P. Hill and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

-- 1 of 21 --

2
INTRODUCTION
Defendant Michael O’Neal, Sr. (O’Neal) was convicted of
first degree residential robbery, first degree burglary, elder
abuse, false imprisonment of an elder, attempted theft of access
card information, unauthorized use of personal identifying
information (identity theft), and possession of an assault weapon,
with enhancements for firearm use and infliction of great bodily
injury to victims over 70.
During a resentencing hearing, the trial court refused to
designate the identity theft charge as a misdemeanor under
Proposition 47, the Safe Neighborhoods and Schools Act, Penal
Code section 1170.18,1 or to strike the firearm use enhancement
imposed pursuant to section 12022.53, subdivision (b). O’Neal
was resentenced to 22 years and 4 months in the state prison.
O’Neal appeals the judgment. We affirm.
FACTUAL BACKGROUND
We take the relevant facts from People v. O’Neal, (Feb. 29,
2008, B194332) [nonpub. opn.].)2
1. The robbery of Josephine Hill
On the afternoon of August 6, 2005, 77-year-old Hill
returned home from the grocery store. Hill lived alone at
New Horizons, a condominium complex for seniors. As she
finished unloading her groceries, a man’s voice behind Hill said,
“Freeze.” The man, later identified as O’Neal, pushed her into
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Following his conviction in 2006, O’Neal appealed the
judgment of conviction in 2008. The judgment was affirmed.

-- 2 of 21 --

3
the bedroom, made her kneel on the floor, and put her head on
the bed. He threw a sweater over her head. Using plastic zip
ties, he tied Hill’s hands behind her back and bound her ankles.
Hill felt what seemed to be a gun pressed against her neck.
O’Neal threatened to kill her if she disobeyed his orders. He took
rings from her fingers, jewelry, cash, and a credit card from her
purse. He asked if she had a personal identification number
(PIN) and Hill said she did not have one.
That same day, Hill’s credit card was used at a Shell gas
station. A few days later, O’Neal twice attempted to use Hill’s
credit card at a Target store, but failed because the PIN was
incorrect.3
Hill could not free herself from the plastic zip ties binding
her hands and ankles. She became dehydrated and delirious
before being discovered by her granddaughter more than
24 hours later.
2. The robbery of Mary Gilliland
On November 18, 2005, 74-year-old Gilliland was living at
the New Horizons senior complex. She went outside to get her
mail. When she returned to her condominium, she closed, but did
3 Facts from the direct appeal suggest surveillance video
captured O’Neal’s attempt to use Hill’s credit card at a Target
store. (People v. O’Neal, supra, B194332.) Although there was
evidence that Hill’s credit card was used at a gas station on the
same day as the robbery, there was no indication that it was
O’Neal who used it. (Ibid.) This is consistent with O’Neal’s
statement that “his conviction was premised on his use of the
victim’s credit card to obtain goods at a store.” We therefore
assume the identity theft charge was based upon the incident at
Target.

-- 3 of 21 --

4
not lock, the sliding glass door and went into the bathroom. As
she was sitting on the toilet, the bathroom door was suddenly
opened by O’Neal, who stuck a gun in her face and asked for her
gold and jewels. O’Neal was wearing a baseball cap with a postal
logo, a long-sleeved “postman’s shirt” with a “postman’s emblem,”
and gray-blue pants that looked like “postal pants.”
O’Neal ordered Gilliland into her bedroom, where he told
her to lie down on the bed. Using plastic zip ties, he tied her
hands behind her and bound her feet. He took jewelry and put it
into a black bag. He wrapped pajamas around her face. O’Neal
dumped the contents of Gilliland’s purse onto the bed. He shoved
her credit card in front of her face and asked for her PIN. When
Gilliland said she did not have one, he asked for her ATM card
number. Gilliland said she did not have an ATM card. O’Neal
pulled the plastic zip ties as tight as he could, pulled a ring off
Gilliland’s finger and a diamond charm from her neck, and left
the condominium.
A gardener at New Horizons saw a “[s]uspicious looking car
with a mailman in it.” What he found suspicious was that he had
never seen a mailman in a private car before. O’Neal was
identified as the driver.
O’Neal had worked at a local post office from 1994 to 2000
as a letter carrier. One of O’Neal’s routes included the New
Horizons senior complex.
PROCEDURAL BACKGROUND
1. Charges
A jury found O’Neal guilty of the following crimes: two
counts of first degree residential robbery, counts 1 and 8 (§ 211);
two counts of first degree burglary, counts 2 and 9 (§ 459); two

-- 4 of 21 --

5
counts of elder abuse, counts 3 and 10 (§ 368, subd. (b)(1)); false
imprisonment, count 4 (§ 368, subd. (f)); attempted theft, count 5
(§ 484e, subd. (d)); identity theft, count 6 (§ 530.5, subd. (a)); and
two counts of possession of an assault weapon, counts 11 and 12
(former § 12280, subd. (b)). As to the residential robbery in count
8, the jury found true a firearm use enhancement (§ 12022.53,
subd. (b)), and as to count 1, a great bodily injury enhancement
(§ 12022.7, subd. (c)). The jury found O’Neal not guilty of count 7,
criminal threats (§ 422).
2. Procedural History
This is the third time O’Neal has been before this court. He
was originally sentenced in 2006. In 2008, we affirmed the
judgment of conviction following his direct appeal. (People v.
O’Neal, supra, B194332.) O’Neal later filed a petition for writ of
habeas corpus challenging his sentence as unlawful because the
trial court purported to amend his sentence by means of a nunc
pro tunc order. In 2017, we granted relief and ordered the trial
court to conduct a new sentencing hearing at which O’Neal and
his counsel had the right to be present. (In re O’Neal, Sr. (Nov.
21, 2017, B270878) [nonpub. opn.].)
O’Neal was resentenced on March 20, 2018. During the
hearing, he asked the trial court to strike the firearm use
enhancement pursuant to Senate Bill No. 620 (Sen. Bill 620).4
4 Effective January 1, 2018, Sen. Bill 620 amended section
12022.53 by vesting trial courts with the authority to strike or
dismiss firearm use enhancements in the interest of justice
pursuant to section 1385. (§ 12022.53, subd. (h).) Appellate
courts have held that Sen. Bill 620 applies retroactively to cases
not yet final as of January 1, 2018. (See, e.g., People v. Watts
(2018) 22 Cal.App.5th 102, 119; People v. Woods (2018) 19

-- 5 of 21 --

6
Despite the trial court’s consideration of mitigating
circumstances—O’Neal’s performance as a “model prisoner,” his
advanced age, hearing and walking disabilities, and his attempts
to reform himself—the trial court denied the request. The trial
court found O’Neal had used his position as a former United
States Postal Service worker to conceal his “true intent” to
commit armed residential robbery of particularly vulnerable
victims. The trial court imposed 10 years in state prison for the
firearm use enhancement.
For the identity theft conviction in count 6, on its own
motion, the trial court considered whether to redesignate the
charge as a misdemeanor under Proposition 47. Relying on
People v. Liu (2018) 21 Cal.App.5th 143, review granted June 13,
2018, S248130 (Liu), the trial court found that identity theft is
not subject to Proposition 47 analysis or treatment. The trial
court thus sentenced O’Neal consecutively to eight months (one-
third the mid-term of two years) for the identity theft charge.
The trial court reduced the charge in count 5, attempted theft
(§ 484e, subd. (d)), to a misdemeanor pursuant to Proposition 47.
Cal.App.5th 1080, 1090.) Furthermore, section 12022.53,
subdivision (h) “applies to any resentencing that may occur
pursuant to any other law.”

-- 6 of 21 --

7
DISCUSSION
1. O’Neal’s Identity Theft Charge
O’Neal first contends that because the conviction for
identity theft was premised on his use of Hill’s credit card to
obtain goods at a store, the act may be prosecuted only as
misdemeanor.
Recognizing a split of authority on the question of whether
identity theft must be reclassified as misdemeanor shoplifting
pursuant to Proposition 47, O’Neal broadly asserts that
Proposition 47 provides that “all forms of shoplift [are]
misdemeanors and [have] to be charged as shoplifts rather than
burglaries, forgeries, or access card violations.” He further
argues that “[t]his rule encompasses identity theft under section
530.5 if the crime was in essence a shoplift, that is, if appellant
used the card to obtain goods.”
As we point out, the decisions O’Neal relies upon hold that
when defendants are charged with both shoplifting and burglary
of the same property, they may be charged only with the lesser
crime of shoplifting if the statute applies. (People v. Jimenez
(2018) 22 Cal.App.5th 1282, 1289, review granted July 25, 2018,
S249397 (Jimenez), citing People v. Gonzales (2017) 2 Cal.5th
858, 876 (Gonzales).)5
Conversely, other decisions have held that applying
Proposition 47 to section 530.5 is inconsistent with that act’s
purpose. That is, section 530.5 is not a theft offense, protects
victims whose identity has been misused rather than the
commercial establishment whose property may have been taken,
5 See also People v. Brayton (2018) 25 Cal.App.5th 734
(Brayton); People v. Garrett (2016) 248 Cal.App.4th 82 (Garrett).

-- 7 of 21 --

8
and protects against harms broader than theft. (Liu, supra, 21
Cal.App.5th at pp.152–153, rev.gr.) In considering the broader
harms, those appellate courts conclude that Proposition 47 did
not intend to roll back the law’s protection on the unauthorized
use of personal identifying information by redesignating the
crime as a theft offense. (See Liu, supra, 21 Cal.App.5th 143,
rev.gr.; People v. Sanders (2018) 22 Cal.App.5th 397, review
granted July 25, 2018, S248775 (Sanders); People v. Weir (2019)
33 Cal.App.5th 868, 873 (Weir).)
As we will describe, we find the latter analysis persuasive
and conclude that O’Neal’s misuse of Hill’s personal identifying
information falls outside the scope of Proposition 47.
A. Sections 459.5 and 530.5
“Approved by the voters in 2014, Proposition 47, the Safe
Neighborhoods and Schools Act, reduced the punishment for
certain theft-and drug-related offenses, making them punishable
as misdemeanors rather than felonies.” (People v. Page (2017)
3 Cal.5th 1175, 1179.) It “created the new crime of ‘shoplifting,’ ”
defined as entering an open commercial establishment during
regular business hours with the intent to commit a larceny of
property worth $950 or less. (Gonzales, supra, 2 Cal.5th at
p. 862.) It also stated “ ‘[a]ny other entry into a commercial
establishment with intent to commit larceny is burglary.’ ” (Id.
at p. 863; § 459.5, subd. (b).) Since Proposition 47’s passage,
courts have considered which crimes—previously designated as
felonies―fall within this new crime of shoplifting and therefore
qualify for resentencing as misdemeanors.
One such felony is the unauthorized use of personal
identifying information. (§ 530.5, subd. (a).) While “commonly
referred to as identity theft, the plain language of the statute

-- 8 of 21 --

9
designates a violation of this section a nontheft offense.” (Weir,
supra, 33 Cal.App.5th, at pp. 873–874.) Furthermore, a violation
of section 530.5, subdivision (a) is more accurately termed
“unauthorized use of someone else’s personal identifying
information.” (CALCRIM No. 2040; see People v. Truong (2017)
10 Cal.App.5th 551, 561.) The elements of the crime are these:
“1. The defendant willfully obtained someone else’s personal
identifying information; [¶] 2. The defendant willfully used that
information for an unlawful purpose; [¶] and [¶] 3. The
defendant used the information without the consent of the person
whose identifying information [he] was using.” (CALCRIM No.
2040, capitalization omitted.)
In Gonzales, supra, 2 Cal.5th at page 862, filed March 23,
2017, our Supreme Court held 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 rather than larceny, now
constitutes shoplifting under the statute.” In that case, the
defendant Gonzales had stolen his grandmother’s checkbook. He
then went, twice, into banks and cashed checks for $125, each
made out to himself. The People charged him with second degree
commercial burglary and forgery. Gonzales pleaded to the
burglary count, and the prosecution dismissed the forgery count.
He later petitioned for resentencing under Proposition 47.
(Gonzales, at p. 862.)
The Supreme Court rejected the Attorney General’s
contention that the electorate intended to limit the offense of
“ ‘shoplifting’ ” to “ ‘the common understanding’ . . . [of] taking
goods from a store.” (Gonzales, supra, 2 Cal.5th at p. 869.)
“[S]ection 459.5 provides a specific definition of the term
‘shoplifting.’ . . . [B]y defining shoplifting as an entry into a

-- 9 of 21 --

10
business with an intent to steal, rather than as the taking itself,
section 459.5 already deviates from the colloquial understanding
of that term.” (Gonzales, at p. 871.)
The high court also addressed the Attorney General’s
argument that, “even if defendant engaged in shoplifting, he is
still not eligible for resentencing because he also entered the
bank intending to commit identity theft” under section 530.5,
subdivision (a). (Gonzales, supra, 2 Cal.5th at p. 876.) It found
Gonzales’s counterargument to be “the better view”: Even if he
“entered the bank with an intent to commit identity theft, section
459.5, subdivision (b) would have precluded a felony burglary
charge because his conduct also constituted shoplifting.”
(Gonzales, at p. 876.) Gonzales concluded, “A defendant must be
charged only with shoplifting when the statute applies.” (Ibid.)
Four days after issuing its decision in Gonzales, our
Supreme Court filed People v. Romanowski (2017) 2 Cal.5th 903,
(Romanowski). The high court held that theft of access card
account information in violation of section 484e, subdivision
(d)―“an offense that includes theft of credit and debit card
information―is one of the crimes eligible for reduced punishment”
under Proposition 47. (Romanowski, at pp. 905–906.) The
Romanowski court noted “the Legislature chose to place section
484e in a chapter of the Penal Code titled ‘Theft.’ ” (Romanowski,
at p. 912.) “Although theft of access card information differs in
some ways from other forms of theft, Proposition 47 broadly
reduced punishment for ‘obtaining any property by theft’ where
the value of the stolen information is less than $950.”
(Romanowski, at p. 906.)

-- 10 of 21 --

11
B. The Split of Authority
Neither Gonzales nor Romanowski answered the question
presented here: whether a violation of section 530.5, subdivision
(a) categorically qualifies as shoplifting within the meaning of
section 459.5. As noted, Gonzales, supra, 2 Cal.5th at page 876,
stated that, where a defendant’s conduct constitutes both
commercial burglary (entering a commercial establishment to
commit a theft or any felony)6 and shoplifting (entering with
intent to commit a theft),7 he “must be charged only with
shoplifting when the statute applies.”
This would be true even if the requisite intent to commit a
felony in the second element of burglary was premised upon
something other than theft, such as felony identity theft.
(Gonzales, supra, 2 Cal.5th at p. 876, [“even assuming he entered
the bank with an intent to commit identity theft, section 459.5,
subdivision (b) would have precluded a felony burglary charge
(§ 459) because his conduct [burglary] also constituted shoplifting
(§ 459.5)”,] italics omitted.) Unlike Gonzales, the prosecution
here did not rely upon any theory of theft for the attempted
property crime against the commercial establishment. The
6 The elements of second degree commercial burglary
include: (1) the defendant entered a building; and (2) when he
entered, he intended to commit theft or one or more felonies.
(CALCRIM No. 1700.)
7 The elements of shoplifting include: (1) The defendant
entered a commercial establishment; (2) when the defendant
entered the commercial establishment, it was open during
regular business hours; and (3) when he entered the commercial
establishment, he intended to commit theft. (CALCRIM No.
1703.)

-- 11 of 21 --

12
People only sought a remedy for the harm perpetrated against
the owner of the personal identifying information.
Whether identity theft in violation of section 530.5 is itself
eligible for resentencing under Proposition 47 is currently before
our Supreme Court. (See Jimenez, supra, 22 Cal.App.5th 1282,
rev.gr.; Sanders, supra, 22 Cal.App.5th 397, rev.gr.) The court
identified the issue presented as whether a felony conviction for
the unauthorized use of personal identifying information of
another section 530.5, subdivision (a) may be reclassified as a
misdemeanor under Proposition 47 on the ground that the offense
amounted to shoplifting.
Appellate courts have reached different conclusions on the
issue. In a decision filed April 17, 2018, Sanders, supra,
22 Cal.App.5th at page 400, review granted, the Fourth District
Court of Appeal held “violations of section 530.5, subdivision (a)
are not theft offenses.” In Sanders, the defendant found
someone’s credit card. She used it to buy cigarettes and a drink
at a 7-Eleven, and to get cash at a Burger King. The total
charges Sanders made on the card were $174.61. (Sanders, at
p. 400.)
Sanders stated, “we are satisfied that section 530.5,
subdivision (a) is not a theft based offense. Theft is not an
element of the offense. It is the use of the victim’s identity that
supports the application of the statute.” (Sanders, supra, 22
Cal.App.5th at p. 403, rev.gr.) Sanders also identified the value
of a victim’s privacy by recognizing that the crime “seeks to
protect the victim from the misuse of his or her identity.” (Id. at
p. 405.) Accordingly, Sanders found Romanowski to be
distinguishable. (Sanders, at pp. 480–481.)

-- 12 of 21 --

13
Similarly, Division Eight of this court held that a defendant
convicted of identity theft in violation of section 530.5 is not
eligible for resentencing under Proposition 47. (Liu, supra, 21
Cal.App.5th 143, rev.gr.) Liu had been convicted of 22 theft-
related counts arising from her scam of offering loan services to
immigrants. (Liu, at p. 146.) On the one count relevant to our
inquiry, the jury had convicted Liu of violating section 530.5,
subdivision (c), the fraudulent acquisition and retention of the
personal identifying information of 10 or more people. Liu’s
petition for resentencing was denied on that count.
Liu first framed the issue: “We must decide whether
section 530.5 constitutes ‘grand theft’ or ‘obtaining any property
by theft’ within the meaning of section 490.2, subdivision (a).”
(Liu, supra, 21 Cal.App.5th at p. 150, rev.gr.) Liu distinguished
Romanowski, noting “section 484e explicitly defines theft of
access card information as grand theft.” (Liu, at p.151.) Liu
continued, “In contrast, section 530.5 does not define its crimes as
grand theft, but describes them as ‘public offense[s]’ . . . placed in
the chapter of the Penal Code defining ‘False Personation and
Cheats,’ which includes crimes such as marriage by false
pretenses (§ 528), and falsifying birth certifications and licenses
(§§ 529a, 529.5).” (Liu, at p. 151.)
The court in Liu observed that section 530.5 addresses
harms other than theft, such as using information in “obtaining
false driver’s licenses, birth certificates, and passports,” which
could be used “for a multitude of reasons unrelated to pecuniary
gain, such as avoiding warrants, no fly lists, and protective
orders.” (Liu, supra, 21 Cal.App.5th at p. 151, rev.gr.) The court
in Liu concluded, “We are not persuaded that section 530.5
defines a ‘nonserious’ crime within the meaning of Proposition 47,

-- 13 of 21 --

14
given the far-reaching effects of the misuse of a victim’s personal
identifying information.” (Liu, at p. 153.)
Most recently, in Weir, supra, 33 Cal.App.5th at page 871,
the Fourth District Court of Appeal held that identity theft in
violation of section 530.5 is not eligible for resentencing under
Proposition 47 because it is not a theft offense. Weir had been
convicted of four counts of obtaining personal identifying
information, with intent to defraud after he was found in
possession of the identifying information of four people. (Weir, at
p. 871.) The court in Weir reasoned that the distinction between
the crimes of having or using personal identifying information
and the separate crime of stealing property under some other
provision proscribing theft, “convinces us that the offense in
section 530.5(c) is punishable because of the particular nature
and effect of the crime—potential harm that far exceeds the value
of any property obtained by the subsequent misuse of the
information, rather than the comparatively isolated consequences
associated with petty theft.” (Weir, at p. 876.)
The Weir court observed that the purpose of the identity
theft statute is to “remedy harm to the victim whose identity has
been misused rather than to punish the theft of the property.”
(Weir, supra, 33 Cal.App.5th at pp. 874–875.) It noted that
“existing law does not provide any remedy for the real victim: the
person whose credit has been damaged or ruined.” (Id. at
pp. 874–875, fn. 6, citing Sen. Com. on Public Safety, Analysis of
Assem. Bill No. 156 (1997–1998 Reg. Sess.) as amended July 3,
1997.) “[P]ossession of another person’s identifying information
is a ‘greater evil’ than petty theft.” (Weir, at pp. 876–877.)
By contrast, Division Six of this court affirmed a trial court
order granting a defendant’s motion to reduce his convictions for

-- 14 of 21 --

15
identity theft to misdemeanors. In Jimenez, supra, 22
Cal.App.5th 1282, review granted, the defendant had cashed two
apparently forged checks at a check-cashing business. The
amounts of the checks were roughly $632 and $597. The
appellate court noted that “Jimenez’s conduct [was] identical to
Gonzales’s conduct[:] [t]hey both entered a commercial
establishment during business hours for the purpose of cashing
stolen checks valued at less than $950 each.” (Jimenez, at
p. 1289.) Citing Gonzales, the Jimenez court said, “Both
defendants committed ‘theft by false pretenses,’ which ‘now
constitutes shoplifting under [section 459.5, subdivision (a)].’ ”
(Jimenez, at p. 1289.) Jimenez found both Sanders and Liu
unpersuasive: “Not only are the cases distinguishable, but they
also do not address Gonzales.” (Jimenez, at p. 1291.)
Furthermore, in Brayton, supra, 25 Cal.App.5th 734, a
decision issued August 10, 2018, Division Six of this court
reversed the denial of a request for resentencing on a felony
identity theft conviction. There, the defendant Brayton removed
price tags from two items for sale in a department store, then
returned the items for a refund, using a stolen driver’s license as
identification. Brayton stated, “[T]he 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.” (Brayton, at p. 739) The appellate court
remanded the case for the trial court to determine “ ‘the amount
of the loss.’ ” (Id. at pp. 739–740.)

-- 15 of 21 --

16
C. O’Neal’s unauthorized use of Hill’s personal
identifying information is not theft
Pending further guidance from our Supreme Court, we
must decide whether O’Neal’s violation of section 530.5,
subdivision (a) amounted to “shoplifting” within the meaning of
section 459.5, subdivision (a).
Section 530.5 was intended “to protect the victims of
identity fraud, who cannot protect themselves from fraudulent
use of their identifying information once it is in the possession of
another, because they cannot easily change their name, date of
birth, Social Security number, or address.” (People v. Valenzuela
(2012) 205 Cal.App.4th 800, 807.) The statute seeks to remedy
harm inflicted upon the person whose identity was misused.
(Weir, supra, 33 Cal.App.5th at p. 875.) It protects the person
whose credit has been damaged or ruined rather than the
commercial establishment from which property was taken. (Id.
at p. 876, fn. 6.)
Indeed, the drafters of Proposition 47 and the voters who
approved it were sufficiently concerned about identity theft in
violation of section 530.5, subdivision (a) that the proposition
contained an express provision that a person convicted of both
forgery and identity theft would not be entitled to resentencing
on the forgery count. (See Gonzales, supra, 2 Cal.5th at p. 870.)8
8 The elements of forgery pursuant to section 473,
subdivision (b) include: (1) the defendant possessed or used a
false or altered check, bill, note or other legal writing for the
payment of money or property; (2) the defendant knew that the
document was false or altered; and (3) when the defendant
possessed, made, or passed the document, he intended to defraud.
(CALCRIM No. 1935.)

-- 16 of 21 --

17
It is noteworthy that neither forgery nor identity theft requires
entry with an intent to commit a larceny or felony as is required
of both burglary and shoplifting.
Furthermore, “[a] key purpose of Proposition 47 is to
‘[r]equire misdemeanors instead of felonies for nonserious,
nonviolent crimes like . . . drug possession.’ ” (People v. Martinez
(2018) 4 Cal.5th 647, 656, citing Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) At a time when
personal identifying information is valuable and can be used for
countless unlawful purposes, we are not persuaded that section
530.5, subdivision (a) is the sort of “nonserious” crime the voters
had in mind when they passed Proposition 47.
Here, O’Neal was not charged with burglary or shoplifting
for entering a commercial establishment with an intent to misuse
Hill’s personal identifying information. By failing to charge him,
the state did not seek to protect Target with those theories of
theft.
To the contrary, O’Neal was charged only for the crime he
committed against Hill, specifically, willfully obtaining and using
her personal identifying information without her consent. This
crime began when he obtained the information from her home.
O’Neal’s frustrated attempt to later steal from Target evinces
only his intent to use her information for an unlawful purpose.
While this latter conduct may also have supported a charge for
both burglary and shoplifting, we agree with the People that the
court in Gonzales did not expand the definition of shoplifting to
include acts committed before or after entry.
Moreover, Gonzales did not extend the act of shoplifting to
reach additional nontheft crimes. Proposition 47 would have
permitted only the lesser charge of shoplifting as to two crimes—

-- 17 of 21 --

18
burglary and shoplifting. (Gonzales, supra, 2 Cal.5th at p. 876.)
This is true even if the second element of burglary contemplated
identity theft as the felony the defendant intended to commit
upon his entry. Nothing in Gonzales suggests that Proposition 47
applies to separate nontheft crimes.
We thus adopt the view of Liu, Sanders, and Weir and
conclude that section 530.5 is not a theft offense. Furthermore,
because the crime of identity theft is not proscribed by Gonzales,
it does not fall within the ambit of section 459.5. The trial court
correctly imposed a felony sentence for O’Neal’s conviction of the
unauthorized use of Hill’s personal identifying information.
2. The Trial Court Did Not Abuse Its Discretion in Refusing
to Strike the Firearm Use Enhancement
O’Neal next contends that the trial court abused its
discretion in refusing to strike the firearm use enhancement by
failing to consider his post-judgment behavior, and by
misinterpreting the applicable legal standard. These contentions
lack merit.
Section 12022.53, subdivision (h), provides that “[t]he court
may, in the interest of justice pursuant to Section 1385 and at the
time of sentencing, strike or dismiss any enhancement otherwise
required to be imposed by this section.” A trial court’s
discretionary decision to dismiss or to strike a sentencing
allegation under section 1385 is reviewable for abuse of
discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 531.)
Under section 1385, subdivision (a), a “judge. . . may, either
of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice order an
action to be dismissed.” The trial court does not abuse its

-- 18 of 21 --

19
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it. (People v. Carmony (2004)
33 Cal.4th 367, 377.) Furthermore, the burden is on the
defendant to show that the sentencing decision was irrational or
arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 977.) In resentencing a defendant, the trial court must
consider his post-judgment behavior. (People v. Warren (1986)
179 Cal.App.3d 676, 687.)
The trial court read and considered the prosecution’s
sentencing brief, the probation officer’s report, a sentencing
memorandum, a transcript of the preliminary hearing, a
transcript of the original sentencing hearing, and the remittitur.
The probation report from 2005 listed five aggravating and no
mitigating factors: (1) the victims were particularly vulnerable;
(2) the crime was premeditated in the current crime;
(3) defendant took items of great monetary value; (4) defendant
was armed; (5) the crimes involved great violence, bodily harm, or
acts of cruelty, viciousness or callousness.
At the hearing, O’Neal’s counsel acknowledged the serious
nature of his offenses, and argued that O’Neal had learned many
lessons during his 13-year prison commitment and believed he
had been adequately punished for his crimes. Counsel urged the
trial court to strike the firearm use enhancement because O’Neal
was 41 years old at the time of the crime, had no criminal history
of serious or violent offenses, and had been “discipline-free while
in the Department of Corrections.”
After hearing counsel’s argument, and before pronouncing
judgment, the trial court stated: “I also recognize and respect the
fact that Mr. O’Neal has not been a difficult prisoner since he has
been incarcerated. He appears to be a model prisoner. I also

-- 19 of 21 --

20
recognize that he is more advanced in age; that he appears to
have other disabilities, including his hearing disability. He now
walks with a walker. I recognize that there [have] been attempts
by Mr. O’Neal to reform himself, and to that extent, he is
certainly entitled to the respect and any mitigating impact it has
on the court’s sentencing discretion.” Thus, the trial court
considered O’Neal’s post-judgment behavior as a mitigating
circumstance. O’Neal’s claim to the contrary is without merit.
O’Neal next contends that the trial court misinterpreted
the applicable legal standard by requiring “highly unusual or
‘significant’ mitigation” before exercising its discretion in the
interest of justice. We do not agree. While the trial court
observed that the legislative intent in enacting Sen. Bill 620 was
to “provide courts with an additional tool where appropriate to
avoid harsh sentences where, for instance, a firearm use
enhancement may involve an unusual or significant mitigating
circumstance,” it nonetheless balanced the aggravating and
mitigating circumstances of the crimes and considered O’Neal’s
post-judgment record.
Further, contrary to O’Neal’s argument, the trial court
identified the factors it relied upon to deny O’Neal’s request.
Specifically, in addition to the mitigating circumstances
identified, the trial court noted that O’Neal abused his position of
trust as a former United States Postal Service employee, used his
former uniform to conceal his otherwise unauthorized presence in
a retirement community, committed an armed residential
robbery of vulnerable individuals, and when arrested, was found
hiding and in possession of a firearm.
The trial court declined to exercise its discretion in
circumstances where it would not be justified. The trial court

-- 20 of 21 --

21
properly denied O’Neal’s motion to strike the firearm use
enhancement.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MURILLO, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 21 of 21 --