Defendant’s offense of attempting to cash a forged check could not be reduced pursuant to Proposition 47 because it involved identity theft, not larceny. In September 2012, Bias entered a bank and attempted to cash a forged check for $587.64. He was charged with second degree burglary (Pen. Code, § 459) and check forgery (Pen. Code, § 475, subd. (c)). A prior prison term enhancement and strike prior were alleged. Bias pleaded guilty to the burglary and admitted the priors. He was sentenced to state prison. In November 2014, he filed a Proposition 47 petition for resentencing, which was granted. The prosecution appealed. Held: Reversed. Proposition 47 was passed by the voters in November 2014. It reduced certain drug and theft offenses from felonies to misdemeanors for qualified defendants. It also added Penal Code section 1170.18, which provides a procedure whereby defendants may seek resentencing. Here, the trial court found that Bias’s offense fell within the new shoplifting statute (Pen. Code, § 459.5). However, section 459.5 does not redefine burglary; it is limited to entry into a commercial establishment during regular business hours with the intent to commit larceny of property worth $950 or less. Entry with the intent to commit any other felony is still second degree burglary (Pen. Code, § 459). The preliminary hearing transcript revealed that Bias entered a bank and attempted to cash a check bearing the name and identifying information of a company, Innovative Designs, which constitutes identity theft (Pen. Code, § 530.5, subd. (b)). As such, the offense remains a felony second degree burglary.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E062949.PDF