A defendant’s entry into a 24-hour laundromat with the intent to break into a coin-operated soap dispenser and steal less than $950, is misdemeanor “shoplifting” (Pen. Code, § 459.5). In 2012, Bunyard pleaded no contest to second degree burglary and admitted prior prison term enhancements. In early 2015, he petitioned under Proposition 47 to have his felony conviction reclassified as a misdemeanor. The trial court denied the petition because Bunyard had entered a laundromat with the intent to pry open a coin-operated soap dispenser and steal money, which the court found was not “shoplifting.” Bunyard appealed. Held: Reversed and remanded. Proposition 47 reduced certain theft-related felonies to misdemeanors for qualified defendants. It provides a mechanism whereby defendants may petition to have their offense reclassified as a misdemeanor (Pen. Code, § 1170.18, subd. (a)). It also added “shoplifting” to the Penal Code (§ 459.5), defined as entering a commercial establishment while that business is open during regular business hours, with the intent to commit larceny, where the value of the item taken does not exceed $950. The offense is a misdemeanor unless the defendant has certain disqualifying prior convictions. “Larceny” occurs when a person takes possession of the personal property of another by means of trespass with the intent to steal the property and carries it away. Bunyard intended to commit larceny when he entered the laundromat during regular business hours (because the business was open 24 hours a day). The “property” that Bunyard intended to take was money, with a value less than $950. The trial court erred by finding him ineligible for resentencing.

The matter must be remanded to the trial court to make a dangerousness determination. A trial court is required to recall a defendant’s felony sentence and to resentence the defendant to a misdemeanor pursuant to Penal Code section 459.5, unless the court determines that resentencing the defendant would pose an unreasonable risk of danger to public safety (Pen. Code, § 1170.18, subd. (b)). Factors which the court considers in making this determination include the defendant’s criminal history, his disciplinary record while incarcerated, and other evidence that the court finds relevant. In this case, there is no evidence of defendant’s prior criminal history or performance in prison. The dangerousness determination should be made by the trial court, requiring remand for this evaluation.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/F071846.PDF