Second degree burglary conviction based on felony identity theft may be eligible for reduction to misdemeanor under Proposition 47. Appellant pleaded guilty to second degree burglary in two cases. In one case, he also pleaded to one count of passing an altered or fictitious check (Pen. Code, § 476). After the November 2014 passage of Proposition 47, appellant petitioned to reduce his offenses to misdemeanors. The prosecution agreed that the fictitious check count was eligible for reduction, but opposed reduction of the burglaries. The agreed upon facts at the hearing reflected that appellant entered a bank and a liquor store to illegally cash checks belonging to another person, which is identity theft. The trial court found neither of the burglary offenses subject to reduction but reduced the fictitious check count. Appellant appealed. Held: Reversed and remanded. Proposition 47 added a new shoplifting statute (Pen. Code, § 459.5) that requires an “intent to commit larceny.” Larceny (or theft (Pen. Code, § 490a)) is defined very broadly under section 484, subdivision (a), and includes knowingly defrauding another person of money by any false or fraudulent presentation or pretense. Because appellant’s act of passing a bad check qualifies as theft under section 484, subdivision (a), it is shoplifting under the new section 459.5. The court disagreed with People v. Gonzales (2015) 242 Cal.App.4th 35 (affirming the denial of a Prop. 47 petition where the defendant entered a bank with the intent to cash a check taken from his grandmother, finding the consensual taking involved no larceny). The prosecution and defense agreed that the amount at issue in one case was less than $950 and the trial court erred in denying the petition as to this conviction. The case was remanded for reconsideration of the other conviction.

When determining whether a defendant is eligibility for Proposition 47 relief, the trial court is not limited to the record of conviction, but may consider factual stipulations or agreements by the parties. The factual basis for one of appellant’s pleas stated that he entered a bank with the intent to commit theft with a fraudulent check. In the other case, he admitted that he entered a liquor store intending to commit theft and that he passed a fraudulent check. At the Proposition 47 hearing, the prosecution opposed reduction of the burglaries, arguing that appellant had entered the bank and the liquor store intending to commit identity theft. Defense counsel accepted the prosecutor’s representation of the facts as to one of the cases. On appeal, appellant argued that the trial court erred in considering facts outside the record. The Court of Appeal disagreed. Generally, a trial court must determine the facts regarding a defendant’s eligibility for sentence reduction based solely on the record of conviction (citing People v. Bradford (2014) 227 Cal.App.4th 1322 [regarding Prop. 36 eligibility]), because the language of Penal Code section 1170.18 does not provide for the taking of evidence. Here, the Court of Appeal distinguished Bradford and concluded that a trial court determining eligibility for a Proposition 47 sentence modification “is not limited to the record of conviction, but may also consider any factual stipulations or clear agreements by the parties that add to, but do not contradict, the record of conviction.” Because the defense expressly accepted the prosecution’s representations for one of the cases, the trial court did not err in considering those facts.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C078492.PDF