The opinion
Filed 9/7/16 P. v. Bambino CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C078644
Plaintiff and Respondent, (Super. Ct. No. 62-111998A)
v.
BRETT JOSEPH BAMBINO,
Defendant and Appellant.
In this case, we address the continuing problem of determining when a conviction
for commercial burglary (Pen. Code, § 459)1 qualifies for resentencing pursuant to
section 1170.18.2
1 Undesignated statutory references are to the Penal Code.
2 The question of when a commercial burglary conviction qualifies for section 1170.18
resentencing is currently before the California Supreme Court. (See, e.g., People v. Bias
(2016) 245 Cal.App.4th 302, review granted May 11, 2016, S233634; People v. Vargas
(2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673; People v.
Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171.)
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Defendant Brett Joseph Bambino was convicted of commercial burglary for
presenting an altered prescription to a pharmacy. The trial court found defendant’s intent
to commit the crime of altering a prescription disqualified him from section 1170.18
resentencing. We find that the crime of shoplifting—section 459.5—includes theft by
false pretenses. We also find that an intent to commit some other felony does not render
a second degree burglary ineligible for resentencing when that intent is part of the act that
constitutes shoplifting under section 459.5. Although defendant’s crime could be eligible
for resentencing, we nonetheless affirm the trial court’s order because defendant failed to
carry his burden of establishing the value of the attempted theft.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of defendant’s crime from the factual basis of his plea and from
the preliminary hearing.
On December 28, 2011, defendant entered the pharmacy at the Kaiser medical
center in Roseville and submitted a prescription for Percocet consisting of 10 milligrams
of oxycodone and 325 milligrams of acetaminophen. The prescription originally stated
“5” milligrams of oxycodone, but the “5” had been written over and changed to a “10.”
Roseville police responding to the scene that day found defendant in his vehicle at the
facility’s parking lot. Defendant’s cell phone contained text messages in which he
offered to sell prescription medication to another person.
Defendant was charged with forging or altering a prescription (Health & Saf.
Code, § 11368), second degree burglary (Pen. Code, § 459), conspiracy to commit a
felony (Pen. Code, § 182, subd. (a)(1)), and attempted possession for sale of a controlled
substance (Health & Saf. Code, § 11351/Pen. Code, § 664) with prior drug convictions
(Health & Saf. Code, § 11370.2, subd. (a)) and on-bail allegations (Pen. Code,
§ 12022.1). He pleaded no contest to second degree burglary and admitted the on-bail
allegation, with a stipulated disposition of a suspended five-year term and probation, 120
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days in county jail, and an agreement that the remaining counts and a second matter
would be dismissed at time of sentencing (case No. 62-111990).
The factual basis of defendant’s plea was recited by the prosecutor as follows:
“On December 28, 2011, in Placer County, the defendant committed the crime of
second-degree commercial burglary in violation of Penal Code section 459 by entering
Kaiser Permanente with the intent to commit larceny and any felony. The defendant
also—at the time of the commission of that offense, the defendant had been released from
custody on bail in Sacramento County case No. 11F06999 within the meaning of Penal
Code section 12022.1.
“Factual basis is more fully reflected in Roseville Police report 3621113592 and
related discovery pages 1 through 15 provided to defense.”
The trial court imposed the stipulated disposition at sentencing.
Defendant subsequently filed a section 1170.18 petition for resentencing on his
conviction. The petition, which was prepared with the assistance of counsel, contained
no evidence or allegations of fact regarding the value of the pills defendant attempted to
obtain. The People filed an opposition to the petition arguing that defendant was
ineligible for resentencing because his crime, trying to pass a forged prescription at a
hospital, does not come within the definition of shoplifting as stated in section 459.5.
At the hearing on the petition, defendant’s counsel stated: “As for the value
amount, we’ve done some research. The prescription was for 30 pills, and our research is
showing that somebody without any form of payment, such as insurance, it would be
approximately around [$300] to $400, depending on the pharmacy. So clearly that is less
than $950.” The prosecutor did not address this assertion, instead reiterating that
defendant’s crime was not shoplifting.
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The trial court denied the petition in a written opinion. It found that the factual
basis for the plea established that defendant intended to commit “ ‘any felony,’ which is
clearly not within the provisions of Penal Code [section] 459.5.” Although the factual
basis also stated that defendant had an intent to commit larceny, the trial court also found
that “the further description of the factual basis set forth in the plea transcript makes clear
that the plea was not based upon the intent to shoplift.” The court noted that defendant
did not dispute entering the Kaiser facility “in possession of an altered prescription with
an intent to fraudulently obtain a stronger dosage of Oxycodone, which is a felony
pursuant to Health [and] Safety Code [section] 11368,” and found this was an additional
reason to deny the petition.
DISCUSSION
The passage of Proposition 47 created section 1170.18, which provides for any
defendant “currently serving a sentence for a conviction . . . of a felony or felonies who
would have been guilty of a misdemeanor under [Proposition 47] had [it] been in effect at
the time of the offense [to] petition for a recall of sentence before the trial court that
entered the judgment of conviction in his or her case to request resentencing . . . ” under
the statutory framework as amended by the passage of Proposition 47. (§ 1170.18, subd.
(a); see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 14,
pp. 73-74.)
As pertinent to this case, Proposition 47 added section 459.5, which establishes the
crime of shoplifting, a misdemeanor. Section 459.5 states in pertinent part:
“Notwithstanding section 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).” (§ 459.5, subd. (a); People v.
Rivera (2015) 233 Cal.App.4th 1085, 1091.) As relevant here, “burglary” is defined as
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entry into a “building . . . with intent to commit grand or petit larceny or any felony.”
(§ 459.)
Defendant contends that his crime constitutes shoplifting under section 459.5
because the factual basis of his plea stipulated that he entered the Kaiser Permanente
pharmacy with the intent to commit larceny. The Attorney General argues that the
petition was properly denied because defendant presented no evidence regarding the
value of the pills he sought and because defendant’s offense—entering the pharmacy with
an intent to commit the crime of forging or altering a prescription—does not include the
intent to commit larceny required by section 459.5.
In interpreting a voter initiative, “we apply the same principles that govern
statutory construction” (People v. Rizo (2000) 22 Cal.4th 681, 685), and “our primary
purpose is to ascertain and effectuate the intent of the voters who passed the initiative
measure” (In re Littlefield (1993) 5 Cal.4th 122, 130). “ ‘In determining such intent, a
court must look first to the words of the statute themselves, giving to the language its
usual, ordinary import and according significance, if possible, to every word, phrase and
sentence in pursuance of the legislative purpose.’ [Citation.] At the same time, ‘we do
not consider . . . statutory language in isolation.’ [Citation.] Instead, we ‘examine the
entire substance of the statute in order to determine the scope and purpose of the
provision, construing its words in context and harmonizing its various parts.’ [Citation.]
Moreover, we ‘ “read every statute ‘with reference to the entire scheme of law of which it
is part so that the whole may be harmonized and retain effectiveness.’ ” ’ ” (State Farm
Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
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We begin by addressing the trial court’s ruling that defendant’s intent to commit a
violation of Health and Safety Code section 113683 rendered him ineligible for
resentencing without regard to whether he also intended to commit larceny.
In People v. Garrett (2016) 248 Cal.App.4th 82 (Garrett)4 the defendant was
convicted of commercial burglary for entering a convenience store and trying to purchase
gift cards worth $50 with a stolen credit card. (Id. at p. 84; see fn. 4, ante.) The
defendant petitioned for section 1170.18 resentencing, which the trial court denied
because the intent to use the stolen credit card to make the purchase supported an intent
to commit identity theft. (Garrett, at p. 86; see fn. 4, ante.)
The Court of Appeal, Sixth Appellate District, rejected the trial court’s reliance on
intent to commit identity theft. “Section 459.5 mandates that notwithstanding . . . section
459, a person who enters a store ‘with intent to commit larceny’ shall be punished as a
misdemeanant if the value of the property to be taken is not more than $950. (§ 459.5,
subd. (a).) Subdivision (b) further provides that any act defined as shoplifting ‘shall be
charged as shoplifting’ and may not be charged as burglary or theft of the same property.
(§ 459.5, subd. (b).) Thus, even assuming [the] defendant 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
3 Health and Safety Code section 11368 states: “Every person who forges or alters a
prescription or who issues or utters an altered prescription, or who issues or utters a
prescription bearing a forged or fictitious signature for any narcotic drug, or who obtains
any narcotic drug by any forged, fictitious, or altered prescription, or who has in
possession any narcotic drug secured by a forged, fictitious, or altered prescription, shall
be punished by imprisonment in the county jail for not less than six months nor more than
one year, or in the state prison.”
4 Review was granted by the Supreme Court in Garrett on August 24, 2016, S236012.
Pursuant to California Rules of Court, rule 8.1115(e)(1), we cite Garrett only as
persuasive authority.
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card—also constituted shoplifting under Section 459.5.” (Garrett, supra,
248 Cal.App.4th at p. 88; see fn. 4, ante.)
The Garrett court noted that the defendant had intended to commit theft by false
pretenses, as defined in section 484.5 (Garrett, supra, 248 Cal.App.4th at p. 89; see fn. 4,
ante.) Applying section 490a, the Court of Appeal determined that the crime of
“shoplifting requires an intent to commit theft, which is further defined by . . . section
484. This includes theft by false pretenses, encompassing [the] defendant’s conduct
here.” (Garrett, at pp. 89-90; see fn. 4, ante.) The defendant’s intended petty theft
therefore qualified as shoplifting, rendering the crime eligible for resentencing. (Id. at
p. 90; see fn. 4, ante.)
Health and Safety Code section 11368 is not a theft statute.6 However, as Garrett
shows, the fact that defendant intended to commit a nontheft felony does not preclude a
5 Section 484, subdivision (a) provides, in relevant part: “Every person who shall
feloniously steal, take, carry, lead, or drive away the personal property of another, or who
shall fraudulently appropriate property which has been entrusted to him or her, or who
shall knowingly and designedly, by any false or fraudulent representation or pretense,
defraud any other person of money, labor or real or personal property, or who causes or
procures others to report falsely of his or her wealth or mercantile character and by thus
imposing upon any person, obtains credit and thereby fraudulently gets or obtains
possession of money, or property or obtains the labor or service of another, is guilty of
theft.”
6 “In addition, even when the drugs are for personal use, [Health and Safety Code]
section 11368 is directed at a greater evil than possession and personal use of the
obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority
solely reserved to statutorily defined ‘practitioners.’ [Citations.] Prescriptions are
devices by which physicians and other authorized practitioners work to achieve
legitimate medical purposes. [Citation.] The protection of the health and safety of the
public in obtaining medical prescriptions is critical. [Citation.] Physicians, pharmacists,
and patients must be able to rely on the integrity of the system. Section 11368 is aimed at
helping preserve that integrity by prohibiting counterfeiting of a physician’s authority to
prescribe, deceiving of the pharmacist, corrupting the public’s legitimate supply of
medicine, and, potentially, defrauding of insurance companies or government programs.
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finding that he also harbored an intent to commit a theft offense in the commission of his
commercial burglary. (See fn. 4, ante.) If defendant harbored an intent to commit
larceny, then his crime qualifies for resentencing if he intended to steal $950 or less. The
trial court therefore erred in finding that an intent to commit the crime of forging or
altering a prescription necessarily rendered defendant’s crime ineligible for resentencing.
Although Health and Safety Code section 11368 is not itself a theft crime, a forged
or altered prescription can be used to commit theft by false pretenses. If a defendant does
not pay all of the costs of prescription drugs, then altering a prescription to obtain a
greater amount of that drug gives the defendant a greater benefit (the value of the drugs
minus the defendant’s copayment) than he or she is entitled to, and thereby unlawfully
imposing the cost of that extra benefit on the insurer. This is theft by false pretenses.
(§ 484, subd. (a); see People v. Wooten (1996) 44 Cal.App.4th 1834, 1842 [theft by false
pretenses “requires proof that (1) the defendant made a false pretense or representation to
the owner of property; (2) with the intent to defraud the owner of that property; and (3)
the owner transferred the property to the defendant in reliance on the representation”].)
We agree with Garrett that any theft, including theft by false pretenses, satisfies
section 459.5’s larceny requirement. (See § 490a [“Wherever any law or statute of this
state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall
hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”]; see
also People v. Nguyen (1995) 40 Cal.App.4th 28, 30-31 [entry into home with intent to
pass a bad check in exchange for items satisfies larceny element of burglary].) While
defendant’s act does not come within the commonly understood definition of
“shoplifting,” section 459.5 gives a specialized legal definition that includes defendant’s
criminal act. Since defendant altered the prescription in order to commit the theft, his
Far more is implicated than just an offender’s personal involvement with drugs.” (People
v. Wheeler (2005) 127 Cal.App.4th 873, 880.)
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intent to commit the crime of altering a prescription does not render him ineligible for
resentencing.
Although defendant’s crime could qualify for resentencing, this does not end our
inquiry. As the petitioner in a section 1170.18 proceeding, defendant bears the burden of
establishing eligibility for relief under section 1170.18. (Evid. Code, § 500; People v.
Rivas-Colon (2015) 241 Cal.App.4th 444, 449; People v. Sherow (2015) 239 Cal.App.4th
875, 878.) “The crime of shoplifting has three elements: (1) entry into a commercial
establishment, (2) while the establishment is open during regular business hours, and
(3) with intent to commit larceny of property valued at $950 or less.” (In re J.L. (2015)
242 Cal.App.4th 1108, 1114.) Defendant submitted the altered prescription to the
pharmacy, which is a commercial establishment by virtue of being a place where
medication is bought and sold. (See id. at p. 1115 [“Shoplifting is commonly understood
as theft of merchandise from a store or business that sells goods to the public.”].)
Defendant submitted the false prescription during regular business hours. Since the
factual basis of his plea stipulated that defendant entered the pharmacy with an intent to
commit larceny, we conclude that defendant intended to commit theft by false pretenses.
Defendant’s claim nonetheless fails due to a lack of evidence regarding the
remaining element of shoplifting: that the drugs he intended to steal were worth $950 or
less. The section 1170.18 petition contained no evidence regarding the value of the pills.
While counsel represented at the hearing that they were worth around $300 to $400,
counsel’s unsworn, unsupported statements are not evidence and cannot carry
defendant’s burden of proof. Defendant therefore failed to carry his burden of proving
that the value of the drugs he sought to obtain by false pretenses were worth $950 or less.
Since we review the correctness of the trial court’s rulings rather than any reasons given
for the ruling (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368), whether the
trial court relied on this or some other ground to deny the petition is irrelevant. Based on
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this record, we are able to discern that the trial court correctly denied the petition.
However, our determination does not prevent defendant from filing another petition
supported by sufficient proof of value. (See People v. Perkins (2016) 244 Cal.App.4th
129, 142 [“We affirm the order denying defendant’s petition for resentencing of his
conviction for receipt of stolen property without prejudice to consideration of a
subsequent petition that supplies evidence of his eligibility.”].)7
DISPOSITION
The judgment (order) is affirmed.
BUTZ , Acting P. J.
We concur:
HOCH , J.
RENNER , J.
7 Since we affirm the trial court’s denial, we do not reach the Attorney General’s
contention that the People should be allowed to reinstate the dismissed charges if the
petition is granted.
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