Hernandez

I respectfully dissent to the majority opinion reversing the trial court's order denying defendant's petition.

*271 In this case, defendant entered an AM/PM convenience store wearing a trench coat and armed with a metal pipe. Defendant and a cohort grabbed $18 of beer. As he was leaving the store, defendant held the pipe in his hand and told the clerk, "If you follow, I will fuck you up." Although defendant was charged with burglary and robbery with a deadly weapon enhancement, the plea bargain allowed defendant to plead guilty to just second degree burglary.

Second degree burglary is committed when the perpetrator enters a shop "with intent to commit grand or petit larceny or any felony." ( Pen. Code, § 459.) The intent at the time of entry is dispositive. ( People v. Kwok (1998) 63 Cal.App.4th 1236 , 1246, 75 Cal.Rptr.2d 40 .) The charging documents and plea bargain are sufficient to support two different time-of-entry intent scenarios: (1) defendant intended only to commit larceny by taking merchandise valued at less than $950 (current Pen. Code, § 459.5 ); or (2) defendant intended to commit robbery by taking the merchandise by fear or force ( Pen. Code, § 211 ). When…

RAPHAEL J.

*131 *263 In 1995, defendant and appellant Hermando Antonio-Vega Hernandez pled guilty to burglary in violation of Penal Code section 459 1 on facts that included his entering a convenience store and stealing $18 of beer. He was sentenced to two years in prison.

When the voters passed Proposition 47 in 2014, they enacted section 459.5, which defines the new offense of shoplifting as any theft of property valued at $950 or less from a commercial establishment during business hours and which requires that any such offense be charged as misdemeanor shoplifting, not felony burglary. Proposition 47 also allows defendants to file petitions to recharacterize prior felony convictions that would have been misdemeanors under the law as changed by the initiative. In 2017, relying on that provision, defendant filed a petition seeking to have his felony burglary conviction designated as misdemeanor shoplifting in violation of section 459.5. The trial court denied the petition, apparently because, based on police reports in the trial court record, it found defendant entered the store with the intent to commit robbery in violation of section 211, rather than merely with the intent…