P v. Chen (2nd Dist., Div.8) Walking into the DMV Intending to Lie on Your License Application is Not Shoplifting

This is a strange opinion in that it lacks a useful statement of facts.  We never find out Chen did, just with what he was charged and to what he pleaded.

In January 2012, the People filed a criminal complaint charging Chen with two criminal charges, perjury in the application for a driver‟s license (count 1; § 118, subd. (a);) and second degree commercial burglary (count 2; § 459). Count 1 alleged that Chen failed to disclose that he had applied for, received, and used an Illinois driver‟s license under the name Yu Liu. As to count 2, the complaint alleged that Chen entered the Department of Motor Vehicles, “a commercial building,” with the intent “to commit larceny and any felony.

Chen pleaded guilty to count 2 in consideration for dismissal of count 1.  Following the November 2014 passage of Proposition 47, Chen petitioned under PC 1170.18 for his conviction to be reduced to a misdemeanor.  The State opposed the petition arguing that because Chen's intent upon entering the DMV was to commit felony perjury, his PC 459 would not be a misdemeanor if committed today.  The trial court granted Chen's petition and the State appealed.

The Second District reverses.  The weakness in this opinion is that the panel appears to just assume the facts it needs to justify the holding, to wit, that the factual basis for Chen's plea was that he entered the DMV with an intent to lie on his license application.  If the record reflects this, the panel erred in not mentioning it.  All it mentions is the what you read above and based upon that I can't make any useful conclusions.  Was count 1 related to count 2?  They were alleged to have been committed on the same day, but did Chen make two different entries or just one?  Count 2 alleges that Chen's intent was to "commit larceny and any felony", which clearly indicates Chen had the intent to commit larceny (and "any felony" which may or may not be a form of larceny).  The panel dismisses this, confidently stating there was no larceny, no theft.  Which may be true, but please explain upon what in the record of conviction you base this.

Without referencing the factual basis for the plea or evidence received at the 1170.18 petition hearing, the opinion appears sloppy and ultracrepidarian.

Hopefully it is neither and just appears that way due to an error of omission.