Opinion
E066494
05-08-2017
THE PEOPLE, Plaintiff and Appellant, v. SHAUNDA LOUISE LANE, Defendant and Respondent.
Michael A. Hestrin, District Attorney, Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. INF058230 & INF058383) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, judge. Affirmed. Michael A. Hestrin, District Attorney, Donald W. Ostertag, Deputy District Attorney, for Plaintiff and Appellant. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Respondent.
The People appeal from the superior court's orders granting defendant's petitions to have her two felony convictions for commercial burglary redesignated misdemeanors under Proposition 47 (Pen. Code, § 1170.18). We affirm.
Section references are to the Penal Code except where otherwise indicated.
FACTS AND PROCEDURE
Case No. INF058230
On February 26, 2007, defendant entered a check cashing store with intent to commit theft and a felony. She attempted to cash a stolen check in the amount of $350.
On May 2, 2007, the People filed a felony complaint alleging defendant committed second degree commercial burglary (§ 459) and forgery (§ 475, subd. (c)).
Case No. INF058383
Defendant twice entered the same bank with intent to commit theft and a felony, on April 16 and May 2, 2007. Each time defendant attempted to cash a different stolen check drawn on the account of a deceased person. The two checks totaled $800.
On May 4, 2007, the People filed a felony complaint alleging defendant committed two counts of second degree commercial burglary, two counts of forgery, and one count of receiving stolen property. (§496, subd. (a).)
Combined Resolution of case No. INF058230 and case No. INF058383
On May 17, 2007, defendant pled guilty to one count of commercial burglary in case No. INF058230 and one count of commercial burglary in case No. INF058383. She was sentenced to 16 months. In each case, defendant admitted to the court that she entered the establishment with "intent to commit a theft inside."
Petitions for Resentencing
On March 29, 2016, defendant filed petitions for resentencing under Proposition 47 for both cases. The People responded. On June 17, 2016, the court granted defendant's petitions.
The People appealed from each of the court's orders on July 19, 2016. This court consolidated the two appeals.
DISCUSSION
The Legal Framework
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhood and Schools Act, which became effective November 5, 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, sections 1170.18 and 459.5. Section 1170.18 creates a process permitting persons previously convicted of crimes as felonies, which might be misdemeanors under the new definitions in Proposition 47, to petition for resentencing. (Rivera, at pp. 1091-1092.)
Section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." Subdivision (g) of section 1170.18 provides that "[i]f the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Penal Code section 459.5 was among the provisions added by Proposition 47. It reduces certain second degree burglaries to misdemeanors by defining them as "shoplifting," that is, "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).)
We review a trial court's "legal conclusions de novo and its findings of fact for substantial evidence." (People v. Trinh (2014) 59 Cal.4th 216, 236.) The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) "In interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles that govern statutory construction." (People v. Rizo (2000) 22 Cal.4th 681, 685.) " 'The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.' " (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) "In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008.)
Arguments and Analysis
The People first argue that defendant did not meet her burden to establish in her petitions her eligibility for relief, including that each of the two checks was for an amount less than $950. However, the People conceded at the hearing that the check in case No. INF058230 was for $350, based on the police report, which is not part of the record on appeal. The People also conceded at the hearing that the two checks in case No. INF058383 "totaled $800." We see no reason to disbelieve the People's statements based on the police reports.
The People further argue that defendant both entered the check cashing store and the bank intending to commit felony identity theft rather than larceny, and that neither the check cashing store nor the bank was a "commercial establishment" within the meaning of section 459.5.
In neither of the two felony complaints did the People charge defendant with identity theft. Defendant ultimately pled guilty to two counts of commercial burglary. Identity theft was not placed in issue at the time of the plea.
In People v. Abarca (2016) 2 Cal.App.5th 475, 483-484, review granted October 19, 2016, S237106 (Abarca), we relied on the convicted offenses, not offenses that could have been filed but were not, such as identity theft. We noted that Proposition 47 provided a petitioning procedure by which an offender could seek resentencing on felony convictions that qualified under Proposition 47. Defendant here was not convicted of identity theft. We will not look behind defendant's actual convictions to find an uncharged crime that would make him ineligible. (People v. Berry (2015) 235 Cal.App.4th 1417, 1427-1428; People v. Maestas (2006) 143 Cal.App.4th 247.)
On review, we indulge in every presumption to uphold the judgment and look to the appellant to show error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) For the reasons stated in Abarca, supra, 2 Cal.App.5th 475, we reject the People's contention that defendant is ineligible for resentencing.
We note that the meaning of larceny as used in section 459.5 is on review by the California Supreme Court. (People v. Gonzales (2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171.) This court has also held that a check cashing business qualifies as a commercial establishment for purposes of section 459.5. (People v. Smith (2016) 1 Cal.App.5th 266, 272-274, review granted Sept. 14, 2016, S236112) --------
The People also contend that defendant is not entitled to resentencing because a bank and a check cashing store are not "commercial establishment[s]" within the meaning of section 459.5. That term is not defined in the Penal Code, and the People urge us to adopt a commonsense meaning, which would be its plain, ordinary meaning. The People contend that the voters intended to limit shoplifting to theft crimes of establishments which have goods for sale.
In Abarca, supra, 2 Cal.App.5th at pages 481-482, we rejected the same argument, noting that the term "commerce" is normally defined as the exchange of goods and services, and the term "establishment" is defined as a place of business. We explained: "Banks satisfy this definition. Bank customers use banks to deposit and withdraw funds in exchange for fees. In the context of approving banks' ability to collect fees from non-depositors who use their automatic teller machines, the U.S. Court of Appeals for the Ninth Circuit noted '[t]he depositing of funds and the withdrawal of cash are services provided by banks since the days of their creation. Indeed, such activities define the business of banking.' (Bank of America v. City & County of San Francisco (9th Cir. 2002) 309 F.3d 551, 563.) Thus, a [bank] provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term." (Abarca, supra, 2 Cal.App.5th at pp. 481-482.) Both a bank and a check cashing store therefore, are commercial establishments. We follow our precedent in Abarca, and reject the People's argument. (Ibid.)
DISPOSITION
We affirm the orders granting defendant's petitions to recall her sentence.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.