People v. Smith
People v. Smith
Opinion of the Court
SLOUGH J.
*719Defendant Michael Lee Smith appeals from the summary denial of his Proposition 47 resentencing petition. (Pen.Code, § 1170.18.) Using Riverside County Superior Court's standard petitioning form, Smith sought to have two felony second degree commercial burglary (§ 459)
Smith argues the victim check exchange business is a commercial establishment and there is otherwise insufficient evidence to support the court's denial of his petition as to counts 1 and 2. We agree. The People urge us to affirm the ruling on the alternative ground that Smith failed to meet his prima facie burden of showing he was entitled to relief, however, the People conceded that issue in their response. Because we conclude Smith is otherwise eligible for relief, we reverse the superior court's ruling with directions to either summarily grant his petition or hold an evidentiary hearing to resolve any material factual issues revealed by the superior court's review of the record of conviction.
I
FACTUAL BACKGROUND
The Riverside County District Attorney charged Smith with one felony count of burglary of a Check Exchange located in Hemet, California (§ 459, count 1), one felony count of burglary of a Staples located in Hemet, California (§ 459, count 2), and one felony count of making, passing, uttering, publishing, or possessing counterfeit bills (§ 476, count 3). The information also alleged Smith had six prison priors (§ 667.5, subd. (b)) and three strike priors (§§ 667, subds.(c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
In the first burglary count, the prosecution accused "MICHAEL LEE SMITH of a violation of Penal Code section 459, a felony, in that on or about March 8, 2010, *601in the County of Riverside, State of California, [he] did willfully and unlawfully enter a certain building located at CHECK EXCHANGE, 1015 W. FLORIDA AVE., HEMET, with intent to commit theft and a felony."
In the second burglary count, the prosecution accused "MICHAEL LEE SMITH of a violation of Penal Code section 459, a felony, in that on or about March 8, 2010, in the County of Riverside, State of California, [he] did willfully and unlawfully enter a certain building located at STAPLES, 3381 W. FLORIDA AVE., HEMET, with intent to commit theft and a felony."
*721In the counterfeiting count, the prosecution accused "MICHAEL LEE SMITH of a violation of Penal Code section 476, a felony, in that on or about March 8, 2010, in the County of Riverside, State of California, [he] did willfully and unlawfully make, pass, utter, publish, or possess, with intent to defraud any other person, a COUNTERFEIT BILLS [sic ]."
On January 12, 2011, Smith pled guilty to all three counts, six prison priors, and one strike prior. On February 4, 2011, the trial court sentenced Smith to an aggregate term of 13 years 4 months in state prison, including six years for the burglary of the Check Exchange, one year four months for the counterfeiting offense, and a one-year enhancement for each of the six prison priors. The trial court stayed the sentence for the burglary of the Staples under section 654.
On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft- and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as shoplifting], 490.2, subd. (a) [changing punishment for some theft offenses], 473, subd. (b) [changing punishment for some forgery and counterfeiting offenses].) The initiative also created a resentencing procedure allowing offenders to petition for resentencing if they are "currently serving a sentence for a conviction" for committing a felony and "would have been guilty of a misdemeanor under" the provisions added by Proposition 47. (§ 1170.18, subd. (a).)
On November 19, 2014, Smith submitted a form petition asking the superior court to resentence him on all three counts under section 1170.18, subdivision (a).
On November 26, 2014, the prosecution submitted a form response indicating Smith had "filed a 'Petition for Resentencing' on felony count(s) 1, 2, 3 ... violation of 459 PC (2ND), 459 PC (2nd), 476 PC pursuant to Penal Code § 1170.18." The prosecution marked the box indicating "[d]efendant is still serving his/her sentence and is entitled to resentencing," not the box indicating "[d]efendant is not entitled to the relief requested." However, the prosecution requested a hearing in connection with the conviction for burglary of the Check Exchange, stating the "People do not believe count one is *722eligible as [Check Exchange] is not a commercial establishment." The prosecution's response also indicated the hearing should be set to determine "[r]e-sentencing on Ct 2."
On January 2, 2015, the superior court entered an order denying Smith's petition. The order indicates the superior court did not hold a hearing on his petition. The order states only that Smith has "476-counterfeit bills-not qualifying felony; 459-2 - presenting counterfeit bills at 'check exchange.' "
II
DISCUSSION
A. Legal Background
On November 4, 2014, the voters of California enacted "The Safe Neighborhoods *602and Schools Act" (hereinafter Proposition 47), which became effective the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 47 changed portions of the Penal Code to reduce certain theft-related offenses from felonies or wobblers to misdemeanors, unless the offenses were committed by certain ineligible offenders. (People v. Rivera (2015)
The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh v. West Sonoma County Union High School Dist. (2003)
B. Petition for Resentencing on Burglary of the Check Exchange
Smith contends the superior court erred by determining he was not entitled to resentencing on his conviction for burglarizing the Check Exchange under new section 459.5 on the ground that the Check Exchange is not a commercial establishment. We agree.
Proposition 47 added section 459.5 to the Penal Code. The new section provides: "(a) Notwithstanding Section 459 [burglary], 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). Any other entry into a commercial establishment with intent to commit larceny is burglary." Except in the cases of offenders with specified serious prior convictions, section 459.5 directs "[s]hoplifting shall be punished as a misdemeanor ." (§ 459.5, subd. (a), italics added.) Subdivision (b) further directs "[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting " and that "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subd. (b), italics added.) The Legislative Analyst for Proposition 47 explained: "Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Cal. Voter Information Pamp., Gen. Elec., *603supra, analysis of Prop. 47 by Leg. Analyst, p. 35.)
Under section 459.5, subdivision (a), Smith would be entitled to resentencing for misdemeanor shoplifting if (1) Check Exchange is a commercial establishment, (2) Smith entered Check Exchange with the intent to commit larceny,
The People do not defend the position that a check cashing business is not a commercial establishment on appeal. However, we address the issue because it was the basis of the superior court's ruling and the law on the issue is unsettled. Neither Proposition 47 nor the Penal Code defines "commercial establishment." We therefore understand it to have the meaning it bears in ordinary usage. (See Title Ins. & Trust Co. v. County of Riverside (1989)
"When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word." (Wasatch Property Management v. Degrate (2005)
A check cashing business clearly satisfies this definition. A person in possession of a check made out in his or her name can endorse the check to the check cashing business and receive the proceeds in cash, less a commission paid to the check cashing business. The check cashing business then redeems the check from the issuing bank for the full amount of the check. (See Grasso v. Crow (1997)
We are aware it is possible to take a narrower view of the ordinary meaning of "commercial establishment." Specifically, some definitions of "commerce" and "commercial" limit it to "the buying and selling of goods ." (E.g., American Heritage Dict. (New College ed. 1976) p. 267, italics added.) Under that definition, check cashing businesses would not be commercial establishments because they offer services, not goods or merchandise. At best, this alternative definition creates an ambiguity in the statute. However, as the initiative directs, we construe the act "broadly ... to accomplish its purposes." (Cal. Voter Information Pamp., Gen. Elec., supra, text of Prop. 47, p. 74, § 15; see also id. at p. 74, § 18 [act shall be "liberally construed to effectuate its purposes"].) Section 3 of the initiative specifies it was the "purpose and intent of the people of the State of California to:" "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession," and "[a]uthorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors." (Id. at p. 70, § 3, subds. (3) & (4).) Adopting the limited definition of "commercial establishment" will frustrate those purposes and result in the continued incarceration of persons who committed petty theft crimes. Accordingly, we construe section 459.5, subdivision (a) broadly to include as shoplifting thefts from commercial ventures, such as check cashing stores, which sell services as well as goods and merchandise.
The People contend that "even assuming ... Check Exchange is a commercial establishment, the trial court properly denied the petition because appellant failed to show that he committed larceny, meaning a trespassory taking." However, section 490a provides that "any law or statute ... [that] refers to or mentions larceny ... shall hereafter be read and interpreted as if the word 'theft' were substituted therefor." Section 459.5, subdivision (a), defines shoplifting as "entering a commercial establishment with intent to commit larceny." Thus, entering a commercial establishment with intent to commit theft is shoplifting. The prosecution charged Smith with entering Check Exchange "with intent to commit theft and a felony" and Smith pled guilty to that charge. The People do not contend there was any predicate for Smith's burglary conviction other than the theft crime. It follows that Smith need do no more to establish he entered the Check Exchange with the intent to commit larceny.
*726We conclude that larceny as the term appears in section 459.5, subdivision (a) includes theft by false pretenses and does not require a trespassory taking. Our Supreme Court has held "[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction." (People v. Parson (2008)
The People contend we should affirm on the alternative ground that Smith did not meet his burden of proving that "what he took had a value of $950 or less." " '[W]e may affirm a trial court judgment on any [correct] basis presented by the record whether or not relied upon by the trial court. [Citation.]' [Citation.]" (ASP Properties Group, L.P. v. Fard, Inc. (2005)
In the context of a petition for habeas corpus, where the People's response to a petition admits or effectively concedes facts supporting a petitioner's entitlement to relief by failing to contest them, the court may consider those facts as no longer at issue and can grant relief without an evidentiary hearing. (In re Sixto (1989)
The procedure of treating the petition and response as defining and narrowing the issues "provide[s] a framework in which a court can discover the truth and do justice in timely fashion." (Duvall, supra, 9 Cal.4th at p. 477,
Unlike the People, the superior court is not bound by the People's representation that a petitioner is entitled to resentencing. (See People v. Alvarado (1982)
If on remand the superior court finds there is a material factual issue regarding the amount of loss, the court may hold an evidentiary hearing to resolve that issue. If the superior court determines a hearing is necessary, it shall permit Smith to supplement the record by submitting evidence related to the value of any stolen property or counterfeit bills connected with his *728conviction. Such evidence may include his own testimony, "court documents, record citations, or other probative evidence showing he is eligible for relief." (Perkins, supra, 244 Cal.App.4th at p. 140,
C. Petition for Resentencing on the Burglary of Staples
Smith contends the superior court erred in denying his petition for resentencing on his conviction for the burglary of Staples (count 2). It is unclear on the record before us whether the superior court even considered Smith's eligibility for resentencing on that conviction. The superior court did not mention count 2 in its order, and the minute order indicates simply that the superior court denied the entire petition without differentiating the three convictions. However, the prosecution conceded Smith was eligible on count 2. Its response to the petition indicated Smith "is entitled to resentencing" and requested a hearing to determine "[r]e-sentencing on Ct. 2."
The People ask that we affirm the superior court order on the ground Smith did not carry his burden of proving the theft was valued at less than $950. However, as we discussed above, the prosecution's concession of Smith's eligibility forecloses that possibility. The concession is binding on the People. (People v. Mendez, supra, 234 Cal.App.3d at p. 1783,
Thus, we hold the record on appeal does not support affirming the superior court on the ground that Smith failed to carry his burden of proof as to the value of the stolen property. As a result, and in combination with our conclusion that Smith's conviction for burglarizing Staples is a qualifying conviction, and would constitute shoplifting under new section 459.5, subdivision (a), provided the value of the stolen property did not exceed $950, we reverse the denial of Smith's petition for resentencing on count 2, and remand for further proceedings.
On remand, the superior court may accept the concession and resentence Smith or, if the record of conviction shows there is a material factual issue about the amount of loss (or some other factual issue, like whether Staples *729was open for business at the time of the offense), may set a hearing and permit Smith to supplement the record with evidence related to the value of the loss.
III
DISPOSITION
We reverse the order denying Smith's petition for resentencing on counts 1 and 2 and remand for further proceedings consistent with this opinion. On remand, the court may grant the petition based on the People's concessions or it may hold a hearing to resolve any material factual issues affecting his eligibility.
We concur:
HOLLENHORST, Acting P.J.
MILLER, J.
Unlabeled statutory citations refer to the Penal Code.
Smith mistakenly checked the box for "Penal Code § 476a Writing Bad Checks" instead of the box for section 473, which is the provision setting out punishment for Smith's conviction for violating section 476. The superior court's form did not include section 476 as an option. The prosecution and the superior court correctly disregarded the error.
Smith did not appeal the denial of resentencing on his conviction for making, passing, or possessing counterfeit bills.
Entry must be "while th[e] establishment is open during regular business hours," (§ 459.5, subd. (a) ), but that fact is not in question.
Some courts have reached the contrary conclusion that shoplifting under section 459.5 requires a taking without the property owner's consent on the basis of the discussion of robbery (§ 211) in People v. Williams (2013)
The superior court also denied Smith's petition for resentencing on his section 476 conviction (count 3) on the ground passing a counterfeit bill is not a qualifying felony. Smith has not appealed that decision, so we do not reach it. However, we note Proposition 47 amended section 473, under which Smith was sentenced for violating section 476, to provide "any person who is guilty of forgery relating to a ... bank bill, [or ] note ... where the value of the ... bank bill, [or ] note ... does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year." (Italics added.) Since the superior court refused Smith's request for resentencing, the Third Appellate District has concluded passing a counterfeit bill is a qualifying conviction. (People v. Valencia (2016)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.