Filed 5/6/16 P. v. Slemmer CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063156

v.                                                                       (Super.Ct.No. RIF135101)

DANIEL HAYES SLEMMER,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Reversed.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




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                                      INTRODUCTION

       Defendant and appellant Daniel Hayes Slemmer appeals from the denial of his

petition under Proposition 47 and Penal Code section 1170.18,1 for resentencing of his

conviction of second degree burglary (§ 459) to misdemeanor shoplifting (§ 459.5).

Defendant contends he was eligible for resentencing because his offense of pawning a

stolen ring with a value of less than $950 fit the definition of the shoplifting offense. We

reverse.

                      FACTS AND PROCEDURAL BACKGROUND

       On February 22, 2007, defendant’s mother reported that a $600 ring was missing

from her room. It was discovered that defendant had pawned the ring for $30. A jury

found defendant guilty of second degree burglary (§ 459, count 1) and petty theft (§ 488,

count 2). Defendant admitted two prior strikes (§§ 667, subds. (c), (e)(2)(A), 1170.12,

subd. (c)(2)(A)) and six prior prison term convictions (§ 667.5, subd. (b)). The trial court

struck one of the strike priors and sentenced defendant to 10 years in state prison.

       On November 25 and December 10, 2014, defendant filed petitions for

resentencing under Proposition 47 and section 1170.18. The trial court denied the

petitions on the ground that defendant’s burglary offense did not qualify for resentencing.

Defendant moved for reconsideration, but the trial court denied his motion.




       1   All further statutory references are to the Penal Code.


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                                       DISCUSSION

       A.     Resentencing Under Section 1170.18

       On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods

and Schools Act, which went into effect the next day. (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, section 1170.18. Section 1170.18 creates a process through

which persons previously convicted of crimes as felonies, which would be misdemeanors

under the new definitions in Proposition 47, may petition for resentencing. (See

generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically,

section 1170.18, subdivision (a), provides: “A person currently serving a sentence for a

conviction, whether by trial or plea, of a felony or felonies who would have been guilty

of a misdemeanor under [Proposition 47] . . . had [Proposition 47] been in effect at the

time of the offense may petition for a recall of sentence before the trial court that entered

the judgment of conviction in his or her case to request resentencing in accordance with

Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473,

476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or

added by [Proposition 47].”

       B.     Standard of Review

       When interpreting a voter initiative, “we apply the same principles that govern

statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to

the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We


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construe the statutory language “in the context of the statute as a whole and the overall

statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the

voters’ intent, particularly the analyses and arguments contained in the official ballot

pamphlet.’” (Ibid.)

       C.     Analysis

       Defendant contends that his conviction of second degree burglary (§ 459) should

be reduced to misdemeanor shoplifting (§ 459.5). The People point out that

Proposition 47 does not address section 459 as an offense eligible for resentencing or

reclassification as a misdemeanor, and section 459 is not included in the list of offenses

set forth in section 1170.18, subdivision (a), for which sentencing relief may be

appropriate. Nonetheless, Proposition 47 added section 459.5, subdivisions (a) and (b),

which provide: “(a) 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). Any other entry into a

commercial establishment with intent to commit larceny is burglary. Shoplifting shall be

punished as a misdemeanor [with exceptions not here relevant]. [¶] (b) Any act of

shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who

is charged with shoplifting may also be charged with burglary or theft of the same

property.”

       The issue before us is whether appellant would have been guilty of misdemeanor

shoplifting, in violation of section 459.5, if Proposition 47 had “been in effect at the


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time” that he entered the pawn shop. (§ 1170.18, subd. (a).) As defined by section 459.5,

the offense of shoplifting requires an “intent to commit larceny.” Defendant

characterizes his crime as “entering an open pawn shop—a commercial establishment—

with the intent to commit fraud, i.e., pawn a ring which was not his to pawn,” and he

asserts that such conduct is larceny as a matter of law. It was undisputed that the value of

the ring was less than $950.

          Under section 484, subdivision (a), “theft” is broadly defined: “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 . . . is

guilty of theft.” More specifically, section 484.1, subdivision (a), defines conduct such as

defendant’s to be theft: “Any person who knowingly gives false information or provides

false verification as to the person’s true identity or as to the person’s ownership interest

in property or the person’s authority to sell property in order to receive money or other

valuable consideration from a pawnbroker or secondhand dealer and who receives money

or other valuable consideration from the pawnbroker or secondhand dealer is guilty of

theft.”




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       The People concede that “section 490a has long defined larceny as theft”2 and that

“[i]f one presumes the voters were aware of section 490a when they passed Proposition

47 [citation], there is a strong argument that section 459.5 should be interpreted to mean

that all persons who enter a store (during regular business hours) with the intent to

commit any type of theft (of property valued at $950 or less) are now liable for

misdemeanor shoplifting.” The People nonetheless argue that the term “shoplifting” in

section 459.5 introduces ambiguity because the term has the common meaning of

encompassing “only the theft of openly displayed merchandise from commercial

establishments.” The People also concede that the ballot pamphlet provided no guidance

to the voters to resolve the supposed ambiguity, but argue that this court should adopt the

traditional narrow definition of shoplifting.

       It is a well-established principle of statutory construction that the enacting body,

including the voters who adopt an initiative measure, “is deemed to be aware of existing

laws and judicial constructions in effect at the time legislation is enacted.” (People v.

Weidert (1985) 39 Cal.3d 836, 844.) Thus, regardless of any common definition of

shoplifting, we must conclude that the voters were aware that the use of the term

“larceny” in the new definition of shoplifting incorporated all forms of theft as provided

in section 490a.




       2 Section 490a provides: “Wherever any law or statute of this state refers to or
mentions larceny, . . . said law or statute shall hereafter be read and interpreted as if the
word ‘theft’ were substituted therefor.”


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       Moreover, the voters’ general intent behind Proposition 47 was to “ensure that

prison spending is focused on violent and serious offenses, to maximize alternatives for

nonserious, nonviolent crime, and to invest the savings generated from this act into

prevention and support programs in K-12 schools, victim services, and mental health and

drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, see

<http://vig.cdn.sos.ca.gov/2014/general/en/pdf/ complete-vigr1.pdf> [as of May 3,

2016].) Defendant’s conviction was unquestionably nonviolent, so reducing it to a

misdemeanor would serve the purposes behind Proposition 47.

       We conclude that defendant was eligible for resentencing to a misdemeanor under

section 459.5. He had “enter[ed] a commercial establishment [the pawn shop] with intent

to commit larceny while that establishment [was] open during regular business hours,”

and “the value of the property taken or intended to be taken [did] not exceed” $950.

(§ 459.5, subd. (a).)

                                     DISPOSITION

       The order appealed from is reversed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                               McKINSTER
                                                                                           J.
We concur:


RAMIREZ
                        P. J.

HOLLENHORST
                           J.



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