Filed 5/3/16 P. v. Heath 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063143

v.                                                                      (Super.Ct.No. RIF1400455)

DAVID ANTHONY HEATH,                                                    OPINION

         Defendant and Appellant.




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

Affirmed in part, reversed in part with directions.

         Thomas K. Macomber, 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, Charles C. Ragland and Marvin E.

Mizell, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant David Heath, on probation for four counts of second degree burglary

(Pen. Code, § 459), one count of receiving stolen property (Pen. Code, § 496, subd. (a)),

and one count of acquiring a credit card account (Pen. Code, § 484e, subd. (d)), brought a

petition pursuant to Penal Code section 1170.18, subdivision (a), to reclassify his

convictions as misdemeanors and for resentencing. The trial court granted the motion

only as to the receiving stolen property conviction, finding defendant’s other convictions

were ineligible because the locker room of L.A. Fitness was not a commercial

establishment, and because the credit card count was not listed in Penal Code section

1170.18, subdivision (a). Defendant appealed.

       On appeal, defendant argues that (1) the court erred in finding that the locker room

of L.A. Fitness was not part of a commercial establishment, and (2) convictions for

violating Penal Code section 484e, subdivision (d), are eligible for relief within the

meaning of Proposition 47 and Penal Code section 1170.18, subdivision (a). We reverse.

                                       BACKGROUND

       There was no preliminary hearing or probation report in this case. Although the

People recited certain factual matters in its opposition to defendant’s petition for

resentencing, there was no stipulation to or admission of the facts recited there, so we

may not rely on them. (See People v. Triplett (2016) 244 Cal.App.4th 824, 831, fn. 6

[where defendant admitted certain facts by agreeing with the prosecutor’s representation,

which aided his eligibility by showing the amount involved was less than $950].) We




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therefore must rely on the factual basis as found by the court when it accepted

defendant’s change of plea and the allegations of the complaint.

       On December 10, 2013, defendant entered L.A. Fitness and broke into a locker

therein; he also entered a Dodge Ram with the intention of committing theft. On July 21

and again on December 20, 2013, defendant entered two separate L.A. Fitness

establishments with the intention of committing theft. On December 23, 2013, defendant

was in possession of a class ring, knowing it had been obtained by theft. On that same

day, he was in possession of a credit card or access card that was issued to another,

without the cardholder’s consent, for the purpose of using it fraudulently.

       On February 7, 2014, a complaint was filed alleging three counts of second degree

burglary (Pen. Code, § 459, counts 1, 3, 4), one count of burglary of a locked motor

vehicle (Pen. Code, § 459, count 2), one count of receiving stolen property (Pen. Code,

§ 496, subd. (a), count 5), and one count of acquiring or retaining access card account

information with respect to an access card issued to another, without consent of the

owner (Pen. Code, § 484e, subd. (d)). On February 26, 2014, defendant changed his plea

to guilty as to all counts in return for an agreement by the People that he would be

granted probation, pay restitution to the victim, and serve 180 days in jail.

       On March 17, 2013, defendant was placed on three years formal probation on

conditions that serve 180 days, with credit for four days served; the balance of the jail

time was to be served on work release. The People indicated that victim restitution in the

amount of $900 was to be imposed, and the court ordered defendant to pay that amount.



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       On November 4, 2014, the electorate passed Proposition 47, the Safe

Neighborhoods and Schools Act, which reclassified commercial burglary involving less

than $950 (Pen. Code, § 459.5), receiving stolen property (Pen. Code, § 496), and petty

theft with a prior theft related offense (Pen. Code, § 666), among other non-serious

felonies, as misdemeanors. The Act went into effect the next day. (Cal. Const., art. II, §

10.) After the effective date, grand theft involving property that does not exceed $950 is

petty theft, unless the defendant has prior convictions for offenses specified in clause (iv)

of subparagraph (C) of paragraph (2) of subdivision (e) of section 667, or for an offense

requiring registration pursuant to section 290. (Pen. Code, § 490.2, subd. (a).)

       On December 1, 2014, defendant filed a petition for resentencing and application

for reduction to misdemeanor, as to all of his counts of conviction. On January 26, 2015,

the People filed an opposition only as to counts one through four, and agreed the court

may re-sentence defendant on counts five and six. On February 11, 2015, the People

filed another opposition to defendant’s petition for resentencing. In the facts section of

the People’s brief, the People indicated they did not believe defendant’s conviction for

possessing someone’s credit card was eligible for reduction, although no argument was

presented in the points and authorities, which addressed only the question of whether

L.A. Fitness constituted a commercial establishment.

       The matter came on for hearing on March 13, 2015, at which time defense counsel

submitted on the issue as to whether the vehicle burglary qualified for reduction,




                                              4
apparently conceding it was ineligible.1 As to counts one, three, and four, the court

found that the locker room of the L.A. Fitness did not qualify as a commercial

establishment. It also found the vehicular burglary was ineligible based on the parties’

submission on that issue. Further, it found that the acquisition or retention of an access

card (Pen. Code, § 484e, subd. (d)) was ineligible because it was not included in the

statute. However, the court deemed the receiving stolen property count to be eligible for

resentencing because the amount of loss was less than $950. The court therefore

resentenced defendant on count five to 180 days, with credit for 90 days actually served,

plus 90 days conduct credit pursuant to Penal Code section 4019.

       Defendant appealed and obtained a certificate of probable cause.

                                           DISCUSSION

       1. L.A. Fitness, and All Its Interior Spaces, Constitutes a Commercial

           Establishment.

       Defendant argues that the trial court erred in finding that the locker room of L.A.

Fitness did not qualify as a “commercial establishment,” within the meaning of Penal

Code section 459.5, rendering defendant ineligible for resentencing on counts one, three,

and four. We agree.

       We begin by reviewing the statutory language. Proposition 47 created a new

sentencing provision in Penal Code section 1170.18. (People v. Rivera (2015) 233


       1 A burglary of a private individual’s locked personal vehicle would not qualify as
a burglary of a commercial establishment.


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Cal.App.4th 1085, 1092.) In pertinent part, subdivision (a) of Penal Code section1170.18

provides that “[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 the act

that added this section . . . had this act 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 this act.”

(§ 1170.18, subd. (a); People v. Rivera, supra, at p. 1092.)

       Proposition 47 was intended to reduce penalties for certain nonserious and

nonviolent property and drug offenses from wobblers or felonies to misdemeanors. (T.W.

v. Superior Court (2015) 236 Cal.App.4th 646, 652.) A person who satisfies the criteria

in Penal Code section 1170.18, subdivision (a), shall have his or her sentence recalled

and be resentenced to a misdemeanor, unless the court, in its discretion, determines that

resentencing the petitioner would pose an unreasonable risk of danger to public safety.

(Pen. Code, § 1170.18, subd. (b).)

       In interpreting a voter initiative such as Proposition 47, we apply the same

principles that govern statutory construction. (People v. Rivera, supra, 233 Cal.App.4th

at p. 1099.) “‘“The fundamental purpose of statutory construction is to ascertain the

intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]’”




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[Citation.]” (Rivera, supra, at p. 1099.) To construe a voter initiative, the voters’ intent

governs. (Id., at pp. 1099-1100, citing People v. Jones (1993) 5 Cal.4th 1142, 1146.)

       To determine voters’ intent, we begin with the statutory language itself. (People v.

Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192-193.) We look first to the words

the voters used, giving them their usual and ordinary meaning. (Rivera, supra, 233

Cal.App.4th at p. 1100.) Where the language of a statute is unambiguous, the plain

meaning controls. (People v. Leiva (2013) 56 Cal.4th 498, 506.) No published decision

to date has found the language of Penal Code section 1170.18 to be vague or ambiguous.

       The ballot pamphlet explained the purpose of the initiative was to save money

while insuring that people convicted of murder, rape, and child molestation would not

benefit from the act. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), pp. 36-37, 70.) The fiscal

effects would be achieved by reducing the state prison and county jail populations, as

well as the attendant court, prosecution and defense costs for non-serious property

offenses, allowing investments in programs that reduce crime and improve public safety.

(Id. at pp. 37, 70.) We conclude that the intent of the voters was to effectuate this

purpose, and that it is having the desired effect.2 The purpose would not be well served

       2  According to the Legislative Analyst’s Office, “the administration estimates that
$29.3 million from the General Fund will be deposited into the Safe Neighborhoods and
Schools Fund (SNSF) on July 31, 2016, based on its estimates of the savings and costs
resulting from the implementation of Proposition 47.” (The 2016-2017: Fiscal Impacts of
Proposition 47, Legislative Analyst, February 2016,
http://www.lao.ca.gov/Reports/2016/3352/fiscal-impacts-prop47-021216.pdf, as of
March 25, 2016, p. 7.) This figure represents net savings, after deducting for the costs
pertaining to increased parole population and resentencing costs. (Ibid.) The
Administration estimates a total of $62.7 million in savings from the implementation of
                                                                  [footnote continued on next page]


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by a strained or narrow interpretation that results in further incarceration of non-violent

and non-serious felons at public expense.

        Proposition 47 amended the language of certain statutes that previously defined

felony offenses, explicitly reduced a number of specified offenses from felonies to

misdemeanors, and added new misdemeanor offenses to the Penal Code. (People v. Chen

(2016) 245 Cal.App.4th 322, 326.) Pertinent to this case, the Act created a new crime of

shoplifting, 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).” (Pen. Code, § 459.5, subd. (a).) Shoplifting, as defined in Penal Code

section 459.5, subdivision (a), is punishable as a misdemeanor unless the defendant has

certain disqualifying prior convictions. (Ibid.) Except where the defendant enters a

commercial establishment with the intent to commit a non-larcenous crime within, any

entry of a commercial establishment with intent to commit larceny therein constitutes

shoplifting. (Pen. Code, § 459.5, subd. (a); see also, People v. Bias (2016) 245




[footnote continued from previous page]
[footnote continued from previous page]
Proposition 47 for Fiscal Year 2015-2016. (Id., at p. 8.) This includes prison savings of
$52.2 million, Department of State Hospitals savings of $8.7 million, and court savings
of $1.7 million. (Ibid.) The Legislative Analyst commented that the prison and court
savings are likely underestimated, and that the SNSF deposit in 2016-2017 could be
around $100 million higher than the Administration’s estimate of $29.3 million. (Id. at
pp. 8-9.)


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Cal.App.4th 302, 306-307.) The question presented here is whether a commercial

establishment includes all the interior areas.

       Recent cases have referred to a number of dictionary and other definitions of the

terms “commerce” and “establishment.” (See In re J.L. (2015) 242 Cal.App.4th 1108,

1114 [concluding that a school is not a commercial establishment].) However, no cases

have defined the precise term, “commercial establishment,” and we have found only one

source, the Code of Federal Regulations, which actually defines the specific term,

“commercial establishment.” Under that Code, a “commercial establishment” is an

“establishment used for commercial purposes, such as bars, restaurants, private offices,

fitness clubs, oil rigs, retail stores, banks and financial institutions, supermarkets, auto

and boat dealerships, and other establishments with common business areas.” (37 C.F.R.

§ 258.2, subd. (a) [copyright regulation defining term].)

       Nothing in the statutory language or the ballot pamphlet supports the position that

the voters intended to limit the term “commercial establishment” to a “retail

establishment.” (People v. Root (2016) 245 Cal.App.4th 353 [rejecting an argument that

“shoplifting” is restricted to stealing goods or merchandise displayed in retail stores].)

To the contrary, if the voters had intended such a limitation, it would have been a simple

matter to say so. L.A. Fitness, a profit-making business, is a commercial establishment

and the trial court appears to have acknowledged as much. However, it went further to

find that the locker room within L.A. Fitness was not a commercial establishment, based

on information outside the record of conviction.



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       In considering a defendant’s petition for resentencing, “the trial court must

determine the facts needed to adjudicate eligibility based on evidence solely from the

record of conviction.” (People v. Bradford (2014) 227 Cal.App.4th 1322, 1327.) In

other words, absent an agreement of the parties, the trial court’s determination of

eligibility is limited to the record of conviction. (People v. Triplett, supra, 244

Cal.App.4th at pp. 831-832.) The record of conviction in this case establishes that

defendant was charged with entering L.A. Fitness with the intent to commit theft, and

pled guilty to the same. In taking defendant’s change of plea, the court asked, “[I]s it true

that on December 10th, 2013, you went into the L.A. Fitness and you broke into a Dodge

Ram with the intention of stealing something?” There is nothing in the record of

conviction relating to the entry of a locker room.

       Moreover, there was no agreement that the trial court could consider factual

matters dehors the record of conviction. (See People v. Triplett, supra, 244 Cal.App.4th

at pp. 831-832.) In Triplett, the reviewing court held “that in determining eligibility for

sentence modification under the Act, a trial court . . . may also consider any factual

stipulations or clear agreements by the parties that add to, but do not contradict, the

record of conviction.” (Id., at p. 832.)

       Here, the court agreed that LA Fitness was a commercial establishment. But it

went further and found that the locker room of L.A. Fitness was not part of the

commercial establishment. The locker room is not mentioned in the record of conviction.

Instead, the court’s finding was based on matters submitted by the People in its



                                              10
opposition papers, without any agreement or stipulation of the parties that it might

consider the information.3

       Absent a stipulation or agreement by the parties, information which contradicts the

record of conviction could not be considered by the court in ruling on defendant’s

petition for resentencing. Based on the record of conviction before us, the crime of

which defendant was convicted was a burglary of a commercial establishment, during

regular business hours, which is currently a misdemeanor if the amount taken or intended

to be taken is less than $950. In the trial court, the People made no argument that the

value of the property was more than $950, and the amount it sought for restitution was

less than $950. Defendant is eligible for resentencing on counts one, three, and four.

       2. A Felony Conviction of Unauthorized Possession of a Credit or Access Card

           Constitutes Larceny, Which Is a Misdemeanor Where the Value of the Victim’s

           Loss is Less Than $950.

       Defendant argues that the denial of his petition for resentencing on count six,

relating to the unauthorized possession of a credit card without consent of the holder, was

error. He contends that the acquisition of a credit card without consent of the owner

constitutes petty theft within the meaning of Penal Code section 490.2, added as part of

Proposition 47. We agree.




       3 There may be situations in which a preliminary hearing transcript or other
matter forms a part of the record of conviction, which may be considered without the
need for a stipulation, but that is not before us.


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       Whether the credit card offense is considered a provision defining grand theft,

theft of money, labor or property, valued at $950 or less, is a question currently pending

before the California Supreme Court.4 Nevertheless, we examine the statutory language.

       Penal Code section 484e, subdivision (d) makes it “grand theft” to acquire account

information with respect to an access card validly issued to another with the intent to

defraud. (People v. Molina (2004) 120 Cal.App.4th 507, 519.) Penal Code section

490.2, adopted as part of Proposition 47, states that notwithstanding any other provision

defining “grand theft,” the theft of money, labor or property valued at $950 or less shall

be considered misdemeanor petty theft. (Pen. Code, § 490.2, subd. (a).) Within the plain

meaning of the statute, unauthorized use of a credit card of another without the consent of

the cardholder pursuant to Penal Code section 484e, subdivision (d), constitutes grand

theft. Where the value of the loss flowing from the theft is less than $950, the offense is

a misdemeanor pursuant to Penal Code section 490.2.

       Here, the record of conviction shows that defendant was ordered to pay victim

restitution in the amount of $900, overall, at the People’s instance and request. In the

People’s opposition to defendant’s petition for resentencing and at the hearing on the

petition, no argument was made that the amount of the victim’s loss exceeded $950. We

       4 See, People v. Grayson (2015), formerly at 241 Cal.App.4th 454, review
granted December 9, 2015, S231757; People v. Cuen (2016), formerly at 241
Cal.App.4th 1227, review granted January 20, 2016, S231107; People v. Thompson
(2015), formerly at 243 Cal.App.4th 413, review granted March 9, 2016, S232212;
People v. King (2015), formerly at 242 Cal.App.4th 1312, review granted February 24,
2016, S231888; and People v. Romanowski (2015), formerly at 242 Cal.App.4th 151,
review granted January 30, 2016, S231405.


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conclude the value of the loss was less than $950, rendering defendant eligible for

resentencing on count six.

                                           DISPOSITION

       The judgment is reversed and remanded for resentencing on counts one, three,

four, and six. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                  RAMIREZ
                                                                                      P. J.
We concur:
HOLLENHORST
                           J.
McKINSTER
                           J.




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