Filed 4/27/16 P. v. Oviedo CA4/2
See Dissenting Opinion
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                      E063216

v.                                                                      (Super.Ct.No. RIF1105870)

JESSE OVIEDO,                                                           OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,

Judge. Affirmed.

         Cindy Brines, 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, and Marvin E. Mizell and

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant and appellant, Jesse Oviedo, filed a petition for resentencing pursuant

to Penal Code section 1170.18,1 which the court denied. On appeal, defendant contends

the court erred in denying his petition. We affirm.

                        I. FACTS AND PROCEDURAL HISTORY

       On June 29, 2012, the People charged defendant by information with six counts of

second degree burglary (§ 459, counts 1-4, 7, & 9), unlawfully obtaining personal

identifying information for the purpose of obtaining value (§ 530.5, count 5), and two

counts of signing the name of another person for the payment of money (§ 470, subd. (a),

counts 6 & 8). The People additionally alleged defendant had suffered a prior strike

conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

       On December 19, 2013, defendant pled guilty to one count of second degree

burglary and admitted the prior strike conviction. In return, all remaining charges were

dismissed and the People agreed to a sentence consisting of the low term of 16 months,

doubled to 32 months pursuant to the prior strike conviction.

       The court asked defendant if it was “true that on October 7th, 2011, in the County

of Riverside, you went into a place in Norco with the idea to commit a theft or some

felony inside; is that true?” Defendant answered, “Yes.” Defendant’s plea agreement

reflects that the factual basis for the plea consisted of defendant’s agreement that he “did

the things that are stated in the charges that I am admitting.” The minute order reflects

that the court found the “factual basis for the plea is based on [the] Oral Statement [of]

       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                              2
Defendant on the record.” On February 7, 2014, the court sentenced defendant to 32

months’ incarceration.

       On November 18, 2014, defendant filed a petition for resentencing. On December

19, 2014, the People filed a response stating defendant was ineligible for resentencing

pursuant to section 1170.18 because his burglary was not of a commercial establishment.

       On February 27, 2015, the People filed a formal opposition to defendant’s motion

in which they recounted the facts pertaining to the initial charges filed against defendant.

According to the People, defendant had entered the office of a temporary employment

agency on three separate occasions on three separate dates identifying himself as the

victim and requesting the victim’s paychecks in the amounts of $231.83, $178.86, and

$128.00, respectively. Thereafter, when the victim came to pick up his paychecks,

agency personnel discovered they had given the paychecks to the wrong person. On a

fourth date, defendant entered the agency’s office and requested another of the victim’s

paychecks, at which time agency personnel called the police and defendant was arrested.

       The People argued that the temporary employment agency did not meet the

definition of a “commercial establishment” such that defendant would be entitled to

resentencing pursuant to section 1170.18 for a misdemeanor conviction under the newly-

created crime of shoplifting under section 459.5. On March 13, 2015, defendant filed a

formal reply in which he maintained that the temporary employment agency qualified as

a “commercial establishment” under the shoplifting statute such that defendant should be

resentenced to the misdemeanor offense.



                                             3
       At the hearing on the petition on March 13, 2015, the court stated: “[W]hen you

use the word ‘shoplifting,’ you get the vision of somebody going into Walmart and

stealing a, you know, box of Tide or whatever, but the question is how much farther than

the clear-cut case of going into a retail store and stealing something does the word

‘shoplifting’ reach. And one parameter is commercial establishment, which could well

include a bank. [¶] But this is another step. This is an employment agency where the

gentleman goes in and claims he’s somebody else and gets their check. So I’m ruling

that’s beyond even [an] expanded definition of commercial establishment, and, therefore,

the motion is denied.”

                                    II. DISCUSSION

       Defendant contends the court erred in declining to recharacterize, pursuant to

section 1170.18, defendant’s conviction for second degree burglary as a misdemeanor

conviction for shoplifting under section 459.5. Thus, defendant contends the court erred

in denying his motion for resentencing. We disagree.

       “‘On November 4, 2014, the voters enacted Proposition 47, “the Safe

Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the

next day. [Citation.]’ [Citation.] ‘Proposition 47 makes certain drug- and theft-related

offenses misdemeanors, unless the offenses were committed by certain ineligible

defendants. These offenses had previously been designated as either felonies or wobblers

(crimes that can be punished as either felonies or misdemeanors).’ [Citation.] To this




                                             4
end, Proposition 47 . . . added sections 459.5 . . . and 1170.18 to the Penal Code . . . .

[Citation.]” (People v. Contreras (2015) 237 Cal.App.4th 868, 889-890.)

       “Section 459.5 defines the crime of ‘shoplifting.’ It provides, in relevant part:

‘(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 . . . [¶] (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.’” (People v. Contreras, supra,

237 Cal.App.4th at pp. 890-891.) Section 459.5 does not define “commercial

establishment.”

       “‘Proposition 47 also created a new resentencing provision: section 1170.18.

Under section 1170.18, a person “currently serving” a felony sentence for an offense that

is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and

request resentencing in accordance with the statutes that were added or amended by

Proposition 47. [Citation.] A person who satisfies the criteria in section 1170.18 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




                                               5
unreasonable risk of danger to public safety.” [Citation.]’ [Citation.]” (People v.

Contreras, supra, 237 Cal.App.4th at p. 891.)

       “‘“In interpreting a voter initiative . . . we apply the same principles that govern

statutory construction. [Citation.] Thus, ‘we turn first to the language of the statute,

giving the words their ordinary meaning.’ [Citation.]”’ [Citations.] ‘“The statutory

language must also be construed in the context of the statute as a whole and the overall

statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is

ambiguous, ‘we refer to other indicia of the voters’ intent, particularly the analyses and

arguments contained in the official ballot pamphlet.’ [Citation.]” [Citation.] In other

words, “our primary purpose is to ascertain and effectuate the intent of the voters who

passed the initiative measure.”’ [Citation.] Our review is de novo. [Citation.]” (In re

J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.)

       “A dictionary is a proper source to determine the usual and ordinary meaning of a

word or phrase in a statute.” (E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d

1254, 1258, fn. 2; see also Wasatch Property Management v. Degrate (2005) 35 Cal.4th

1111, 1121-1122 [“When attempting to ascertain the ordinary, usual meaning of a word,

courts appropriately refer to the dictionary definition of that word” (construing statutory

term)]; Scott v. Continental Ins. Co. (1996) 44 Cal.App.4th 24, 30, fn. omitted [“It is thus

safe to say that the ‘ordinary’ sense of a word is to be found in its dictionary

definition.”].)




                                              6
       In In re J.L., the minor argued that his conviction for felony burglary based on his

theft of a cell phone from a school locker should have been reduced to misdemeanor

shoplifting pursuant to section 1170.18. (In re J.L., supra, 242 Cal.App.4th at p. 1113.)

The court disagreed, holding that: “Whatever broader meaning ‘commercial

establishment’ as used in section 459.5 might bear on different facts, [the minor’s] theft

of a cell phone from a school locker room was not a theft from a commercial

establishment.” (Id. at p. 1114.) The court reasoned that: “Giving the term its

commonsense meaning, a commercial establishment is one that is primarily engaged in

commerce, that is, the buying and selling of goods or services. That commonsense

understanding accords with dictionary definitions and other legal sources. [Citations.]”

(Ibid.) “We believe the voters enacting Proposition 47 understood the reference to

‘shoplifting’ in the voter information guide materials, including in the title and text of

section 459.5, in the same way. Shoplifting is commonly understood as theft of

merchandise from a store or business that sells goods to the public. [Citations.]” (Id. at

pp. 1114-1115.)

       We agree with In re J.L. that the intent behind the enactment of the section 459.5

misdemeanor crime of shoplifting was to punish the purloining of goods from a retail

establishment. (Webster’s 3d New Internat. Dict. (2002) p. 456 [“commercial” means

“occupied with or engaged in commerce” and “commerce” means “the exchange or

buying and selling of commodities esp. on a large scale”]; The Oxford English Reference

Dict. (2d ed. 1996) p. 290 [defining “commerce” as “financial transactions, esp. the



                                              7
buying and selling of merchandise, on a large scale”]; Black’s Law Dict. (10th ed. 2014)

p. 325, col. 2 [“commercial” means “[o]f, relating to, or involving the buying and selling

of goods; mercantile”]; People v. Cochran (2002) 28 Cal.4th 396, 404-405 [citing the

dictionary definition of commerce as “‘[t]he buying and selling of goods, especially on a

large scale,’” in interpreting the statutory phrase “‘commercial purpose’”]; People v.

Contreras, supra, 237 Cal.App.4th at p. 872 [defendant convicted of shoplifting under

§ 459.5 for stealing seven pairs of jeans from a “retail store”]; People v. Gonzales (1965)

235 Cal.App.2d Supp. 887, 892 [describing shoplifting as “the practice whereby

customers enter a turnstile, have free access to all the shelves displaying wares and

merchandise, and the proper payment for merchandise taken away from the store depends

upon the customer properly declaring it at the check-out or cashier’s stand.”] .)

       Indeed, “shoplift” is a compound word that when deconstructed consists of the

words “shop” and “lift.” A “shop” is commonly interpreted as a retail establishment

involved in the sale of goods. To “lift” something is to steal it, either surreptitiously or

brazenly by taking the object and dashing outside the “shop.” (Black’s Law Dict., supra,

p. 1598, col. 1 [defining shoplifting as the “[t]heft of merchandise from a store or

business; specif., larceny of goods from a store or other commercial establishment by

willfully taking and concealing the merchandise with the intention of converting the

goods to one’s personal use without paying the purchase price.”].)




                                              8
      Here, the temporary employment agency was not a commercial establishment for

purposes of the shoplifting statue because it was not engaged in the buying and selling of

goods. The court properly denied defendant’s petition for resentencing.

                                   III. DISPOSITION

      The order is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                              McKINSTER
                                                                                         J.


I concur:

RAMIREZ
                       P. J.




                                            9
[People v. Ovieda, E063216]

       MILLER, J., Dissenting.

       I respectfully dissent. The trial court rejected defendant’s petition to recall

his sentence (Petition) based solely on its determination that a temporary

employment agency was not a commercial establishment. I disagree with the

majority’s determination upholding the trial court’s decision and conclude that a

temporary employment agency could properly be considered a commercial

establishment within the meaning of shoplifting, as that term is defined in

Proposition 47. I would remand to the trial court in order for the trial court to

review defendant’s plea and consider whether he should be resentenced to

misdemeanor shoplifting under Penal Code section 459.5.

       Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal

Code section 1170.18, provides in pertinent part, “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

(‘this act’) 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.” Under Penal Code section 1170.18, subdivision (b), the trial court first

determines whether the petition has presented a prima facie case for relief under


                                           1
Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria

in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,

within its discretion, determines the petitioner would pose an unreasonable risk to

public safety. (Pen. Code, § 1170.18, subd. (b).)

       Section 459.5 was added to the Penal Code by Proposition 47 and provides,

“[n]otwithstanding [Penal Code s]ection 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).”

“Commercial establishment” was not defined.

       Because the term “commercial establishment” was not defined in the ballot

initiative and is not defined in the Penal Code, we begin with the words

themselves, giving them their ordinary meaning. “A dictionary is a proper source

to determine the usual and ordinary meaning of a word or phrase in a statute.”

(E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn.2; see

also Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-

1122 [“When attempting to ascertain the ordinary, usual meaning of a word, courts

appropriately refer to the dictionary definition of that word”]; Scott v. Continental

Ins. Co. (1996) 44 Cal.App.4th 24, 30, fn. omitted [“It is thus safe to say that the

‘ordinary’ sense of a word is to be found in its dictionary definition”].)

       The Merriam-Webster Online Dictionary (2016) provides a simple

definition for commerce as follows: “activities that relate to the buying and


                                          2
selling of goods and services.” (<http://www.merriam-

webster.com/dictionary/commerce> [as of Apr. 27, 2016].) The full definition

includes, “the exchange or buying and selling of commodities on a large scale

involving transportation from place to place.” (Ibid.) “Commodity” is simply

defined as, “something that is bought and sold” or “something or someone that is

useful or valued.” (<http://www.merriam-webster.com/dictionary/commodities>

[as of Apr. 27, 2016].)

       Black’s Law Dictionary defines establishment as, “2. An institution or

place of business.” (Black’s Law Dict. (8th ed. 2004) p. 586, col. 1.) Commerce

is defined as, “The exchange of goods and services, esp. large scale involving

transportation between cities, states, and nations.” (Id. at p. 285, col. 2.)

       In 37 Code of Federal Regulations part 258.2 (2014), pertaining to

copyright law, commercial establishment is defined as “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[.]”

       In In re J.L. (2015) 242 Cal.App.4th 1108, 1114, the court found that

stealing a cellular telephone from a school locker did not qualify for resentencing

under Proposition 47. It determined that, “[w]hatever broader meaning

‘commercial establishment’ as used in [Penal Code] section 459.5 might bear on

different facts, [the defendant]’s theft of a cell phone from a school locker room

was not a theft from a commercial establishment.” Thereafter, the court defined


                                           3
commercial establishment as follows: “Giving the term its commonsense

meaning, a commercial establishment is one that is primarily engaged in

commerce, that is, the buying and selling of goods or services.” (Ibid, italics

added.)

       I conclude that commercial establishment is reasonably interpreted to

include those businesses engaged in the buying and selling of services. A

temporary employment agency is engaged in the buying and selling of services. I

note that in their respondent’s brief, the People made no argument to the contrary,

essentially conceding that a temporary employment agency is a commercial

establishment.

       I disagree with the majority’s conclusion that a commercial establishment

must be engaged in the buying and selling of goods. The majority relies upon the

common understanding of the term “shop” and “lift.” However, the voters

approved Proposition 47, which provides a definition of shoplifting that is

different from the ordinary meaning. The term “commercial establishment” is

reasonably interpreted to include the buying and selling of goods and services. As

such, the trial court erred by determining that the temporary employment agency

was not a commercial establishment.

       The majority does not address the People’s further argument that defendant

entered the employment agency with two intents: to commit a felony (identity

theft) and theft. The People insist that defendant’s entry with the intent to commit

identify theft constitutes a felony even after the enactment of Proposition 47.


                                          4
Defendant has responded that when he entered his plea in open court, he pleaded

guilty to second degree burglary based on his entry with the intent to commit theft

or a felony. The nature of a plea is a factual question that must first be decided by

the trial court. (People v. Contreras (2015) 237 Cal.App.4th 868, 892 [“The trial

court’s decision on a [Penal Code] section 1170.18 petition is inherently factual,

requiring the trial court to determine whether the defendant meets the statutory

criteria for relief”].)

       The trial court did not address whether defendant entered the employment

agency with the intent to commit larceny.

       I would remand this matter in order for the trial court to review the plea and

record of conviction to determine if defendant is eligible for resentencing under

Proposition 47.


                                                 MILLER
                                                                                     J.




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