Filed 10/23/15 P. v. Sanchez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B262456

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BA428620)
         v.

JAIME SANCHEZ,

         Defendant and Respondent.




         APPEAL from an order of the Superior Court of Los Angeles County. Dorothy B.
Reyes, Judge. Reversed and remanded.


         Jackie Lacey, Los Angeles County District Attorney, Steven Katz, Head Deputy
District Attorney, and Matthew Brown, Deputy District Attorney, for Appellant.


         Ronald L. Brown, Los Angeles County Public Defender, Albert J. Menaster and
Mark Harvis, Deputy Public Defenders, for Respondent.


                                    ___________________________________
       After being charged with first degree burglary, Jaime Sanchez entered into a plea
agreement pursuant to which he pled no contest to one count of second degree burglary
and admitted a prior serious felony for strike and prior prison term enhancement
purposes. In exchange, he was sentenced to a negotiated 44-month prison term.
       Two months later, voters passed Proposition 47 (Prop. 47 or the Act), which
reduced certain theft and drug possession offenses from felonies to misdemeanors.
Among other things, Prop. 47 added section 459.5 to the Penal Code.1 Under this
section, certain offenses previously punishable as felony burglaries are now punishable as
misdemeanor “shoplifting.” The new statute defines “shoplifting” 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).” (§ 459.5, subd. (a), italics
added.)
       Pursuant to section 1170.18—another statute added to the Penal Code by Prop.
47—Sanchez petitioned the trial court to have his sentence recalled and to be resentenced
as a misdemeanor offender. Over the People’s objection, the trial court granted the
petition and sentenced Sanchez to two years’ summary probation.
       The People have appealed, claiming (1) Sanchez did not qualify for Prop. 47
resentencing because he broke into the laundry room of an apartment complex, which is
not a “commercial establishment,” and (2) even assuming that the new shoplifting statute
could apply to the facts of this case, the proper remedy would be to vacate the plea and
reinstate the original charges.
       We agree with the People’s first contention and reverse the trial court’s order with
directions. In light of this holding, we do not consider the People’s second contention.




1      Undesignated statutory references are to the Penal Code.

                                             2
                 FACTUAL AND PROCEDURAL BACKGROUND

1.     The Felony Complaint and Plea

       The relevant facts are undisputed. In August 2014, the People filed a felony
complaint, charging Jaime Sanchez with one count of first-degree residential burglary
(§ 459). The complaint did not allege any specific facts regarding the nature of the
offense, except to state that Sanchez “did enter an inhabited dwelling house and trailer
coach and inhabited portion of a building . . . .” The complaint also alleged—for strike
and prior prison term enhancement purposes—that Sanchez had suffered a first degree
burglary conviction in 2012.
       In September 2014, Sanchez entered into a plea agreement pursuant to which
(1) the People amended the complaint to add one count of second degree burglary
(§ 459), (2) Sanchez pled no contest to the newly-added second degree burglary count
and admitted the prior first degree burglary conviction for various enhancement purposes,
(3) the court dismissed the first degree burglary count, and (4) the court sentenced
Sanchez to a negotiated 44-month prison term, comprised of the low term of 16 months,
doubled because of the prior serious felony conviction (§ 667, subd. (e)(1)), plus an
additional one year because of the prior prison term (§ 667.5, subd. (b)). The parties
stipulated to a factual basis for the plea and admission “based on the arrest reports and
complaint.”

2.     The Passage of Proposition 47

       In November 2014, voters enacted Prop. 47, the Safe Neighborhoods and Schools
Act, which reduced certain theft and drug possession offenses from felonies to
misdemeanors. Among other things, Prop. 47 added section 459.5 to the Penal Code.
That section provides that certain burglary offenses are “shoplifting” and that shoplifting
is to be punished as a misdemeanor. The new statute defines “shoplifting” as “entering a
commercial establishment with intent to commit larceny while that establishment is open



                                             3
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).)
       Under Prop. 47, a person serving a felony sentence for an offense that was reduced
to a misdemeanor under the Act may petition the sentencing court to have the sentence
recalled and to be resentenced under the new misdemeanor provisions of the Act.2
(§ 1170.18, subd. (a).)

3.     Sanchez Petitions for Resentencing Under Prop. 47

       In December 2014, Sanchez petitioned the trial court for resentencing under Prop.
47. On the one-page form containing the petition, Sanchez checked the box indicating
that he had been convicted of “Penal Code [section] 459 2nd Degree Burglary
(Shoplifting).” Sanchez made no attempt to show that the offense of which he was
convicted qualified as shoplifting under the definition contained in newly-enacted section
459.5. He did not provide any supporting documentation and did not cite to the record or
other evidence.

4.     The Trial Court Hears and Grants the Petition

       In February 2015, the trial court conducted a brief hearing on the petition. The
court first asked the prosecutor whether he wished to be heard. The prosecutor stated that
the People objected to resentencing, noting that Sanchez was initially charged with first
degree burglary and that “it is not a . . . commercial burglary. It happened in a
laundromat connected to the apartment complex. . . . He is not eligible.”3 Sanchez’s
counsel submitted without offering any argument.



2      The applicable statute refers to a petition to recall the sentence and for
resentencing. (§ 1170.18, subd. (a).) For simplicity, we will refer to it as a petition for
resentencing.

3     As discussed below, the only document in the record describing the facts of the
underlying crime in any meaningful detail refers to a “laundry room,” not a laundromat.

                                              4
       The parties then engaged in a brief discussion regarding whether a first degree
burglary conviction could be reduced to a misdemeanor under Prop 47. The prosecutor
maintained that “only a commercial second degree burglary . . . is reduceable depending
on the amount that was stolen.” When the court asked for the amount stolen in the case,
Sanchez’s counsel responded: “I don’t think anything was taken, Your Honor, based on
my reading of the arrest report and the probation report. He was observed by the
manager through closed-circuit television, the officers were called and he was then
arrested and detained.” This was the first reference at the hearing to either the probation
report or the arrest report.4
       The court then stated: “In looking at the probation report, pre plea report, it
doesn’t appear to be any financial loss.” The court did not purport to address the other
factual elements in section 459.5’s definition of shoplifting, namely, that the person in
question “enter[ed] a commercial establishment . . . while that establishment is open
during regular business hours.” (§ 459.5, subd. (a).)
       The prosecutor also objected to the resentencing on the ground that doing so
would violate the terms of the plea agreement. He argued that if Sanchez was entitled to
any relief, it would be to set aside his plea.



For this reason, and because a laundromat is often understood as a commercial
establishment open to the public, we will use the term laundry room.

4      The probation report is the only document in the record that contains any
meaningful description of the facts of the crime. According to the report, Sanchez,
“armed with burglary tools [and accompanied by his girlfriend who stood watch], entered
private property and bypassed the locking security door, entering the laundry room of an
apartment complex.” The apartment complex manager observed Sanchez through a live
surveillance camera and called police, who arrived in time to witness Sanchez via the
same live camera feed. The officers detained Sanchez and his girlfriend before they left
the laundry room. Officers observed fresh pry marks on laundry equipment and
recovered unspecified evidence. Sanchez allegedly told officers he was homeless and
was breaking in to the coin operated machines for money. The apartment complex
manager stated that Sanchez had “entered without permission” and there was no financial
loss.

                                                 5
       After confirming that Sanchez pled to second degree burglary, the court “grant[ed]
the motion to reduce” the conviction to a misdemeanor, and it proceeded to sentence
Sanchez to two years of summary probation, while ordering Sanchez to serve 332 days in
county jail. Because Sanchez had served 332 days (after considering good time/work
time credits), the court stated “it’s a time-served sentence.”

5.     The People’s Appeal

       The People filed a timely notice of appeal. In their opening brief, they claim (1)
Sanchez did not qualify for Prop. 47 resentencing because his offense did not involve
entry into a “commercial establishment” during regular business hours, and (2) even if
the new shoplifting statute could apply to the facts of this case, the proper remedy would
be to vacate the plea and reinstate the original charges, not to reduce the conviction to a
misdemeanor.
       In his respondent’s brief, Sanchez argues (1) the facts of the underlying crime
were not properly before the trial court because they were based on a hearsay probation
report; as a result, there is no basis to determine that Sanchez did not meet the eligibility
requirements for resentencing, (2) even if the probation report can be considered, a
“ ‘commercial establishment’ is a broad term that can include a laundromat,” and (3) the
trial court’s remedy of reduction to a misdemeanor was proper.

                                       DISCUSSION

A.     Appealability

       The trial court’s order is appealable as “[a]n order made after judgment, affecting
the substantial rights of the people” (§ 1238, subd. (a)(5)) and as “[a]n order modifying
the verdict or finding by reducing the degree of the offense or the punishment imposed or
modifying the offense to a lesser offense” (§ 1238, subd. (a)(6)). (See also People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1294-1295 (Kaulick) [order




                                              6
recalling sentence and resentencing inmate under Proposition 36 (the Three Strikes
Reform Act of 2012) is appealable under section 1238.5, subdivisions (a)(5) and (a)(6)].)
       Although the trial court reduced Sanchez’s conviction to a misdemeanor, the
appeal is properly to this court and not to the appellate division of the superior court.
(People v. Rivera (2015) 233 Cal.App.4th 1085; People v. Lynall (2015) 233 Cal.App.4th
1102, 1111.)

B.     The Trial Court Erred in Granting Relief

       1.      Relevant Provisions of Prop. 47

       Voters enacted Prop. 47 on November 4, 2014. Pursuant to the state constitution,
Prop. 47 went into effect the following day. (Cal. Const., art. II, § 10, subd. (a).)
       Under Prop. 47, certain drug and theft-related offenses that had previously been
designated as felonies or “wobblers” (crimes that can be punished as either felonies or
misdemeanors) were reduced to misdemeanors. (People v. Rivera, supra, 233
Cal.App.4th at p. 1091.) Prop. 47 did so by adding new, or amending existing, statutory
provisions. (See ibid.)
       One of the statutory provisions added by Prop. 47 is section 459.5, which
provides:
               “(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, except that a person with one or more prior convictions for
       an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
       subdivision (e) of Section 667 or for an offense requiring registration
       pursuant to subdivision (c) of Section 290 may be punished pursuant to
       subdivision (h) of Section 1170.
               “(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.”



                                              7
       As is evident from the statutory language, not all burglaries were reduced to
misdemeanors. The only burglaries reduced were those (1) involving entry into a
“commercial establishment,” (2) during regular business hours, and (3) where the value
of the property in question does not exceed $950.
       Prop. 47 also added section 1170.18, which contains two procedural mechanisms
for the benefit of those previously convicted of felonies that were reduced to
misdemeanors by virtue of the Act. The two mechanisms differ, depending on whether
the potential beneficiary has completed serving his or her sentence.
       Subdivision (a) of the statute applies to persons still serving their sentences and
was the applicable provision in this case. It 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 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.” (§ 1170.18, subd. (a).)
       If the petitioning inmate meets the statutory eligibility requirements, the trial court
must resentence the inmate in accordance with Prop. 47 “unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.” (§ 1170.18, subd. (b).) Section 1170.18 defines “unreasonable
risk of danger to public safety” (§ 1170.18, subd. (c)) and lists various factors that a court
may consider in determining whether the inmate poses such a risk (§ 1170.18, subd. (b)).5

       2.     The Burden to Establish Eligibility for Resentencing

       As discussed above, section 1170.18, subdivision (a), provides that “[a] person
currently serving a sentence for a conviction . . . of a felony or felonies who would have

5     Persons with certain prior offenses may not obtain relief under section 1170.18. (§
1170.18, subd. (i).) This provision is not at issue here.

                                              8
been guilty of a misdemeanor under the 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 . . . .” Subdivision (b)
goes on to state that, “[u]pon receiving a petition under subdivision (a), the court shall
determine whether the petitioner satisfies the criteria in subdivision (a).” (§ 1170.18,
subd. (b).)
       Prop. 47 does not state who bears the initial burden to establish eligibility for
resentencing under section 1170.18, subdivision (a). The issue was squarely addressed in
People v. Sherow (2015) 239 Cal.App.4th 875, in which the court held that the petitioner
has the initial burden of establishing eligibility for resentencing under Prop. 47. In that
case, an inmate convicted on numerous counts of second degree burglary petitioned for
resentencing under Prop. 47 with respect to five of the counts. His petition contained “no
reference to facts or evidence.” (Id. at p. 877.) The People opposed the petition,
claiming the loss exceeded the $950 threshold. (Ibid.) The trial court denied the petition.
       The inmate appealed, challenging the denial of the petition with respect to two
counts. He argued that “the record does not show the loss as to each count exceeded
$950 and thus the two counts should be resentenced as misdemeanors.” (Ibid.) The
Court of Appeal rejected his contention, holding that the inmate “had the burden to show
the property loss in each of those counts did not exceed $950 and thus fell within the new
statutory definition of shoplifting.” (Ibid.) Among other things, the court quoted the
following from the published work of Judge J. Richard Couzens and Presiding Justice
Tricia A. Bigelow devoted to Prop. 47:
              “ ‘The petitioner will have the initial burden of establishing eligibility
       for resentencing under section 1170.18(a): i.e., whether the petitioner is
       currently serving a felony sentence for a crime that would have been a
       misdemeanor had Proposition 47 been in effect at the time the crime was
       committed. If the crime under consideration is a theft offense under sections
       459.5, 473, 476a, 490.2, or 496, the petitioner will have the additional burden
       of proving the value of the property did not exceed $950.’ ” (Id. at p. 879,
       quoting Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and
       Schools Act” (Feb. 2015) p. 40 <http://www.courts.ca.gov/documents/Prop-
       47-Information.pdf> [as of Oct. 21, 2015].)

                                              9
       We agree with the holding in Sherow. Indeed, it is consistent with the well-
established rule contained in Evidence Code section 500, which provides: “Except as
otherwise provided by law, a party has the burden of proof as to each fact the existence or
nonexistence of which is essential to the claim for relief or defense that he is asserting.”
(See also People v. Barasa (2002) 103 Cal.App.4th 287, 295-296 [under Evidence Code
section 500, defendant has the burden of proving that his drug possession or
transportation was for personal use and that he was therefore eligible for sentence
reduction under Proposition 36]; People v. Atwood (2003) 110 Cal.App.4th 805, 812
[Under Evidence Code section 500, “[t]he burdens of producing evidence and of
persuasion flow from a party’s status as a claimant seeking relief”].) Sanchez was the
party petitioning for relief. As such, he had the initial burden of demonstrating eligibility
under section 1170.18, subdivision (a).6
       In his respondent’s brief, Sanchez seems to accept that he had the initial burden,
though he claims he met that burden by filing his petition to recall his sentence on a form
approved by the Los Angeles County Superior Court.7 Thus, he states: “The defendant
initially met his burden by filing the Superior Court’s Proposition 47 Petition.”
Similarly, he asserts that “[h]e did everything that the [court-approved] form requested of
him and therefore made the necessary prima facie showing of eligibility.”




6      In contrast, if the petitioning inmate establishes that he is eligible for resentencing
under section 1170.18, subdivision (a) (i.e., that the crime of which he was convicted was
reduced to a misdemeanor by the Act), the prosecution has the burden of establishing, by
a preponderance of the evidence, that resentencing the petitioner would pose an
unreasonable risk of danger to public safety. (Kaulick, supra, 215 Cal.App.4th at
pp. 1301-1305.)

7      Sanchez submitted his petition to the trial court using “CRIM 235,” a form
approved by the Los Angeles County Superior Court. A revised version of that form can
be found on the court’s website. (<http://www.lacourt.org/forms/pdf/CRIM235.pdf> [as
of Oct. 21, 2015].)

                                             10
       We reject Sanchez’s unsupported suggestion that use of a court-approved form, in
and of itself and without supporting evidence, satisfies his burden of proof. As discussed
above, as the party seeking relief, Sanchez had the burden of establishing “each fact the
existence or nonexistence of which is essential to the claim for relief . . . that he is
asserting.” (Evid. Code, § 500, italics added.) Completing a form does not establish the
requisite facts.
       Sanchez maintains the People waived the right to challenge the sufficiency of his
initial showing because they allegedly failed to “object” in the trial court and in their
opening brief. Sanchez’s contention is legally and factually unsupported. Legally, the
People were not required to “object” to the sufficiency of the showing. At most, they
were required to argue that the showing was insufficient. Moreover, as a factual matter,
the prosecutor specifically stated that the “People will object” to resentencing because “it
is not a . . . commercial burglary. It happened in a laundromat connected to the
apartment complex. . . . He is not eligible.” The People take the same position in their
opening brief. There was no waiver of the right to challenge the adequacy of the
showing.
       Finally, as we discuss below, irrespective of which side had the burden of proof,
the evidence that was before the trial court cannot support the trial court’s ruling.

       3.      The Propriety of Relying on the Probation Report to Establish Initial
               Eligibility for Resentencing

       In arguing that the trial court erred in resentencing Sanchez, the People rely on the
commission of the crime as described in the probation report which, as noted above, is
the only document in the record containing any meaningful description of the facts and
was the only document relied upon by the parties and the trial court at the hearing on
Sanchez’s Prop. 47 petition.
       Sanchez maintains “the ‘facts’ underlying defendant’s conviction were not
properly before the court because they were based upon a hearsay probation report . . . .”
Therefore, he claims, “no legally admissible evidence regarding the nature


                                              11
of the prior conviction was ever presented to the trial court.”
       We reject defendant’s arguments for several reasons. First, Sanchez forfeited any
claim of error because he did not object to the trial court’s consideration of the probation
report on hearsay, or on any other grounds. (See People v. Brimmer (2014) 230
Cal.App.4th 782, 799-800 [“Defendant argues that the People failed to present proper
evidence regarding his section 1170.126 petition [for resentencing], claiming the trial
court is limited to the ‘record of conviction’ and that the police reports, probation report,
and transcripts of the 911 call and witness statements submitted by the People are not
proper sources of information regarding the factual circumstances of the crime.
Defendant, however, did not object to the documents submitted by the People or
challenge them. As such, defendant has forfeited this claim”].)
       Second, any error was invited. Not only did Sanchez’s counsel fail to object, she
was the one who first cited and relied upon the probation report in an effort to show her
client was eligible for resentencing because the amount taken was less than $950. (See
People v. Harrison (2005) 35 Cal.4th 208, 237 [if there was error in admitting hearsay
statements, defense invited the error].) As the People note in their reply brief, Sanchez
wants to “benefit from the trial court’s consideration of the facts when they benefited
him, but prevent review of those same facts when they do not.” Sanchez cannot have it
both ways. He invited the trial court to consider the probation report. He cannot now
complain about its use.
       Finally, Sanchez’s argument proves too much. As Sanchez himself acknowledges,
without the probation report, the facts of the underlying crime were not before the trial
court. If so, Sanchez failed to meet his burden of establishing eligibility for resentencing
under section 1170.18, subdivision (a); i.e., he failed to establish that the crime of which
he was convicted was reduced to a misdemeanor by Prop. 47. (See Evid. Code, § 550,
subd. (b) [“The burden of producing evidence as to a particular fact is initially on the
party with the burden of proof as to that fact”].) Without the probation report, there is no
evidence that can support the trial court’s order.



                                             12
       As we now explain, the facts contained in the probation report—the only evidence
upon which the trial court relied—cannot support the trial court’s decision that Sanchez
was eligible for resentencing.

       4.        No Evidence Supports the Trial Court’s Resentencing Order

       As discussed above, “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).” (§ 459.5, subd. (a), italics
added.)
       The probation report reflects that Sanchez bypassed a locking security door and
entered a laundry room on private property (an apartment complex). He did so without
permission and was apprehended, apparently while breaking into the coin operated
laundry machines for money. These acts do not meet the statute’s definition of
“shoplifting.”
       First, Sanchez concedes that the probation report contains no evidence regarding
the “business hours” of the laundry room. In and of itself, this is enough to require
reversal of the trial court’s order. We note, however, that the probation report states the
offense occurred on August 22, 2014 (a Friday), at 3:20 in the afternoon. If the laundry
room in question was a “commercial establishment,” perhaps an argument could be made
that the offense occurred “during regular business hours” as required under section 459.5,
subdivision (a). We need not decide this question however because (1) it was not raised
by Sanchez, and (2) the apartment complex’s laundry room was not a “commercial
establishment.”
       Neither Prop. 47, nor the Penal Code, defines the term “commercial
establishment.” We therefore must follow the ordinary rules of construction.
       “When we interpret an initiative, we apply the same principles governing statutory
construction.” (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571
(Pearson); accord Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212.)

                                             13
Therefore, “[w]e first consider the initiative’s language, giving the words their ordinary
meaning and construing this language in the context of the statute and initiative as a
whole. If the language is not ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute or rewrite it to conform to
some assumed intent not apparent from that language. If the language is ambiguous,
courts may consider ballot summaries and arguments in determining the voters’ intent
and understanding of a ballot measure.” (Pearson at p. 571; see also People v. Woodhead
(1987) 43 Cal.3d 1002, 1007-1008.)
       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” (construing statutory term)]; Scott v. Continental Ins. Co. (1996)
44 Cal.App.4th 24, 30 [“It is thus safe to say that the ‘ordinary’ sense of a word is to be
found in its dictionary definition.”].)
       As relevant here, Black’s Law Dictionary defines “establishment” as “[a]n
institution or place of business.” (Black’s Law Dict. (10th ed. 2014) p. 664, col. 1.) It
defines “commercial” as “[o]f, relating to, or involving the buying and selling of goods;
mercantile.” (Black’s Law Dict., supra, at p. 325, col. 2.) Similarly, the American
Heritage Dictionary defines “commercial” as “[o]f or relating to commerce” or
“[e]ngaged in commerce,” and it defines “commerce” as “[t]he buying and selling of
goods, especially on a large scale, as between cities or nations.” (American Heritage
Dict. (4th ed. 2000) p. 371.)
       Thus, these dictionary definitions reflect that a “commercial establishment” is a
place of business where goods are commonly sold. This construction is consistent with
the common understanding of “shoplifting,” which Black’s Law Dictionary defines as

                                             14
“[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.” (Black’s Law Dict., supra, at p. 1590, col. 1.)
       In sum, the term commercial establishment is generally understood to mean a
business or store that sells goods or merchandise. Such a place of business, at least
during regular business hours, is generally open to the public and permission is not
ordinarily required to gain entry. A laundry room of an apartment complex is not open to
the general public and does not reasonably fit within the definition of “commercial
establishment.” Sanchez did not engage in what is ordinarily understood to be
“shoplifting”—theft of goods from a store.
       Our conclusion finds support in the Court of Appeal’s decision in People v. Woods
(1998) 65 Cal.App.4th 345, 347 (Woods). The facts in Woods are remarkably similar to
those of the instant case. In Woods, “police officers responded to a report of a burglary in
progress at an apartment complex. The officers found defendant Woods and a female
companion inside a laundry facility within the complex. One of the washing machines
had been pulled from the wall and its coin box had been broken. Fresh pry marks were
visible on the door to the laundry room. The apartment manager told police he had
locked the laundry room an hour before and at that time nothing in the room had been
disturbed. The manager further reported that neither Woods nor his companion lived in
the complex.” (Id. at p. 347.)
       One of the issues in Woods was whether the evidence supported defendant’s first
degree burglary conviction. Defendant Woods argued that the laundry room of the
apartment complex was not an “inhabited dwelling house,” and that he therefore should
not have been convicted of first degree burglary. (See § 460, subd. (a) [“Every burglary
of an inhabited dwelling house . . . is burglary of the first degree”].) The Court of Appeal
rejected his argument. (Woods, supra, 65 Cal.App.4th at pp. 347-350.)
       The court observed that “Woods fails to cite any authority for his contention that
the laundry room must be an integral part of an individual apartment unit as opposed to

                                             15
an integral part of the complex in order to constitute an inhabited dwelling. . . . [T]he
relationship of the laundry room to the complex itself is the proper focus of inquiry.
Based on the evidence of the physical placement of the laundry room within the complex
and the fact it was used by tenants to do their laundry, a household chore, we find no
error in the court’s implied finding this room was an integral part of the complex, and
thus an inhabited dwelling.” (Id. at p. 349.)
       The court also rejected defendant’s suggestion that the laundry room failed the
“ ‘reasonable expectation test’ for an inhabited dwelling.” (Woods, supra,
65 Cal.App.4th at p. 349.) The court acknowledged that a tenant might expect to
encounter “strangers” in the laundry room, but observed that “the ‘strangers’ a tenant
would expect to meet in the laundry room were fellow tenants doing laundry, not
burglars.” (Ibid.) The court concluded that the evidence was sufficient “to support a
finding, under the reasonable expectation test, that the laundry room is an area where
tenants would expect protection from unauthorized intrusions, and thus it qualifies as an
inhabited dwelling.” (Id. at pp. 349-350.)
       We agree with Wood’s analysis. On the record before us, Sanchez did not break
into a commercial establishment. He broke into a laundry room that was an integral part
of a residential complex. That the prosecutor was agreeable to a second degree burglary
disposition does not mean defendant was entitled to resentencing under Prop. 47. He was
not.

                                      DISPOSITION

       The trial court’s February 2, 2015 order granting defendant’s petition for
resentencing is reversed, and the matter is remanded to the trial court with directions to
enter a new order denying defendant’s petition for resentencing.


                                                         RUBIN, Acting P. J.
WE CONCUR:
                            FLIER, J.                                          GRIMES, J.

                                                16
