Filed 9/29/16
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION ONE


THE PEOPLE,                                      B266185

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. NA088944)
        v.

NICHOLAS HALLAM,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County.
Laura Laesecke, Judge. Reversed.
        Janet Uson, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
                            _________________________________
       In this appeal we consider whether the entry during business hours into a
commercial establishment’s employee rest room to commit larceny qualifies as
“shoplifting” under Penal Code1 section 459.5 as enacted by the voters in Proposition 47.
We conclude that it does.
       Nicholas Hallam appeals an order denying his petition for resentencing/application
to redesignate his felony conviction for second degree burglary as misdemeanor
shoplifting pursuant to Proposition 47, the Safe Neighborhoods and Schools Act
(Proposition 47 or the Act). (§§ 1170.18, subds. (a)–(e), (f)–(i), 459.5.) The trial court
reasoned that because appellant entered a store through the back entrance and committed
the theft in an “employee area” of the store, the offense did not meet the definition of
“shoplifting” under section 459.5, and his felony conviction thus did not qualify for
resentencing or redesignation as a misdemeanor under section 1170.18, subdivisions (a)–
(e) or (f)–(i).2 Appellant contends the trial court erred in denying his application because
his crime satisfied the elements of shoplifting under section 459.5 and the factors cited by
the court did not disqualify him from relief under section 1170.18, subdivisions (b) or (i).
We agree and reverse.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In May 2011, appellant entered a Computers NLA store during business hours and
used the employee rest room with the store’s permission. When he left the store he
proceeded to the back of the building. There he climbed over a fence and reentered the




       1   Undesignated statutory references are to the Penal Code.
       2 Appellant’s application/petition for resentencing indicated he had completed his
sentence but was still on probation or parole. He requested that his felony sentence be
recalled and that he be resentenced to a misdemeanor sentence pursuant to section
1170.18, subdivisions (a)–(e). He also sought relief pursuant to section 1170.18,
subdivisions (f)–(i), requesting that the felony conviction be designated a misdemeanor
conviction. The trial court treated appellant’s request as an application to designate a
felony conviction as a misdemeanor conviction.



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store through the back door. He returned to the rest room and took an air compressor
valued at $350.
       On May 24, 2011, appellant entered a plea of no contest to one count of second
degree burglary. The court sentenced him to two years in state prison.
       On April 21, 2015, appellant filed a petition for resentencing/application for
redesignation of a conviction pursuant to section 1170.18, subdivisions (a)–(e) and (f)–
(i), seeking to designate his felony burglary conviction as a misdemeanor shoplifting
conviction. The district attorney opposed the application on the grounds that the
employee rest room was not an area to which the public generally had access, and
appellant intended to steal an item that belonged to the store but was not store
merchandise.
       The trial court concluded Proposition 47 would not apply to reduce appellant’s
felony conviction to a misdemeanor, reasoning that, to qualify as shoplifting, the statute
“anticipates” entry into an area of a commercial establishment to which the public has
access and where merchandise is sold. Because appellant did not enter the store through
the front door and he took an item from the employee area, the court ruled that
appellant’s offense did not meet the criteria for shoplifting under section 459.5.
                                      DISCUSSION
       California voters approved Proposition 47 on November 4, 2014. The stated intent
of the initiative 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.” (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; People v. Stylz (2016) 2 Cal.App.5th
530, 533; People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)
       To fulfill its purpose of “requir[ing] misdemeanors instead of felonies for
nonserious, nonviolent crimes like petty theft and drug possession” (Voter Information
Guide, Gen. Elec., supra, § 3, p. 70), Proposition 47 added section 459.5 to the Penal
Code, creating “a new crime of ‘shoplifting,’ a misdemeanor offense that punishes certain


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conduct that previously would have qualified as a burglary” 3 (In re J.L. (2015) 242
Cal.App.4th 1108, 1112 (J.L.)). Section 459.5, subdivision (a) 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).”
       “Proposition 47 allows a person . . . who is currently serving a felony sentence for
an offense that is now a misdemeanor . . . to petition for recall of sentence and
resentencing in accordance with its provisions.” (People v. Hoffman (2015) 241
Cal.App.4th 1304, 1308–1309; § 1170.18, subd. (a).) Hoffman noted that if the petitioner
meets the statutory criteria, the trial court has no discretion to deny the petition, unless
the court determines that resentencing “ ‘would pose an unreasonable risk of danger to
public safety.’ ” (Hoffman, supra, at p. 1309; § 1170.18, subd. (b).) The initiative also
includes a procedure whereby a person who has completed the sentence on a felony
conviction for an offense that is now a misdemeanor under the Act may file an
application in the trial court to have the felony conviction designated as a misdemeanor.
(§ 1170.18, subd. (f); People v. Tidwell (2016) 246 Cal.App.4th 212, 218.) Unlike the
petition for recall and resentencing, the trial court undertakes no assessment of any risk to
public safety in ruling on an application for designation of a felony as a misdemeanor
under Proposition 47: If the application satisfies the statutory criteria in subdivision (f),
the court shall designate the felony offense as a misdemeanor. (§ 1170.18, subd. (g).)
Thus, the court has no discretion to deny the application of a person who has completed
his felony sentence and “who would have been guilty of a misdemeanor under this act
had this act been in effect at the time of the offense.” (§ 1170.18, subd. (f).)



       3 While shoplifting is generally to be treated as a misdemeanor, a person who has
a prior “super-strike” conviction (§ 667, subd. (e)(2)(C)(iv)) or is required to register as a
sex offender (§ 290, subd. (c)) is excluded from the misdemeanor designation for the
crime under section 459.5, and “may be punished pursuant to subdivision (h) of section
1170.” (§ 459.5, subd. (a).)



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       Appellant contends that because he satisfies the statutory criteria for reclassifying
his burglary conviction as shoplifting under the plain language of section 459.5, the trial
court erred in denying his application. We agree.
       Our interpretation of Proposition 47 “is governed by the same rules that apply in
construing a statute enacted by the Legislature.” (People v. Park (2013) 56 Cal.4th 782,
796; People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) “ ‘The
fundamental purpose of statutory construction is to ascertain the intent of the lawmakers
so as to effectuate the purpose of the law.’ ” (Horwich v. Superior Court (1999) 21
Cal.4th 272, 276.) “We begin with the language of the statute, to which we give its
ordinary meaning and construe in the context of the statutory scheme.” (People v.
Johnson (2015) 61 Cal.4th 674, 682.) “A statute ‘ “must be given a reasonable and
common sense interpretation consistent with the apparent purpose and intention of the
lawmakers, practical rather than technical in nature, which upon application will result in
wise policy rather than mischief or absurdity.” ’ ” (People v. Zambia (2011) 51 Cal.4th
965, 972.) “Once the electorate’s intent has been ascertained, the provisions must be
construed to conform to that intent. [Citation.] ‘[W]e may not properly interpret the
measure in a way that the electorate did not contemplate: the voters should get what they
enacted, not more and not less.’ ” (People v. Park, supra, 56 Cal.4th at p. 796.)
       “The crime of shoplifting has three elements: (1) entry into a commercial
establishment, (2) while the establishment is open during regular business hours, and
(3) with intent to commit larceny of property valued at $950 or less.” (J.L., supra, 242
Cal.App.4th at p. 1114; § 459.5, subd. (a).) “Any other entry into a commercial
establishment with intent to commit larceny is burglary.” (§ 459.5, subd. (a).)
       The parties do not dispute that the Computers NLA store is a “commercial
establishment,” or that appellant intended to and did commit larceny of property valued at
less than $950. The Attorney General, however, contends that appellant “failed to satisfy
his initial burden to show that the store he entered was ‘open during regular business
hours’ within the meaning of the shoplifting statute.” We disagree.



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       When appellant pleaded no contest to the charge of second degree burglary, the
parties stipulated to a factual basis as set forth in the police reports.4 At the hearing on
the application for redesignation of the felony, defense counsel stated specifically during
his summary of the arrest reports that the store “was open during business hours.” In
addition, the probation report before the court when appellant entered his plea states that
appellant was detained and arrested on the scene on May 13, 2011, at 11:40 a.m.
       In ruling on the application, the trial court accepted the representation that the
crime occurred during regular business hours, expressly acknowledging that the front of
the store through which appellant initially walked to reach the rest room was open for
business. Moreover, the prosecutor failed to dispute the defense representation that the
theft occurred during regular business hours, agreeing with the trial court’s statement that
the store was a commercial establishment that was open for business, while the employee
rest room was not.
       “The trial court’s decision on a section 1170.18 petition is inherently factual,
requiring the trial court to determine whether the defendant meets the statutory criteria
for relief” (People v. Contreras (2015) 237 Cal.App.4th 868, 892), and we review the
trial court’s factual findings for substantial evidence (People v. Trinh (2014) 59 Cal.4th
216, 236; People v. Perkins (2016) 244 Cal.App.4th 129, 136). Here, the trial court’s
characterization of the Computers NLA store as a commercial establishment that was
open for business when appellant entered is not reasonably open to question. We
therefore reject the Attorney General’s assertion that appellant failed to carry his burden
of establishing that the entry occurred during the store’s regular business hours.
       On the other hand, we review de novo the trial court’s legal conclusion that the
store’s employee rest room was not part of a “commercial establishment” within the
meaning of section 459.5. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83; People v.
Perkins, supra, 244 Cal.App.4th at p. 136.) “ ‘ “[I]n construing the statutory provisions a


       4   The record on appeal contains no police reports.



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court is not authorized to insert qualifying provisions not included and may not rewrite
the statute to conform to an assumed intention which does not appear from its
language.” ’ ” (In re Hoddinott (1996) 12 Cal.4th 992, 1002; see also People v. Rizo
(2000) 22 Cal.4th 681, 685–686.)
       Turning to the words of the statute here, we find no indication that shoplifting can
occur only in specific areas of a commercial establishment. Nor does there appear any
requirement that the business’s commercial activity must be taking place in the area from
which the theft occurs in order to qualify the offense as shoplifting. The trial court thus
added an element to the offense that is absent from the plain language of the statute itself
when it determined that appellant’s theft would qualify as shoplifting only if it occurred
in an area of the commercial establishment open to the public where merchandise is sold.
Based on its impermissible revision of the definition of shoplifting, the court concluded
that the crime was burglary rather than shoplifting because appellant entered the store
through the back and stole an item from the employee rest room rather than an area of the
store that was “open for business.”
       Relying on J.L., supra, 242 Cal.App.4th at pages 1114–1115, the Attorney
General urges we adopt a “commonsense meaning” of “commercial establishment” to
hold that the term excludes any room within the business where the buying and selling of
goods or services does not occur. According to the Attorney General, because “[a]
person is guilty of burglary who enters a room with the intention to commit a theft”
(People v. Edwards (1971) 22 Cal.App.3d 598, 602), when appellant returned to the
employee rest room to steal the air compressor, he did not enter a commercial
establishment within the meaning of section 459.5. In J.L., however, the court applied its
commonsense interpretation of “commercial establishment” not to a single room or area
within a commercial venue, but to an entire school facility, and concluded that “[a] public
high school is not an establishment primarily engaged in the sale of goods and services;
rather, it is an establishment dedicated to the education of students.” (J.L., supra, 242
Cal.App.4th at p. 1114.)



                                              7
       In contrast to the public high school in J.L., Computers NLA unquestionably
qualifies as a “commercial establishment” within the meaning of section 459.5. We find
nothing in J.L.’s discussion of schools to inform our decision as to whether shoplifting
includes the entry into any area of a commercial establishment during business hours,
whether open to the public or not, as long as the establishment as a whole is open for
business.
       We do, however, find guidance on the question in our Supreme Court’s recent
holding in People v. Garcia (2016) 62 Cal.4th 1116 (Garcia). There, the defendant
challenged two burglary convictions that resulted from his entry into a store to commit
robbery followed by his entry into the store’s bathroom to commit rape. Reversing the
dual burglary convictions, our Supreme Court found insufficient evidence that the rest
room afforded “its occupants a separate and reasonable expectation of protection from
intrusion and danger, beyond that provided by the shop itself.” (Id. at p. 1120.) The
court explained: “Where a burglar enters a structure enumerated under section 459 with
the requisite felonious intent, and then subsequently enters a room within that structure
with such intent, the burglar may be charged with multiple burglaries only if the
subsequently entered room provides a separate and objectively reasonable expectation of
protection from intrusion relative to the larger structure. Such a separate expectation of
privacy and safety may exist where there is proof that the internal space is owned, leased,
occupied, or otherwise possessed by a distinct entity; or that the room or space is secured
against the rest of the space within the structure, making the room similar in nature to the
stand-alone structures enumerated in section 459.” (Id. at pp. 1119–1120.) The court
identified several characteristics that might indicate an interior room shares the enhanced
expectation of privacy and security of a stand-alone structure, including a locked door
and signs to prevent unauthorized access. (Id. at p. 1129.) Such features demonstrate “a
separate and objectively reasonable expectation of protection from intrusion, distinct
from that provided by the security of the overarching structure.” (Id. at p. 1127.)
       Here, like the store bathroom in Garcia, the rest room in the Computers NLA store
was separate from the main part of the business and was not generally open to the public.


                                             8
But as in Garcia, there is no evidence the rest room in this case was kept locked or
provided any more than “a limited transitory source of privacy.” (Garcia, supra, 62
Cal.4th at p. 1132.) As demonstrated by appellant’s use of the rest room before returning
to steal the air compressor, there appeared to be no obstacles to gaining entry to this
“employee area.” The area thus lacked any objective indications of a heightened
expectation of privacy and security beyond what the store itself provided such that the
offense should be deemed burglary rather than shoplifting.
       Because appellant’s crime qualified under section 459.5 as shoplifting, the trial
court erred in denying relief under Proposition 47.
                                      DISPOSITION
       The order is reversed.
       CERTIFIED FOR PUBLICATION.


                                                  LUI, J.
We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




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