Filed 6/10/16 P. v. Simon 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E062900

v.                                                                       (Super.Ct.No. FVI1300530)

VERNAE JENNIFER SIMON,                                                   OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed.

         Cindy Brines, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.




                                                             1
                                       INTRODUCTION

         Defendant and appellant Vernae Jennifer Simon appeals from the denial of her

petition under Proposition 47 and Penal Code section 1170.181 for redesignation of her

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

Defendant contends the trial court erred in determining that the bank where she

committed her crime was not a commercial establishment within the meaning of section

459.5. We affirm.

                        FACTS AND PROCEDURAL BACKGROUND

         On December 28, 2012, defendant entered a bank in Adelanto and attempted to

open an account by depositing a fraudulent check. Earlier that day, she had attempted to

deposit a fraudulent check at another bank in Hesperia. When she was arrested, she had

social security numbers and four fraudulent checks with a total face value of $345 in her

purse.

         Defendant was charged with second degree commercial burglary (§ 459,

counts 1 & 2) and forgery (§ 470, subd. (d), count 3). On March 14, 2013, defendant

entered a plea of no contest to one count of second degree burglary (§ 459), and the

remaining counts were dismissed. The parties stipulated that the police report provided

the factual basis for the plea.




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


                                                2
       On December 29, 2014, defendant filed a petition requesting that her conviction be

redesignated as misdemeanor shoplifting. (§ 459.5.) The trial court held that the bank

she entered was not a retail establishment and denied her petition.

                                       DISCUSSION

       Standard of Review

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

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

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

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

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

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

pamphlet.’” (Ibid.)

       Overview of Proposition 47 and Section 1170.18

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

and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes

from felonies or wobblers to misdemeanors for qualified defendants and added, among

other statutory provisions, section 1170.18. Section 1170.18 creates a process through

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

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

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

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


                                              3
conviction, whether by trial or plea, of a felony or felonies who would have been guilty

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

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

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

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

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

added by [Proposition 47].”

       Defendant’s Offense

       Defendant entered a plea of no contest to one count of second degree burglary

(§ 459); she now contends her offense should be reduced to misdemeanor shoplifting.

Section 459.5 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 [with exceptions not relevant here]. [¶]

(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.”

       Defendant contends the trial court erred in determining that the bank was not a

commercial establishment within the meaning of section 459.5. At the hearing on

defendant’s petition, the People argued that defendant was not eligible for resentencing


                                              4
because the bank where she committed her crime was not a “retail establishment,” and

the trial court denied the petition without expressly stating its reasoning. We need not

reach the question of whether a bank is a “commercial establishment” under section

459.5 because we review the trial court’s decision, not its reasoning, and will affirm a

judgment or order that reached the correct result, “‘“regardless of the considerations

[that] may have moved the trial court to its conclusion.”’” (People v. Zapien (1993) 4

Cal.4th 929, 976.)

       The newly defined offense of shoplifting (§ 459.5) is committed when a defendant

enters a commercial establishment during regular business hours “with intent to commit

larceny.” (§ 459.5, subd. (a).) The elements of the crime of larceny are that a person

“(1) takes possession (2) of personal property (3) owned or possessed by another, (4) by

means of trespass and (5) with intent to steal the property, and (6) carries the property

away.” (People v. Davis (1998) 19 Cal.4th 301, 305.)

       The issue of whether an intent to commit theft by false pretenses or fraud qualifies

as an intent to commit larceny within the meaning of section 459.5 is currently pending in

our Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35, review granted

Feb. 17, 2016, S231171; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted

Mar. 30, 2016, S232673.)

       The case of People v. Williams (2013) 57 Cal.4th 776, 788-789, clarified that

larceny and acquiring property by false pretenses are distinct and mutually exclusive

offenses. In that case, the defendant used payment cards re-encoded with another

person’s credit card information to buy Walmart gift cards and then used force against a


                                              5
security guard who tried to detain him. The defendant appealed his ensuing robbery

conviction, and our Supreme Court reversed on the ground that the defendant had

acquired property through his false representation. The court explained that “[b]ecause a

‘felonious taking,’ as required in California’s robbery statute (§ 211), must be without the

consent of the property owner, or ‘against his will’ ([§ 211]), and Walmart consented to

the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking,

and hence did not commit robbery.” (Id. at p. 788.)

       In People v. Curtin (1994) 22 Cal.App.4th 528, the court held that when the

defendant entered a bank, cashed a check made out to himself but drawn on the account

of another depositor without permission or authorization, the crime was that of obtaining

property by false pretenses, not that of larceny by trick. (Id. at p. 532.) The court

explained that “‘[a]lthough the crimes of larceny by trick . . . and obtaining property by

false pretenses are much alike, they are aimed at different criminal acquisitive

techniques.’” (Id. at p. 531.) The court continued that “[d]efendant’s misrepresentation

of himself as a depositor . . . was certainly a trick or device. But he used it to acquire

possession and title to the money, not merely possession. The bank did not give

defendant the money on any understanding as to its limited use; rather, believing he was

[the depositor], the bank gave defendant the money to keep or use as he would.” (Id. at

p. 532.)

       Defendant contends she was “not given the opportunity to prove that she entered

the bank with the intent to commit larceny.” However, the defendant seeking relief under

section 1170.18 “‘“has the burden of proof as to each fact the existence or nonexistence


                                              6
of which is essential to the claim for relief or defense he is asserting.”’” (People v.

Sherow (2015) 239 Cal.App.4th 875, 879.) Here, we conclude the trial court reached the

correct result because defendant failed to establish that she entered the bank with the

intent to commit larceny rather than theft by false pretenses.

                                       DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 McKINSTER
                                                                                          J.
I concur:



RAMIREZ
                        P. J.




                                              7
       MILLER, J., Dissenting.

       I respectfully dissent. The majority upholds the denial of defendant’s

petition to recall her sentence (Petition) filed pursuant to Penal Code section

1170.18.1 The trial court denied the Petition without comment after it was argued

by the People that a bank was not a commercial establishment. The majority

upholds the denial of the Petition based on its finding that defendant’s entry into a

bank in possession of four fraudulent checks totaling $345 did not qualify as

shoplifting under newly enacted section 459.5. Specifically, the majority

concludes theft by false pretenses is not the same as “larceny” as that term is used

in section 459.5. I would reverse the trial court’s order and remand to the trial

court for it to determine if defendant is still in custody and, if so, whether she

poses an unreasonable risk to public safety.

       Proposition 47 added section 1170.18. Subdivision (a) of 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

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


                                           1
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 section 1170.18, subdivision (b), the trial court first determines

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

1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a),

then he or she will be resentenced to a misdemeanor, unless the court, within its

discretion, determines the petitioner would pose an unreasonable risk to public

safety. (§ 1170.18, subd. (b).)

       In this case, defendant was convicted of burglary in violation of

section 459. Section 459 is not listed in Proposition 47 and remains after the

effective date of Proposition 47. Second degree burglary, which is defined in

relevant part as the entering of a building other than a residence “with intent to

commit grand or petit larceny or any felony,” remains punishable as either a

misdemeanor or a felony. (§§ 459, 461, subd. (b).) Section 459.5 provides:

“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).” (§ 459.5,

subd. (a).) As such, shoplifting consists of four elements, which must be found by

the trial court as follows: (1) entry into a commercial establishment; (2) while that

establishment is open during regular business hours; (3) with the intent to commit

larceny; and (4) the value of the property that is taken or intended to be taken does


                                           2
not exceed $950. (§ 459.5, subd. (a); see People v. Contreras (2015) 237

Cal.App.4th 868, 892.) The crime of shoplifting, with certain exceptions not

relevant here, is punishable only as a misdemeanor.

       Here, the amount involved in the case was less than $950 because the

factual basis of the plea was taken from the police report, which detailed the face

value of the checks in defendant’s possession. There also is no dispute that the

bank was open during regular business hours. The questions in this case are

(1) whether defendant entered the bank with the intent to commit larceny, and (2)

whether the bank was a commercial establishment. The majority concludes that

defendant did not enter the bank to commit “larceny.” Here, defendant had the

intent to commit theft by false pretenses, as determined by the majority, and it

must be determined if this is the equivalent of larceny as that term is used in

section 459.5.

       “Theft” is defined in section 484, subdivision (a), as follows: “Every

person who shall feloniously steal, take, carry, lead, or drive away the personal

property of another, or who shall fraudulently appropriate property which has been

entrusted to him or her, or who shall knowingly and designedly, by any false or

fraudulent representation or pretense, defraud any other person of money, labor or

real or personal property, or who causes or procures others to report falsely of his

or her wealth or mercantile character and by thus imposing upon any person,

obtains credit and thereby fraudulently gets or obtains possession of money, or

property or obtains the labor or service of another, is guilty of theft.” As such, the


                                          3
term “theft” includes theft by false pretenses, that is, “knowingly and designedly,

by any false or fraudulent representation or pretense, defraud[ing] any other

person of money, labor or real or personal property.” (Ibid.) Larceny is statutorily

equated with “theft.” Section 490a provides: “Wherever any law or statute of this

state refers to or mentions larceny, embezzlement, or stealing, said law or statute

shall hereafter be read and interpreted as if the word ‘theft’ were substituted

therefor.”

       In People v. Nguyen (1995) 40 Cal.App.4th 28, the defendant was

convicted of three counts of burglary for giving worthless checks to the victims in

exchange for their property. On appeal, the defendant argued that he did not

intend to commit larceny but rather theft by false pretenses, which would not

support his burglary convictions. (Id. at pp. 30-31.) The appellate court rejected

this argument, finding that “in 1927, the Legislature amended the larceny statute to

define theft as including the crimes of larceny, embezzlement and obtaining

property by false pretense. [Citation.] At the same time, the Legislature also

enacted section 490a stating, ‘[w]herever any law or statute of this state refers to

or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter

be read and interpreted as if the word “theft” were substituted therefor.’

[Citation.] Thus, the Legislature has indicated a clear intent that the term ‘larceny’

as used in the burglary statute should be read to include all thefts, including ‘petit’

theft by false pretenses.” (Id. at p. 31; see People v. Curtin (1994) 22 Cal.App.4th




                                           4
528, 531 [obtaining property by false pretenses along “with other larcenous

crimes, have been consolidated into the single crime of theft”].)

       This conclusion that larceny includes theft by false pretenses is also

supported by the intent of the voters. Proposition 47 was intended to “[r]equire

misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft

and drug possession, unless the defendant has prior convictions for specified

violent or serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop.

47, § 3, subd. (3), p. 70.) Petty theft by false pretenses is exactly the type of

nonserious, nonviolent crime that should be eligible for resentencing under

Proposition 47.

       The majority relies upon People v. Williams (2013) 57 Cal.4th 776. In

Williams, a man committed theft by false pretenses and subsequently pushed a

security guard in an attempt to flee. The California Supreme Court addressed

whether theft by false pretenses could satisfy the “felonious taking” requirement

of robbery. (Id. at pp. 779-780.) The defendant argued that the “felonious taking”

requirement, which is only present in robbery and no other types of theft, could

only be satisfied by the crime of theft by larceny, and not theft by false pretenses.

(Id. at p. 781.) The court, after analyzing the common law meanings of the

different theft offenses, found that larceny is a necessary element of robbery as it

requires a trespassory taking. (Id. at pp. 786-787.) Thus, Williams held that theft

by false pretenses could not support a robbery conviction, because only theft by

larceny could fulfill the “felonious taking” requirement. (Id. at p. 789.)


                                           5
        I find Williams distinguishable because it involved the interpretation of the

“felonious taking” element of robbery, not burglary. Section 459.5 redefined

certain second degree burglaries, and our high court has held “[a]n intent to

commit theft by a false pretense or a false promise without the intent to perform

will support a burglary conviction.” (People v. Parson (2008) 44 Cal.4th 332,

354.)

        Here, it is clear that defendant pled guilty to second degree burglary both

based on the intent to commit theft and a felony. Her entry with the intent to

commit theft by false pretenses qualifies as shoplifting under section 459.5.

        I further find that a bank is a commercial establishment. 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 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: “[A]ctivities that relate to the buying and


                                           6
selling of goods and services.” (See <http://www.merriam-webster.com/

dictionary/commerce> [as of June 10, 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.” (See <http:// www.merriam-webster.com/dictionary/commodities> [as of

June 10, 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 the Code of Federal Regulations, 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.” (37 C.F.R § 258.2

(2014).)

       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 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


                                            7
from a commercial establishment.” Thereafter, the court defined 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 commercial establishment is reasonably interpreted to include

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

in the buying and selling of services. I would reverse the trial court’s order

denying the Petition. I would remand for the trial court to determine whether

defendant is still in custody. If she is still in custody, the trial court would need to

determine whether she would pose an unreasonable risk to public safety prior to

resentencing her to a misdemeanor. (§ 1170.18, subd. (b).)




                                                   MILLER
                                                                                       J.




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