Filed 5/5/16 P. v. Dool 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Appellant,                                        E063843

v.                                                                       (Super.Ct.No. RIF1304400)

ROBERT TERRAL DOOL,                                                      OPINION

         Defendant and Respondent.



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

Reversed.

         Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Plaintiff and Appellant.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Respondent.




                                                             1
                                     INTRODUCTION

       The People appeal from an order granting defendant Robert Terral Dool’s petition

for resentencing of his conviction of second degree burglary (Pen. Code, § 459)1 as

misdemeanor shoplifting (§ 459.5). The People contend defendant’s offense did not

qualify for resentencing under Proposition 47 and section 1170.18 because (1) defendant

entered a bank with the intent to commit felony identity theft, not larceny, and (2) a bank

is not a commercial establishment for purposes of the newly defined offense of

shoplifting (§ 459.5). We will reverse.

                      FACTS AND PROCEDURAL BACKGROUND

       Defendant entered a bank and attempted to cash a forged check in the amount of

$275. He was charged in an information with burglary; the information alleged he had

entered the bank “with intent to commit theft and a felony.” He pled guilty to second

degree burglary (§ 459) and admitted a strike prior (§§ 667, subds. (c), (e)(1), 1170.12,

subd. (c)(1)), and he was sentenced to six years in state prison. An additional count of

section 475, subdivision (c), was dismissed. As the factual basis for the plea, defendant

agreed in open court that on January 20, 2013, he “entered a bank with the intent to

commit theft,” and he initialed the following statement on the plea form: “Factual Basis:

I agree that I did the things that are stated in the charges that I am admitting.”




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


                                               2
       On December 8, 2014, defendant filed a petition for resentencing on the ground

that his conviction for second degree burglary should be reduced to misdemeanor

shoplifting. Over the People’s opposition on the ground that a bank is not a commercial

establishment, the trial court granted the 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.)

       Resentencing Under 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.




                                              3
       Second degree commercial burglary is an offense that qualifies for resentencing if

the crime fits the elements of the newly defined crime of shoplifting. (§ 459.5.) Section

459.5, subdivision (a), 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). Any

other entry into a commercial establishment with intent to commit larceny is burglary.”

(Italics added.)

       Shoplifting Requires the Intent to Commit Larceny

       The question before us is whether defendant would have been guilty of

misdemeanor shoplifting in violation of section 459.5 if Proposition 47 had “been in

effect at the time” that he entered the bank. (§ 1170.18, subd. (a).) As defined by section

459.5, the offense of shoplifting requires an “intent to commit larceny.” 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.)

       However, in People v. Williams (2013) 57 Cal.4th 776, 788-789 (Williams), the

court clarified that larceny and acquiring property by false pretenses are distinct and

mutually exclusive offenses. In Williams, the defendant used payment cards re-encoded

with another person’s credit card information to buy Walmart gift cards and then used


                                             4
force against a security guard who tried to detain him. The defendant appealed his

ensuing robbery conviction, and the 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.)

       Here, as in Williams, defendant’s act of obtaining money was consensual and

nontrespassory. Thus, he did not enter the bank with the intent to commit larceny as

defined in Williams, and his conduct did not fall within the definition of shoplifting as set

forth in section 459.5. Therefore, the trial court erred in concluding defendant qualified

for resentencing and granting the petition.

       The Argument That the Bank Was Not a Commercial Establishment Is Moot

       Because we conclude that defendant did not enter the bank with the intent to

commit larceny, we need not address the People’s additional contention that the bank was

not a commercial establishment within the meaning of section 459.5.




                                              5
                                   DISPOSITION

      The order appealed from is reversed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                 McKINSTER
                                                             J.
I concur:



RAMIREZ
                      P. J.




                                             6
[People v. Dool, E063843]

        MILLER, J., Dissenting.

        I respectfully dissent.

        The trial court granted defendant’s petition to recall his sentence (Petition)

filed pursuant to Penal Code section 1170.18.1 The majority reverses on the

ground that defendant’s entry into a bank with the intent to cash a forged check in

the amount of $275 does not qualify as shoplifting under newly enacted section

459.5. Specifically, the majority concludes that theft by false pretenses is not the

same as “larceny” as that term is used in section 459.5. I would uphold the trial

court’s order.

        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

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.”




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

                                            1
       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 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, “[n]otwithstanding

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 not exceed

$950. (§ 459.5, subd. (a); see also People v. Contreras (2015) 237 Cal.App.4th



                                            2
868, 892.) The crime of shoplifting, with certain exceptions not relevant here, is

punishable only as a misdemeanor.

       Here, it is undisputed by the parties that the amount involved in the case

was less than $950. 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 the defendant did not

enter the bank to commit “larceny.” However, defendant pled guilty to entering

the bank to with the intent to commit “theft and a felony.” Such theft was by false

pretenses, 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

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

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


                                           3
person of money, labor or real or personal property.” (Ibid.) Larceny is statutorily

equated with “theft.” Section 490a provides, “[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.”

       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, “[I]n 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 also People v. Curtin (1994) 22

Cal.App.4th 528, 531 [obtaining property by false pretenses along “with other

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




                                            4
       Moreover, several other courts have determined that larceny in section

459.5 includes theft by false pretenses. (See People v. Root (2016) 245

Cal.App.4th 353, 360, petn. for review pending, petn. filed Apr. 6, 2016, S233546

[“the ‘intention to commit larceny’ requirement of section 459.5 can be satisfied

by the broader sense of an intent to commit theft”]; People v. Triplett (2016) 244

Cal.App.4th 824, 833, review granted Apr. 27, 2016, S233172.)

       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


                                            5
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.)

        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. His 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 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


                                           6
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

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

commerce> [as of May 5, 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 May 5,

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).)




                                             7
       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

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 that 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 uphold the trial court’s

order granting the Petition.



                                                    MILLER
                                                                                      J.




                                           8
