Filed 12/4/15
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION FIVE


In re J.L., a Person Coming Under the            No. B261634
Juvenile Court Law.
                                                 (Super. Ct. No. PJ51031)


THE PEOPLE,

        Plaintiff and Respondent,

        v.

J.L.,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Los Angeles County, Robert J.
Schuit, Judge. Affirmed.
        Bruce G. Finebaum, 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, Susan Sullivan Pithey,
Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.
       A minor student, appellant J.L., stole another student’s cell phone out of a school
locker. The juvenile court found J.L. committed burglary in violation of Penal Code
section 459.1 After the passage of Proposition 47 in November 2014, J.L. petitioned to
change his juvenile felony burglary offense to a misdemeanor shoplifting offense under
newly-enacted section 459.5. We consider whether J.L.’s theft of the phone from the
school locker was a theft from a “commercial establishment” such that it is eligible for
reclassification as misdemeanor shoplifting under section 459.5.


                                     BACKGROUND


       A.     J.L.’s Burglary Adjudication2
       On May 15, 2014, a teacher at Canyon High School in Santa Clarita found J.L. and
another student hiding in the bathroom after class. The teacher told them to go to their
next class, but J.L. and the other student went into the locker room. The teacher saw
them do so and notified a supervisor. The teacher and supervisor entered the locker room
and found J.L. and the other student in possession of paper clips that had been formed
into a shape to open or pick locks. J.L. and the other student were taken to the school
office, and another student at the school subsequently reported that his phone was missing
from his locker.
       When interviewed by a School Resource Sheriff’s Deputy, J.L. admitted that he
and his companion intended to steal from the locker room. J.L. told the deputy that after
the teacher told him and his companion to return to class, they entered the locker room
and stole the phone, which they placed in an empty locker. J.L. showed the deputy where
the phone was located. J.L. and his companion were placed under arrest.



1      All undesignated references that follow are to the Penal Code.
2      Because J.L. admitted the burglary, the background facts are taken from the
probation officer’s report.

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        The district attorney’s office filed a Welfare & Institutions Code section 602
petition charging J.L. with one count of burglary, a felony (§ 459), one count of
possession of burglar’s tools, a misdemeanor (§ 466), and one count of receiving stolen
property of a value not exceeding $950, a misdemeanor (§ 496, subd. (a)).
        J.L. admitted the count 1 burglary allegation in the petition, and the juvenile court
dismissed counts 2 and 3. The court declared J.L.’s burglary offense to be a felony and
placed him on probation pursuant to Welfare & Institutions Code section 790,
subdivisions (a) and (b).


        B.     Passage of Proposition 47
        California voters approved Proposition 47, the Safe Neighborhood and Schools
Act, on November 4, 2014. Proposition 47 was intended 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.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70.) The
Act reclassified certain drug and theft offenses, which had previously been felonies or
“wobblers,”3 as misdemeanors. (People v. Contreras (2015) 237 Cal.App.4th 868, 889-
890.)
        Proposition 47 created a new crime of “shoplifting,” a misdemeanor offense that
punishes certain conduct that previously would have qualified as a burglary. Now
codified at section 459.5, the statute added by the initiative provides:
“(a) Notwithstanding Section 459 [the burglary statute], 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


3       A “wobbler” is a crime that can be charged as either a felony or a misdemeanor.

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into a commercial establishment with intent to commit larceny is burglary. Shoplifting
shall be punished as a misdemeanor. . . . [¶] (b) Any act of shoplifting as defined in
subdivision (a) shall be charged as shoplifting. No person who is charged with
shoplifting may also be charged with burglary or theft of the same property.” (Ballot
Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 5, p. 71.) The ballot pamphlet for
Proposition 47 explained that “[u]nder current law, shoplifting property worth $950 or
less (a type of petty theft) is often a misdemeanor. However, such crimes can also be
charged as burglary, which is a wobbler. Under this measure, shoplifting property worth
$950 or less would always be a misdemeanor and could not be charged as burglary.”
(Ballot Pamp., Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47, p. 35.)
       Proposition 47 also included a provision that allows certain offenders to seek
resentencing. Defendants who are serving a sentence for a felony that would have been a
misdemeanor had Proposition 47 been in effect at the time of the offense may file a
petition for recall of sentence. (§ 1170.18.)


       C.     J.L.’s Petition for Recall of Sentence
       On January 8, 2015, J.L. filed a petition for recall of sentence seeking to reclassify
his felony burglary offense to misdemeanor shoplifting under section 459.5. He argued
that a school was “open during normal business hours as is any commercial
establishment” and he asserted there did not appear to be any other language or restriction
in section 459.5 that would bar finding his offense eligible for resentencing.
       The court denied J.L.’s motion, finding that the facts of his case did not qualify as
an offense under section 459.5, which applies only to thefts from a “commercial
establishment.” The court reasoned that section 460 defined degrees of burglary, and
“[b]asically you’ve got a definition for first [degree burglary], and what they say is
everything else that isn’t covered by first [degree burglary] is automatically a second
[degree burglary]. [¶] So it seems to me that while prior to Prop[osition] 47, entering a
commercial establishment for the purpose of shoplifting would have qualified as second


                                                4
degree burglary, [but] with the advent of Prop[osition] 47, that’s no longer the case. They
carved out a second crime for it. But that doesn’t mean there aren’t other types of
traditional second [degree] burglaries that are not covered by [Proposition] 47, and I think
this is one of those. I think entering a school is not the same thing as shoplifting under
459.5.” The juvenile court therefore denied J.L.’s petition to recall his sentence.


                                       DISCUSSION
       J.L. argues his felony adjudication for burglary based on his theft of the cell phone
from a school locker may be reduced to misdemeanor shoplifting under section 459.5.4
He correctly observes that section 459.5 does not define the term “commercial
establishment,” and he urges us to hold that a public high school is such an establishment
because, as he puts it, a school “share[s] similar traits with a commercial establishment,
such as maintaining regular hours of operation, being closed regular days and hours,
engaging with members of the public, and conducting normal functions associated with
most businesses (e.g. maintaining personnel, handling payroll, accounting, accepting
phone calls, dealing with inventory, etc.).” Respondent counters that the generally
accepted meaning of the term “commercial establishment” does not include a school, at
least under the circumstances presented by J.L.’s offense conduct. Respondent gets the
better of the argument.
       “‘In interpreting a voter initiative . . . we apply the same principles that govern
statutory construction. [Citation.] Thus, “we turn first to the language of the statute,
giving the words their ordinary meaning.” [Citation.]’” (People v. Briceno (2004) 34
Cal.4th 451, 459; Horwich v. Superior Court (1999) 21 Cal.4th 272, 276.) “‘The

4      Appellant also contends, and we assume for purposes of our disposition, that
juvenile offenders may properly invoke Proposition 47’s recall of sentence provision,
section 1170.18, to seek reclassification of a prior adjudication. (Alejandro N. v. Superior
Court (2015) 238 Cal.App.4th 1209, 1225 [“Considered in its broader context, section
1170.18’s use of adult criminal terminology does not reflect an intent to exclude juvenile
offenders from its provisions”].)

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statutory language must also be construed in the context of the statute as a whole and the
overall statutory scheme [in light of the electorate’s intent]. [Citation.] When the
language is ambiguous, “we refer to other indicia of the voters’ intent, particularly the
analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.]
In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters
who passed the initiative measure.’” (People v. Briceno, supra, at p. 459.) Our review is
de novo. (California Chamber of Commerce v. Brown (2011) 196 Cal.App.4th 233, 244.)
       Burglary of a school is second degree burglary. (§ 460, subds. (a)-(b).) Section
459.5, however, carves out an exception to second degree burglary and states that
shoplifting, as defined in the statute, can be charged only as a misdemeanor offense
(unless specified exceptions apply). (§ 459.5, subds. (a)-(b).) 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. (§ 459.5, subd. (a).)
       J.L.’s argument fails on the first of these elements. Whatever broader meaning
“commercial establishment” as used in section 459.5 might bear on different facts, J.L.’s
theft of a cell phone from a school locker room was not a theft from a commercial
establishment. Giving the term its commonsense meaning, a commercial establishment is
one that is primarily engaged in commerce, that is, the buying and selling of goods or
services. That commonsense understanding accords with dictionary definitions and other
legal sources. (Webster’s 3d New Internat. Dict. (2002) p. 456 [“commercial” means
“occupied with or engaged in commerce” and “commerce” means “the exchange or
buying and selling of commodities esp. on a large scale”]; The Oxford English Reference
Dict. (2d ed. 1996) p. 290 [defining “commerce” as “financial transactions, esp. the
buying and selling of merchandise, on a large scale”]; Black’s Law Dict. (10th ed. 2014)
p. 325 [“commercial” means “[o]f, relating to, or involving the buying and selling of
goods; mercantile”]; see also 37 C.F.R. § 258.2 [copyright regulation defining the term
“commercial establishment” as “an establishment used for commercial purposes, such as


                                                6
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”]; Gov. Code § 65589.5 [defining “neighborhood commercial”
land use as “small-scale general or specialty stores that furnish goods and services
primarily to residents of the neighborhood”]; People v. Cochran (2002) 28 Cal.4th 396,
404-405 [citing dictionary definition of commerce, “[t]he buying and selling of goods,
especially on a large scale,” in interpreting statutory phrase “commercial purpose”].) 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.
       We believe the voters enacting Proposition 47 understood the reference to
“shoplifting” in the ballot pamphlet materials, including in the title and text of section
459.5, in the same way. Shoplifting is commonly understood as theft of merchandise
from a store or business that sells goods to the public. (Webster’s 3d New Internat. Dict.,
supra, p. 2101 [defining shoplifting as “the stealing of goods on display in a store”];
Black’s Law Dict., supra, p. 1590 [“Theft 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”].) Except for perhaps a school cafeteria
or bookstore (circumstances not at issue here, where the phone was stolen from a school
locker), a public school is not engaged in the business of selling merchandise or goods at
all. It is therefore immaterial, as defendant contends, that a school maintains regular
hours, accepts phone calls, or may handle payroll in connection with its personnel.
Looking to the ordinary meaning of the statutory language, we simply do not believe that
the voters enacting Proposition 47 understood a public high school to be a commercial
establishment or a theft from a school locker to be “shoplifting.” Thus, the trial court
correctly found J.L.’s burglary offense is ineligible for reclassification.




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                                    DISPOSITION
     The order denying J.L.’s petition for recall of sentence is affirmed.


                        CERTIFIED FOR PUBLICATION




                                 BAKER, J.


We Concur:




     MOSK, Acting P.J.




     KRIEGLER, J.




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