Filed 8/16/16


                     CERTIFIED FOR PARTIAL PUBLICATION*


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA


THE PEOPLE,                                       D068439

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCE314973)

BABYRAY HUDSON,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, John M.

Thompson, Judge. Affirmed.

        Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and

Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.




*      Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III.
       Babyray Hudson appeals from an order denying his petition to reduce his second

degree burglary and forgery convictions to misdemeanors under Proposition 47, the Safe

Neighborhoods and Schools Act (the Act). (Pen. Code,1 § 1170.18.) Hudson's

convictions involve a 2011 incident in which he entered a bank, falsely impersonating

another person, with the intent to commit a felony by signing someone else's name to a

check. We conclude that, while a bank is a commercial establishment (§ 459.5), the trial

court properly denied the petition because Hudson failed to establish his eligibility for

resentencing.

                                PROCEDURAL BACKGROUND

       Hudson pled guilty to one count each of second degree burglary (§ 459), forgery

(§ 470, subd. (a)), and false impersonation (§ 529, subd. (a)(2)). He also admitted the

truth of two prior prison term commitment allegations. (§§ 667.5 & 668.) The trial court

sentenced Hudson to a total term of five years, suspended execution of the sentence,

granted three years formal probation and indicated Hudson was to complete a residential

treatment program of no less than six months. The trial court later revoked and

terminated probation and imposed the previously stayed five-year commitment, to be

served locally under section 1170, subdivision (h).

       In 2014, after passage of the Act, Hudson filed a petition asserting his second

degree burglary and forgery convictions must be reduced to misdemeanors, and asking

the court to exercise its discretion to reduce the false impersonation conviction to a

misdemeanor. The trial court denied the petition, finding a bank is not a commercial


1      Undesignated statutory references are to the Penal Code.

                                              2
establishment under the Act and that Hudson intended to take property in excess of $950.

Hudson timely appealed.

                                       DISCUSSION

                                              I

                             GENERAL LEGAL PRINCIPLES

       In November 2014, the electorate approved the Act, which makes certain theft-

related and drug-related offenses misdemeanors. (People v. Rivera (2015) 233

Cal.App.4th 1085, 1091 (Rivera).) Among other things, the Act reduced certain types of

forgeries identified in section 473, subdivision (b) to misdemeanors, including forgery by

check under section 475, as long as the value of the check does not exceed $950. (§ 473,

subd. (b).) The Act added section 459.5, which classifies shoplifting as a misdemeanor

"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).)

       The Act also created a new resentencing provision under which certain individuals

may petition the superior court for a recall of sentence and request resentencing.

(§ 1170.18, subd. (a).) "A person who satisfies the criteria in section 1170.18 shall have

his or her sentence recalled and be 'resentenced to a misdemeanor . . . 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).)" (Rivera, supra, 233 Cal.App.4th at

p. 1092.)

       " 'In interpreting a voter initiative, we apply the same principles that govern our

construction of a statute." (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) " 'In


                                              3
determining intent, we look first to the words themselves. [Citations.] When the

language is clear and unambiguous, there is no need for construction. [Citations.] When

the language is susceptible of more than one reasonable interpretation, however, we look

to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to

be remedied, the legislative history, public policy, contemporaneous administrative

construction, and the statutory scheme of which the statute is a part. [Citations.]'

[Citation.] We also ' "refer to other indicia of the voters' intent, particularly the analyses

and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.] 'Using

these extrinsic aids, we "select the construction that comports most closely with the

apparent intent of the [electorate], with a view to promoting rather than defeating the

general purpose of the statute, and avoid an interpretation that would lead to absurd

consequences." ' " (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007,

1014.)

                                               II

                      SECOND DEGREE BURGLARY CONVICTION

         Hudson pled guilty to second degree burglary based on his act of entering a bank,

falsely impersonating another person, with the intent to commit a felony by signing

someone else's name to a check. The question presented is whether the circumstances of

the offense entitle Hudson to resentencing under the Act. The inquiry is one of statutory

interpretation, which we review de novo. (People v. Ravaux (2006) 142 Cal.App.4th

914, 919.)




                                               4
       Section 459.5 defines "shoplifting" as: (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. Hudson argues elements 1, 3 and 4 in this appeal. As we shall

explain, the trial court did not err in refusing to resentence Hudson's second degree

burglary conviction as, while a bank is a commercial establishment and Hudson's actions

qualified as larceny, Hudson failed to carry his burden of showing that he was eligible for

resentencing.

                               A. Commercial Establishment

       The trial court denied the petition finding that a bank is not a commercial

establishment under the Act. Hudson asserts the trial court erred because the plain

language of section 459.5 and the legislative intent behind the Act compel the conclusion

that a "commercial establishment" as used in the new shoplifting statute must be broadly

construed to include a bank.

       The Act does not define the term "commercial establishment." The People note

there are no published cases in California addressing whether a bank constitutes a

commercial establishment. However, in cases published after the People filed their

respondent's brief, the People conceded that a bank constituted a commercial

establishment. (People v. Root (2016) 245 Cal.App.4th 353, 356 (Root), review granted

May 11, 2016, S233546; People v. Triplett (2016) 244 Cal.App.4th 824, 829, 831, review

granted April 27, 2016, S233172 [plea agreement established defendant entered a bank




                                             5
and the People conceded at a hearing on the petition that defendant entered a commercial

establishment].)

       Focusing on the common definition of "shoplifting," the People contend a bank is

a financial business where transactions are held, not a commercial establishment where

items are on display for sale. (Black's Law Dict. (10th ed. 2014) p. 1590 [defining

shoplifting as "[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."].) The plain language of section 459.5 compels the

conclusion that a bank qualifies as a commercial establishment.

       The People erroneously focus on the word "shoplifting," which is not an element

of the crime. Rather section 459.5 gives shoplifting a more technical definition involving

four separate elements, including entry into a commercial establishment. Significantly,

the Act does not define shoplifting according to its common meaning and there is nothing

in the text of the Act to support a conclusion that the voters intended to adopt the

common meaning of shoplifting.

       The court in In re J.L (2015) 242 Cal.App.4th 1108 discussed the definition of

"commercial establishment" in the context of a minor stealing a cell phone from the high

school locker of another student. (Id. at p. 1111.) The J.L. court affirmed the

adjudication of the minor for burglary, holding the location of the theft did not occur at a

"commercial establishment" as contemplated by section 459.5. (J.L., supra, at p. 1114.)

The J.L. court noted that the commonsense meaning of the term commercial


                                              6
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 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,

subd. (h)(2)(b) [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 [quoting dictionary

definition of commerce, ' "[t]he buying and selling of goods, especially on a large scale," '

in interpreting statutory phrase 'commercial purpose'].)" (J.L., supra, at p. 1114.)

       Because "commercial" involves being engaged in commerce, including financial

transactions, we conclude that the term "commercial establishment" includes a bank. The

People attempt to narrow the term "commercial establishment" to businesses where items

are offered for sale. We acknowledge that a common understanding of the word


                                              7
"commercial" encompasses the buying and selling of merchandise in a retail

establishment. However, nothing in the text of the Act supports this narrow

interpretation and we reject it.

       Even assuming the term "commercial establishment" is ambiguous, we must

effectuate the intent of the voters who passed the initiative measure. (People v. Briceno

(2004) 34 Cal.4th 451, 459.) Additionally, we must read a statute " 'with reference to the

entire scheme of law of which it is part so that the whole may be harmonized and retain

effectiveness.' " (People v. Pieters (1991) 52 Cal.3d 894, 899.) The "Findings and

Declarations" state that the Act requires "misdemeanors instead of felonies for

nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified

violent or serious crimes." (Historical and Statutory Notes, 32A Pt. 3 West's Ann. Gov.

Code (2016 supp.) foll. § 7599, p. 163, § 3, subd. (3).) The Act directs that it is to be

broadly and liberally construed to achieve its stated purpose of requiring misdemeanors

instead of felonies for nonserious, nonviolent crimes. (Id. at p. 163, §§ 3, subd. (3), 15;

p. 164, § 18.) Here, entering a bank and attempting to cash a forged check is precisely

the type of nonviolent crime encompassed by the Act.

                                        B. Larceny

       To constitute shoplifting the entry must be into a commercial establishment "with

the intent to commit larceny." (§ 459.5.) Hudson contends the conduct for which he

sustained his second degree burglary conviction falls within the scope of "larceny" as

encompassed by section 459.5. The People do not address this argument in their

respondent's brief.


                                              8
         The California Supreme Court will ultimately resolve the question as it is currently

reviewing whether a defendant convicted of second degree burglary for entering a bank

to cash forged checks is entitled to resentencing under section 1170.18 on the ground the

offense meets the definition of shoplifting under section 459.5. (People v. Gonzales

(2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171 [entry into a bank to

cash a forged check was not larceny within the meaning of section 459.5]; People v.

Vargas (2016) 243 Cal.App.4th 1416, review granted March 30, 2016, S232673 [entry

into check cashing establishment with intent to commit theft by false pretenses by

cashing a forged check was an intent to commit "larceny"].) Until our high court resolves

this issue, we follow the view that entering a bank with intent to commit theft by false

pretenses by cashing a forged check meets the definition of shoplifting under section

459.5.

                                   C. Remaining Elements

         As we discussed, a bank is a commercial establishment and Hudson's actions

qualified as larceny. (Pt. II.A & B, ante.) To be eligible for resentencing, however, the

entry into the establishment must have been during regular business hours and the value

of the property taken or intended to be taken must not have exceeded $950. (§ 459.5,

subd. (a).) The parties do not address whether Hudson entered the bank during its normal

business hours. Regarding the value of the property he intended to take, Hudson asserts

the trial court erred when it found that he intended to take more than $950 because the

trial court came to this conclusion by looking at information in the postconviction probation

report and thus outside the record of conviction. He contends the record of conviction did


                                              9
not disclose sufficient facts establishing the nature of the offense or the value of the

property; thus, the trial court was required to presume that the conviction was for the

"least offense punishable" which, here, would be misdemeanor shoplifting.

       Section 1170.18 is silent as to which party has the burden of establishing

eligibility for resentencing. It is well established, however, that a party seeking relief

typically carries the burden of proof as to each fact necessary to the party's claim for

relief, unless a different burden is specifically assigned by law. (Evid. Code, § 500.)

Accordingly, the defendant bears the burden of demonstrating eligibility for relief under

the Act. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow); People v. Rivas-

Colon (2015) 241 Cal.App.4th 444, 448-449.)

       Here, the record shows that Hudson pled guilty to second degree commercial

burglary. His guilty plea "constitutes an admission of every element of the offense

charged and constitutes a conclusive admission of guilt" and "obviate[d] the need for the

prosecution to come forward with any evidence." (People v. Turner (1985) 171

Cal.App.3d 116, 125.) Thus, the record of conviction establishes Hudson was guilty of

second degree burglary.

       In Sherow, we held that the petitioner has the burden of presenting evidence

showing eligibility for resentencing under the Act. (Sherow, supra, 239 Cal.App.4th at

p. 880.) Hudson presented no evidence below that he entered the bank during its regular

business hours; thus, he failed to meet his initial burden of showing eligibility for

resentencing. (§ 459.5, subd. (a).) Hudson similarly failed to carry his burden of

showing the value of the property he intended to take did not exceed $950. (Ibid.) On


                                              10
both elements, Hudson could have presented new evidence to establish eligibility for

resentencing. (Sherow, supra, at pp. 879-880.)

       Hudson asserts Sherow, supra, 239 Cal.App.4th 875 was wrongly decided as it

suggests that the trial court is empowered to look beyond the record of conviction in

determining whether a petitioner's offense qualifies for relief under the Act. To the

extent Hudson contends a petitioner under the Act is limited to the record of conviction

to prove sentencing eligibility this argument works against him in situations where, as

here, the record is silent. (People v. Perkins (2016) 244 Cal.App.4th 129, 140, fn. 5 [in

many cases, "the value of the property was not important at the time of conviction, so the

record may not contain sufficient evidence to determine its value"; petitioners may seek

to meet their burden on this issue by "submit[ting] extra-record evidence probative of the

value when they file their petitions for resentencing"].) Sherow does not address a

situation where the People went outside the record of conviction to prove resentencing

eligibility. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 ["[I]t is axiomatic that cases

are not authority for propositions not considered."].)

       Finally, contrary to Hudson's assertion, on this silent record we cannot presume

that his conviction was for the "least offense punishable" which, here, would be a

misdemeanor shoplifting. For this proposition, Hudson relies on People v. Williams

(1990) 222 Cal.App.3d 911 (Williams). Williams held that "[i]n determining the nature

of a prior conviction allegation, the 'court may look to the entire record of the

conviction . . . but when the record does not disclose any of the facts of the offense




                                             11
actually committed, the court will presume that the prior conviction was for the least

offense punishable . . . .' [Citation.]" (Id. at p. 915.)

       Williams is inapposite because it concerned the use of multiple hearsay statements

in a probation report in the context of determining beyond a reasonable doubt whether a

prior conviction allegation was true for sentence enhancement purposes under the Three

Strikes law. (Williams, supra, 222 Cal.App.3d at pp. 917-918.) In this situation, the

prosecution has the burden of establishing enhancements apply. (People v. Towers

(2007) 150 Cal.App.4th 1273, 1277 ["The prosecution bears the burden of proving

beyond a reasonable doubt that a defendant's prior convictions were for either serious or

violent felonies."].) On a silent record, the prosecution cannot meet its burden to show

the nature of the prior offense triggered a sentence enhancement. Here, the issue before

the trial court was not a sentence enhancement that required the People to present proof

beyond a reasonable doubt.

       Based on these conclusions, we need not, and therefore do not, address Hudson's

argument that the trial court erred by relying on evidence outside the record of conviction

presented by the People.

                                               III

                                  FORGERY CONVICTION

       "Every person who possesses any completed check, money order, traveler's check,

warrant, or county order, whether real or fictitious, with the intent to utter or pass or

facilitate the utterance or passage of the same, in order to defraud any person, is guilty of

forgery." (§ 475, subd. (c).) Under the Act, "any person who is guilty of forgery relating


                                               12
to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where

the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money

order does not exceed nine hundred fifty dollars ($950)," is guilty of a misdemeanor,

subject to exceptions not relevant here. (§ 473, subd. (b).)

         Hudson asserts nothing in the record of conviction supported a finding that the

value of the check underlying his forgery conviction exceeded $950. In any event, he

contends the legislative intent behind the Act as well as settled law establishes that a

forged instrument has only intrinsic value, such that the term "value" as used in section

473 must be interpreted to mean the value of the forgery and not the amount written on

the face of the forged instrument.

         Again, Hudson failed to carry his burden of showing that the value of the check

did not exceed $950. (Sherow, supra, 239 Cal.App.4th at p. 879.) Thus, we do not

address his remaining argument that the term "value" as used in section 473 must be

construed to mean the value of the forgery and not the amount written on the face of the

check.




                                              13
                                     DISPOSITION

       The order denying Hudson's petition for recall of his felony prison sentences and

for resentencing is affirmed.



                                                                           HUFFMAN, J.

WE CONCUR:



BENKE, Acting P. J.



HALLER, J.




                                           14
