Filed 5/24/16

                            CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                  E062858

v.                                                 (Super.Ct.No. SWF10000490)

MICHAEL LEE SMITH,                                 OPINION

        Defendant and Appellant.




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

Reversed with directions.

        James M. Crawford, 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, Charles C. Ragland, and Marvin

E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.




                                            1
       Defendant Michael Lee Smith appeals from the summary denial of his Proposition

47 resentencing petition. (Pen. Code, § 1170.18.) Using Riverside County Superior

Court’s standard petitioning form, Smith sought to have two felony second degree

commercial burglary (§ 459)1 convictions (counts 1, 2) designated as misdemeanor

shoplifting (§ 459.5) because “[t]he value of the check or property does not exceed

$950.00.” The People responded, also using the standard form, by checking the box

conceding Smith “is entitled to resentencing” and requesting a hearing to determine “[r]e-

sentencing on Ct 2.” The People did not contest the value of the loss in count 1, but did

check the box requesting a hearing because the “People do not believe count one is

eligible as [the victim] is not a commercial establishment,” which is a required element of

shoplifting under new section 459.5. The superior court agreed the victim in count 1 was

not a commercial establishment and denied relief, and also summarily denied Smith’s

petition as to count 2 without explanation.

       Smith argues the victim check exchange business is a commercial establishment

and there is otherwise insufficient evidence to support the court’s denial of his petition as

to counts 1 and 2. We agree. The People urge us to affirm the ruling on the alternative

ground that Smith failed to meet his prima facie burden of showing he was entitled to

relief, however, the People conceded that issue in their response. Because we conclude

Smith is otherwise eligible for relief, we reverse the superior court’s ruling with



       1   Unlabeled statutory citations refer to the Penal Code.

                                              2
directions to either summarily grant his petition or hold an evidentiary hearing to resolve

any material factual issues revealed by the superior court’s review of the record of

conviction.

                                              I

                              FACTUAL BACKGROUND

       The Riverside County District Attorney charged Smith with one felony count of

burglary of a Check Exchange located in Hemet, California (§ 459, count 1), one felony

count of burglary of a Staples located in Hemet, California (§ 459, count 2), and one

felony count of making, passing, uttering, publishing, or possessing counterfeit bills

(§ 476, count 3). The information also alleged Smith had six prison priors (§ 667.5,

subd. (b)) and three strike priors (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).

       In the first burglary count, the prosecution accused “MICHAEL LEE SMITH of a

violation of Penal Code section 459, a felony, in that on or about March 8, 2010, in the

County of Riverside, State of California, [he] did willfully and unlawfully enter a certain

building located at CHECK EXCHANGE, 1015 W. FLORIDA AVE., HEMET, with

intent to commit theft and a felony.”

       In the second burglary count, the prosecution accused “MICHAEL LEE SMITH

of a violation of Penal Code section 459, a felony, in that on or about March 8, 2010, in

the County of Riverside, State of California, [he] did willfully and unlawfully enter a

certain building located at STAPLES, 3381 W. FLORIDA AVE., HEMET, with intent to

commit theft and a felony.”


                                              3
       In the counterfeiting count, the prosecution accused “MICHAEL LEE SMITH of a

violation of Penal Code section 476, a felony, in that on or about March 8, 2010, in the

County of Riverside, State of California, [he] did willfully and unlawfully make, pass,

utter, publish, or possess, with intent to defraud any other person, a COUNTERFEIT

BILLS [sic].”

       On January 12, 2011, Smith pled guilty to all three counts, six prison priors, and

one strike prior. On February 4, 2011, the trial court sentenced Smith to an aggregate

term of 13 years 4 months in state prison, including six years for the burglary of the

Check Exchange, one year four months for the counterfeiting offense, and a one-year

enhancement for each of the six prison priors. The trial court stayed the sentence for the

burglary of the Staples under section 654.

       On November 4, 2014, the voters of California passed Proposition 47, reducing

some felony theft- and forgery-related offenses to misdemeanors when the value of the

stolen property does not exceed $950. (E.g., §§ 459.5, subd. (a) [redefining some theft as

shoplifting], 490.2, subd. (a) [changing punishment for some theft offenses], 473,

subd. (b) [changing punishment for some forgery and counterfeiting offenses].) The

initiative also created a resentencing procedure allowing offenders to petition for

resentencing if they are “currently serving a sentence for a conviction” for committing a

felony and “would have been guilty of a misdemeanor under” the provisions added by

Proposition 47. (§ 1170.18, subd. (a).)




                                             4
       On November 19, 2014, Smith submitted a form petition asking the superior court

to resentence him on all three counts under section 1170.18, subdivision (a).2 Smith

affirmed the value of the stolen property did not exceed $950. However, he did not

attach evidence, a declaration, or include citations to the record of conviction to support

the assertion.

       On November 26, 2014, the prosecution submitted a form response indicating

Smith had “filed a ‘Petition for Resentencing’ on felony count(s) 1, 2, 3 . . . violation of

459 PC (2ND), 459 PC (2nd), 476 PC pursuant to Penal Code § 1170.18.” The

prosecution marked the box indicating “[d]efendant is still serving his/her sentence and is

entitled to resentencing,” not the box indicating “[d]efendant is not entitled to the relief

requested.” However, the prosecution requested a hearing in connection with the

conviction for burglary of the Check Exchange, stating the “People do not believe count

one is eligible as [Check Exchange] is not a commercial establishment.” The

prosecution’s response also indicated the hearing should be set to determine “[r]e-

sentencing on Ct 2.”




       2   Smith mistakenly checked the box for “Penal Code § 476a Writing Bad Checks”
instead of the box for section 473, which is the provision setting out punishment for
Smith’s conviction for violating section 476. The superior court’s form did not include
section 476 as an option. The prosecution and the superior court correctly disregarded
the error.

                                              5
       On January 2, 2015, the superior court entered an order denying Smith’s petition.

The order indicates the superior court did not hold a hearing on his petition. The order

states only that Smith has “476 – counterfeit bills – not qualifying felony; 459-2 –

presenting counterfeit bills at ‘check exchange.’”3 The superior court did not mention the

conviction for committing the burglary of Staples. The minute order provides no

additional explanation of the superior court’s ruling.

                                             II

                                      DISCUSSION

       A.     Legal Background

       On November 4, 2014, the voters of California enacted “The Safe Neighborhoods

and Schools Act” (hereinafter Proposition 47), which became effective the next day.

(Cal. Const., art. II, § 10, subd. (a).) Proposition 47 changed portions of the Penal Code

to reduce certain theft-related offenses from felonies or wobblers to misdemeanors,

unless the offenses were committed by certain ineligible offenders. (People v. Rivera

(2015) 233 Cal.App.4th 1085, 1091.) Proposition 47 directs the “act shall be broadly

construed to accomplish its purposes.” (Cal. Voter Information Pamp., Gen. Elec. (Nov.

4, 2014) text of Prop. 47, p. 74, § 15, at <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/

complete-vigr1.pdf> [as of May 19, 2016].)




       3 Smith did not appeal the denial of resentencing on his conviction for making,
passing, or possessing counterfeit bills.

                                             6
         The interpretation of a statute is subject to de novo review on appeal. (Kavanaugh

v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) “In

interpreting a voter initiative like [Proposition 47], [the courts] apply the same principles

that govern statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) “‘The

fundamental purpose of statutory construction is to ascertain the intent of the lawmakers

so as to effectuate the purpose of the law. [Citations.]’” (Horwich v. Superior Court

(1999) 21 Cal.4th 272, 276.) “In 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.]” (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-

1008.)

         B.    Petition for Resentencing on Burglary of the Check Exchange

         Smith contends the superior court erred by determining he was not entitled to

resentencing on his conviction for burglarizing the Check Exchange under new section

459.5 on the ground that the Check Exchange is not a commercial establishment. We

agree.

         Proposition 47 added section 459.5 to the Penal Code. The new section provides:

“(a) Notwithstanding Section 459 [burglary], shoplifting is defined as entering a


                                              7
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.” Except in the cases

of offenders with specified serious prior convictions, section 459.5 directs “[s]hoplifting

shall be punished as a misdemeanor.” (§ 459.5, subd. (a), italics added.) Subdivision (b)

further directs “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as

shoplifting” and that “[n]o person who is charged with shoplifting may also be charged

with burglary or theft of the same property.” (§ 459.5, subd. (b), italics added.) The

Legislative Analyst for Proposition 47 explained: “Under 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.” (Cal. Voter Information Pamp., Gen. Elec., supra, analysis of

Prop. 47 by Leg. Analyst, p. 35.)

       Under section 459.5, subdivision (a), Smith would be entitled to resentencing for

misdemeanor shoplifting if (1) Check Exchange is a commercial establishment, (2) Smith

entered Check Exchange with the intent to commit larceny,4 and (3) the stolen property

or counterfeit bills passed did not exceed $950 in value. The superior court held Smith


       4 Entry must be “while th[e] establishment is open during regular business hours,”
(§ 459.5, subd. (a)), but that fact is not in question.

                                             8
was not eligible because the conviction was for “presenting counterfeit bills at ‘check

exchange.’” The People contend the superior court’s “actual reason” for denying the

petition “cannot be determined” from this statement. We agree the order is less than

clear. However, in the context of the prosecution’s objection that Smith was not eligible

for resentencing as a legal matter because Check Exchange is not a commercial

establishment, we understand the superior court to have ruled on that basis. That

conclusion was erroneous.

       The People do not defend the position that a check cashing business is not a

commercial establishment on appeal. However, we address the issue because it was the

basis of the superior court’s ruling and the law on the issue is unsettled. Neither

Proposition 47 nor the Penal Code defines “commercial establishment.” We therefore

understand it to have the meaning it bears in ordinary usage. (See Title Ins. & Trust Co.

v. County of Riverside (1989) 48 Cal.3d 84, 91.) If the language is unambiguous on its

face, we interpret it accordingly. If the language is ambiguous, we may consult ballot

summaries and other extrinsic materials to aid us in determining the voters’ intent.

(People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)

       “When attempting to ascertain the ordinary, usual meaning of a word, courts

appropriately refer to the dictionary definition of that word.” (Wasatch Property

Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122.) Black’s Law Dictionary

defines “establishment” as “[a]n institution or place of business.” (Black’s Law Dict.

(7th ed. 1999) p. 566, col. 2.) It defines “commerce” to mean: “The exchange of goods


                                             9
and services.” (Id. at p. 263, col. 1, italics added.) Other sources are in accord.

(Merriam-Webster.com [defining “commerce” as “activities that relate to the buying and

selling of goods and services”]; BusinessDictionary.com [defining “commerce” as the

“[e]xchange of goods or services for money or in kind”].) Thus, we interpret the term

“commercial establishment” as it appears in section 459.5, subdivision (a) to mean a

place of business established for the purpose of exchanging goods or services.

       A check cashing business clearly satisfies this definition. A person in possession

of a check made out in his or her name can endorse the check to the check cashing

business and receive the proceeds in cash, less a commission paid to the check cashing

business. The check cashing business then redeems the check from the issuing bank for

the full amount of the check. (See Grasso v. Crow (1997) 57 Cal.App.4th 847, 849

[describing a transaction at a check cashing business].) The Court of Appeal has noted in

another context that “the role of check cashing companies in the general American

economy has grown tremendously over the past 20 or so years. They facilitate financial

services for large numbers of people who are not now connected to traditional banking

institutions.” (HH Computer Systems, Inc. v. Pacific City Bank (2014) 231 Cal.App.4th

221, 230-231.) Thus, a business like Check Exchange provides financial services in

exchange for fees, and is therefore a commercial establishment within the ordinary

meaning of that term. We conclude, therefore, that the superior court erred in denying

Smith’s petition for resentencing on the basis that a Check Exchange store is not a

commercial establishment under section 459.5, subdivision (a).


                                             10
       We are aware it is possible to take a narrower view of the ordinary meaning of

“commercial establishment.” Specifically, some definitions of “commerce” and

“commercial” limit it to “the buying and selling of goods.” (E.g., American Heritage

Dict. (New College ed. 1976) p. 267, italics added.) Under that definition, check cashing

businesses would not be commercial establishments because they offer services, not

goods or merchandise. At best, this alternative definition creates an ambiguity in the

statute. However, as the initiative directs, we construe the act “broadly . . . to accomplish

its purposes.” (Cal. Voter Information Pamp., Gen. Elec., supra, text of Prop. 47, p. 74,

§ 15; see also id. at p. 74, § 18 [act shall be “liberally construed to effectuate its

purposes”].) Section 3 of the initiative specifies it was the “purpose and intent of the

people of the State of California to:” “[r]equire misdemeanors instead of felonies for

nonserious, nonviolent crimes like petty theft and drug possession,” and “[a]uthorize

consideration of resentencing for anyone who is currently serving a sentence for any of

the offenses listed herein that are now misdemeanors.” (Id. at p. 70, § 3, subds. (3) &

(4).) Adopting the limited definition of “commercial establishment” will frustrate those

purposes and result in the continued incarceration of persons who committed petty theft

crimes. Accordingly, we construe section 459.5, subdivision (a) broadly to include as

shoplifting thefts from commercial ventures, such as check cashing stores, which sell

services as well as goods and merchandise.




                                               11
       The People contend that “even assuming . . . Check Exchange is a commercial

establishment, the trial court properly denied the petition because appellant failed to show

that he committed larceny, meaning a trespassory taking.” However, section 490a

provides that “any law or statute . . . [that] refers to or mentions larceny . . . shall

hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.” Section

459.5, subdivision (a), defines shoplifting as “entering a commercial establishment with

intent to commit larceny.” Thus, entering a commercial establishment with intent to

commit theft is shoplifting. The prosecution charged Smith with entering Check

Exchange “with intent to commit theft and a felony” and Smith pled guilty to that charge.

The People do not contend there was any predicate for Smith’s burglary conviction other

than the theft crime. It follows that Smith need do no more to establish he entered the

Check Exchange with the intent to commit larceny.

       We conclude that larceny as the term appears in section 459.5, subdivision (a)

includes theft by false pretenses and does not require a trespassory taking. Our Supreme

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.) Voters adopted the phrase “intent to commit larceny” in section 459.5,

which mirrors the intent element in the general burglary statute. (§ 459.) Because the

voters intended section 459.5 to include theft by false pretenses, entering a check cashing




                                               12
establishment and passing counterfeit bills or notes qualifies as shoplifting under section

459.5.5

       The People contend we should affirm on the alternative ground that Smith did not

meet his burden of proving that “what he took had a value of $950 or less.” “‘[W]e may

affirm a trial court judgment on any [correct] basis presented by the record whether or not

relied upon by the trial court. [Citation.]’ [Citation.]” (ASP Properties Group, L.P. v.

Fard, Inc. (2005) 133 Cal.App.4th 1257, 1268.) Had the People contested Smith’s

assertion that the value of the loss did not exceed $950 in their response, we could affirm

on this basis. (People v. Perkins (2016) 244 Cal.App.4th 129, 140 (Perkins).) This is

because merely affirming that the value of the theft did not exceed $950 is nothing more

than a conclusory allegation made without any explanation for its basis and does not meet

the petitioner’s burden to establish a prima facie case for eligibility. (Ibid.; see also

People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall) [in analogous setting of pleading in

habeas context].) The People did not contest Smith’s allegation about the value of the

loss, however; they conceded it.

       In the context of a petition for habeas corpus, where the People’s response to a

petition admits or effectively concedes facts supporting a petitioner’s entitlement to relief


       5 Some courts have reached the contrary conclusion that shoplifting under section
459.5 requires a taking without the property owner’s consent on the basis of the
discussion of robbery (§ 211) in People v. Williams (2013) 57 Cal.4th 776. (E.g., People
v. Gonzales (2015) 242 Cal.App.4th 35 (review granted Feb. 17, 2016, S231171).) We
conclude that neither Williams nor section 211, which does not contain the term
“larceny,” governs the meaning of that term in the new shoplifting statute.

                                              13
by failing to contest them, the court may consider those facts as no longer at issue and

can grant relief without an evidentiary hearing. (In re Sixto (1989) 259 Cal.3d 1247,

1252 [When the People’s response “effectively admits the material factual allegations of

the petition and traverse by not disputing them, we may resolve the issue without ordering

an evidentiary hearing”], italics added.) In the face of such a concession or “narrowing”

of issues, a superior court is authorized, but not required, to summarily grant a petition.

(Duvall, supra, 9 Cal.4th at p. 477.) Smith alleged in his petition that the amount of loss

did not exceed $950. By signing and filing a response that did not contest that allegation,

the district attorney conceded the factual issue of the amount of loss and conveyed to the

superior court that there were no disputed material facts related to the value of the

property.

       The procedure of treating the petition and response as defining and narrowing the

issues “provide[s] a framework in which a court can discover the truth and do justice in

timely fashion.” (Duvall, supra, 9 Cal.4th at p. 477.) We hold the same principles

govern petitions for relief under section 1170.18, and therefore conclude Smith’s petition

and the People’s response, taken together, demonstrate Smith has met his prima facie

burden. Moreover, the People are bound by their concession. (See People v. Mendez

(1991) 234 Cal.App.3d 1773, 1783 [stating the general rule that “[t]he People are

ordinarily bound by their stipulations, concessions or representations”].) Thus, when a

petitioner alleges he is entitled to resentencing because his offense involves an amount of




                                             14
loss less than $950 and the People do not contest that allegation, the People cannot argue

on appeal that the petitioner has not met his prima facie burden.

       Unlike the People, the superior court is not bound by the People’s representation

that a petitioner is entitled to resentencing. (See People v. Alvarado (1982) 133

Cal.App.3d 1003, 1021 [appellate court is not bound by the People’s concession that

reversible error occurred at trial].) Where the People concede a factual issue related to

eligibility, the superior court may, as the fact finder, make rulings based on evidence in

the record and hold hearings to resolve factual disputes or otherwise discover facts. As a

result, the proper remedy in this case is to reverse the order denying relief and remand for

the superior court to exercise its discretion whether to accept the people’s concession or

determine whether the record of conviction warrants holding a hearing on the value of the

theft despite the parties’ agreement on that issue. (See § 1170.18, subd. (b) [“Upon

receiving a petition under subdivision (a), the court shall determine whether the petitioner

satisfies the criteria in subdivision (a)”]; People v. Contreras (2015) 237 Cal.App.4th

868, 892 [whether “the value of the property defendant stole disqualifies him from

resentencing under sections 459.5 and 1170.18 . . . is a factual finding that must be made

by the trial court in the first instance”].)

       If on remand the superior court finds there is a material factual issue regarding the

amount of loss, the court may hold an evidentiary hearing to resolve that issue. If the

superior court determines a hearing is necessary, it shall permit Smith to supplement the

record by submitting evidence related to the value of any stolen property or counterfeit


                                               15
bills connected with his conviction. Such evidence may include his own testimony,

“court documents, record citations, or other probative evidence showing he is eligible for

relief.” (Perkins, supra, 244 Cal.App.4th at p. 140.)

       C.     Petition for Resentencing on the Burglary of Staples

       Smith contends the superior court erred in denying his petition for resentencing on

his conviction for the burglary of Staples (count 2). It is unclear on the record before us

whether the superior court even considered Smith’s eligibility for resentencing on that

conviction. The superior court did not mention count 2 in its order, and the minute order

indicates simply that the superior court denied the entire petition without differentiating

the three convictions. However, the prosecution conceded Smith was eligible on count 2.

Its response to the petition indicated Smith “is entitled to resentencing” and requested a

hearing to determine “[r]e-sentencing on Ct. 2.”

       The People ask that we affirm the superior court order on the ground Smith did not

carry his burden of proving the theft was valued at less than $950. However, as we

discussed above, the prosecution’s concession of Smith’s eligibility forecloses that

possibility. The concession is binding on the People. (People v. Mendez, supra, 234

Cal.App.3d at p. 1783) Indeed, the concession is stronger as to count 2 because it was

explicit. Smith’s petition alleges “[t]he value of the check or property does not exceed

$950.00.” In its response to Smith’s petition for resentencing, the prosecution conceded

Smith “is entitled to resentencing” and requested a resentencing hearing. These

representations conveyed to the superior court that there were no disputed material facts.


                                             16
As a result, the superior court was entitled to consider those facts as no longer at issue

and grant relief without an evidentiary hearing. (Duvall, supra, 9 Cal.4th at p. 477.)

However, in the face of those representations, the superior court was not entitled to

summarily dismiss the petition on the ground that Smith’s pleading was insufficient.

       Thus, we hold the record on appeal does not support affirming the superior court

on the ground that Smith failed to carry his burden of proof as to the value of the stolen

property. As a result, and in combination with our conclusion that Smith’s conviction for

burglarizing Staples is a qualifying conviction, and would constitute shoplifting under

new section 459.5, subdivision (a), provided the value of the stolen property did not

exceed $950, we reverse the denial of Smith’s petition for resentencing on count 2, and

remand for further proceedings.

       On remand, the superior court may accept the concession and resentence Smith or,

if the record of conviction shows there is a material factual issue about the amount of loss

(or some other factual issue, like whether Staples was open for business at the time of the

offense), may set a hearing and permit Smith to supplement the record with evidence

related to the value of the loss.6


       6 The superior court also denied Smith’s petition for resentencing on his section
476 conviction (count 3) on the ground passing a counterfeit bill is not a qualifying
felony. Smith has not appealed that decision, so we do not reach it. However, we note
Proposition 47 amended section 473, under which Smith was sentenced for violating
section 476, to provide “any person who is guilty of forgery relating to a . . . bank bill,
[or] note . . . where the value of the . . . bank bill, [or] note . . . does not exceed nine
hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not
more than one year.” (Italics added.) Since the superior court refused Smith’s request
                                                                  [footnote continued on next page]

                                             17
                                              III

                                          DISPOSITION

        We reverse the order denying Smith’s petition for resentencing on counts 1 and 2

and remand for further proceedings consistent with this opinion. On remand, the court

may grant the petition based on the People’s concessions or it may hold a hearing to

resolve any material factual issues affecting his eligibility.

        CERTIFIED FOR PUBLICATION


                                                                 SLOUGH
                                                                                           J.
We concur:


HOLLENHORST
          Acting P. J.


MILLER
                                J.




[footnote continued from previous page]
[footnote continued from previous page]
[footnote continued from previous page]
for resentencing, the Third Appellate District has concluded passing a counterfeit bill is a
qualifying conviction. (People v. Valencia (2016) 245 Cal.App.4th 730, 734.)

                                              18
