Filed 4/27/16 P. v. Oviedo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Respondent, E063216
v. (Super.Ct.No. RIF1105870)
JESSE OVIEDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Cindy Brines, 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, and Marvin E. Mizell and
Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, Jesse Oviedo, filed a petition for resentencing pursuant
to Penal Code section 1170.18,1 which the court denied. On appeal, defendant contends
the court erred in denying his petition. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On June 29, 2012, the People charged defendant by information with six counts of
second degree burglary (§ 459, counts 1-4, 7, & 9), unlawfully obtaining personal
identifying information for the purpose of obtaining value (§ 530.5, count 5), and two
counts of signing the name of another person for the payment of money (§ 470, subd. (a),
counts 6 & 8). The People additionally alleged defendant had suffered a prior strike
conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
On December 19, 2013, defendant pled guilty to one count of second degree
burglary and admitted the prior strike conviction. In return, all remaining charges were
dismissed and the People agreed to a sentence consisting of the low term of 16 months,
doubled to 32 months pursuant to the prior strike conviction.
The court asked defendant if it was “true that on October 7th, 2011, in the County
of Riverside, you went into a place in Norco with the idea to commit a theft or some
felony inside; is that true?” Defendant answered, “Yes.” Defendant’s plea agreement
reflects that the factual basis for the plea consisted of defendant’s agreement that he “did
the things that are stated in the charges that I am admitting.” The minute order reflects
that the court found the “factual basis for the plea is based on [the] Oral Statement [of]
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
Defendant on the record.” On February 7, 2014, the court sentenced defendant to 32
months’ incarceration.
On November 18, 2014, defendant filed a petition for resentencing. On December
19, 2014, the People filed a response stating defendant was ineligible for resentencing
pursuant to section 1170.18 because his burglary was not of a commercial establishment.
On February 27, 2015, the People filed a formal opposition to defendant’s motion
in which they recounted the facts pertaining to the initial charges filed against defendant.
According to the People, defendant had entered the office of a temporary employment
agency on three separate occasions on three separate dates identifying himself as the
victim and requesting the victim’s paychecks in the amounts of $231.83, $178.86, and
$128.00, respectively. Thereafter, when the victim came to pick up his paychecks,
agency personnel discovered they had given the paychecks to the wrong person. On a
fourth date, defendant entered the agency’s office and requested another of the victim’s
paychecks, at which time agency personnel called the police and defendant was arrested.
The People argued that the temporary employment agency did not meet the
definition of a “commercial establishment” such that defendant would be entitled to
resentencing pursuant to section 1170.18 for a misdemeanor conviction under the newly-
created crime of shoplifting under section 459.5. On March 13, 2015, defendant filed a
formal reply in which he maintained that the temporary employment agency qualified as
a “commercial establishment” under the shoplifting statute such that defendant should be
resentenced to the misdemeanor offense.
3
At the hearing on the petition on March 13, 2015, the court stated: “[W]hen you
use the word ‘shoplifting,’ you get the vision of somebody going into Walmart and
stealing a, you know, box of Tide or whatever, but the question is how much farther than
the clear-cut case of going into a retail store and stealing something does the word
‘shoplifting’ reach. And one parameter is commercial establishment, which could well
include a bank. [¶] But this is another step. This is an employment agency where the
gentleman goes in and claims he’s somebody else and gets their check. So I’m ruling
that’s beyond even [an] expanded definition of commercial establishment, and, therefore,
the motion is denied.”
II. DISCUSSION
Defendant contends the court erred in declining to recharacterize, pursuant to
section 1170.18, defendant’s conviction for second degree burglary as a misdemeanor
conviction for shoplifting under section 459.5. Thus, defendant contends the court erred
in denying his motion for resentencing. We disagree.
“‘On November 4, 2014, the voters enacted Proposition 47, “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the
next day. [Citation.]’ [Citation.] ‘Proposition 47 makes certain drug- and theft-related
offenses misdemeanors, unless the offenses were committed by certain ineligible
defendants. These offenses had previously been designated as either felonies or wobblers
(crimes that can be punished as either felonies or misdemeanors).’ [Citation.] To this
4
end, Proposition 47 . . . added sections 459.5 . . . and 1170.18 to the Penal Code . . . .
[Citation.]” (People v. Contreras (2015) 237 Cal.App.4th 868, 889-890.)
“Section 459.5 defines the crime of ‘shoplifting.’ It provides, in relevant part:
‘(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 . . . [¶] (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.’” (People v. Contreras, supra,
237 Cal.App.4th at pp. 890-891.) Section 459.5 does not define “commercial
establishment.”
“‘Proposition 47 also created a new resentencing provision: section 1170.18.
Under section 1170.18, a person “currently serving” a felony sentence for an offense that
is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and
request resentencing in accordance with the statutes that were added or amended by
Proposition 47. [Citation.] 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
5
unreasonable risk of danger to public safety.” [Citation.]’ [Citation.]” (People v.
Contreras, supra, 237 Cal.App.4th at p. 891.)
“‘“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.]”’ [Citations.] ‘“The 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.”’ [Citation.] Our review is de novo. [Citation.]” (In re
J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.)
“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” (construing statutory
term)]; 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.”].)
6
In In re J.L., the minor argued that his conviction for felony burglary based on his
theft of a cell phone from a school locker should have been reduced to misdemeanor
shoplifting pursuant to section 1170.18. (In re J.L., supra, 242 Cal.App.4th at p. 1113.)
The court disagreed, holding that: “Whatever broader meaning ‘commercial
establishment’ as used in section 459.5 might bear on different facts, [the minor’s] theft
of a cell phone from a school locker room was not a theft from a commercial
establishment.” (Id. at p. 1114.) The court reasoned that: “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. [Citations.]”
(Ibid.) “We believe the voters enacting Proposition 47 understood the reference to
‘shoplifting’ in the voter information guide 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. [Citations.]” (Id. at
pp. 1114-1115.)
We agree with In re J.L. that the intent behind the enactment of the section 459.5
misdemeanor crime of shoplifting was to punish the purloining of goods from a retail
establishment. (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
7
buying and selling of merchandise, on a large scale”]; Black’s Law Dict. (10th ed. 2014)
p. 325, col. 2 [“commercial” means “[o]f, relating to, or involving the buying and selling
of goods; mercantile”]; People v. Cochran (2002) 28 Cal.4th 396, 404-405 [citing the
dictionary definition of commerce as “‘[t]he buying and selling of goods, especially on a
large scale,’” in interpreting the statutory phrase “‘commercial purpose’”]; People v.
Contreras, supra, 237 Cal.App.4th at p. 872 [defendant convicted of shoplifting under
§ 459.5 for stealing seven pairs of jeans from a “retail store”]; People v. Gonzales (1965)
235 Cal.App.2d Supp. 887, 892 [describing shoplifting as “the practice whereby
customers enter a turnstile, have free access to all the shelves displaying wares and
merchandise, and the proper payment for merchandise taken away from the store depends
upon the customer properly declaring it at the check-out or cashier’s stand.”] .)
Indeed, “shoplift” is a compound word that when deconstructed consists of the
words “shop” and “lift.” A “shop” is commonly interpreted as a retail establishment
involved in the sale of goods. To “lift” something is to steal it, either surreptitiously or
brazenly by taking the object and dashing outside the “shop.” (Black’s Law Dict., supra,
p. 1598, col. 1 [defining shoplifting as the “[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.”].)
8
Here, the temporary employment agency was not a commercial establishment for
purposes of the shoplifting statue because it was not engaged in the buying and selling of
goods. The court properly denied defendant’s petition for resentencing.
III. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
I concur:
RAMIREZ
P. J.
9
[People v. Ovieda, E063216]
MILLER, J., Dissenting.
I respectfully dissent. The trial court rejected defendant’s petition to recall
his sentence (Petition) based solely on its determination that a temporary
employment agency was not a commercial establishment. I disagree with the
majority’s determination upholding the trial court’s decision and conclude that a
temporary employment agency could properly be considered a commercial
establishment within the meaning of shoplifting, as that term is defined in
Proposition 47. I would remand to the trial court in order for the trial court to
review defendant’s plea and consider whether he should be resentenced to
misdemeanor shoplifting under Penal Code section 459.5.
Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal
Code 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.” Under Penal Code section 1170.18, subdivision (b), the trial court first
determines whether the petition has presented a prima facie case for relief under
1
Penal Code 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. (Pen. Code, § 1170.18, subd. (b).)
Section 459.5 was added to the Penal Code by Proposition 47 and provides,
“[n]otwithstanding [Penal Code s]ection 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).”
“Commercial establishment” was not defined.
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 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
2
selling of goods and services.” ( [as of Apr. 27, 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.” (
[as of Apr. 27, 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 37 Code of Federal Regulations part 258.2 (2014), 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[.]”
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 [Penal Code] 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
3
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
temporary employment agency is engaged in the buying and selling of services. I
note that in their respondent’s brief, the People made no argument to the contrary,
essentially conceding that a temporary employment agency is a commercial
establishment.
I disagree with the majority’s conclusion that a commercial establishment
must be engaged in the buying and selling of goods. The majority relies upon the
common understanding of the term “shop” and “lift.” However, the voters
approved Proposition 47, which provides a definition of shoplifting that is
different from the ordinary meaning. The term “commercial establishment” is
reasonably interpreted to include the buying and selling of goods and services. As
such, the trial court erred by determining that the temporary employment agency
was not a commercial establishment.
The majority does not address the People’s further argument that defendant
entered the employment agency with two intents: to commit a felony (identity
theft) and theft. The People insist that defendant’s entry with the intent to commit
identify theft constitutes a felony even after the enactment of Proposition 47.
4
Defendant has responded that when he entered his plea in open court, he pleaded
guilty to second degree burglary based on his entry with the intent to commit theft
or a felony. The nature of a plea is a factual question that must first be decided by
the trial court. (People v. Contreras (2015) 237 Cal.App.4th 868, 892 [“The trial
court’s decision on a [Penal Code] section 1170.18 petition is inherently factual,
requiring the trial court to determine whether the defendant meets the statutory
criteria for relief”].)
The trial court did not address whether defendant entered the employment
agency with the intent to commit larceny.
I would remand this matter in order for the trial court to review the plea and
record of conviction to determine if defendant is eligible for resentencing under
Proposition 47.
MILLER
J.
5