People v. Smith

Filed 7/8/16; opinion on rehearing

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.

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 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). As part of his petition, Smith declared as to both counts that “[t]he

value of the check or property does not exceed $950.00.” The People responded by

representing Smith “is entitled to resentencing” on count 2 and requesting a hearing to

determine the new sentence. The People did not contest the value of the loss in count 1,

but did request a hearing to determine eligibility because the “People do not believe count

one is eligible as” the victim check exchange business “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.

1 Unlabeled statutory citations refer to the Penal Code.

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 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.”

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,

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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).)

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 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’s

petition took the form of a declaration, signed under penalty of perjury. In the petition,

Smith declared as to both counts that the value of the stolen property did not exceed

$950. However, he did not attach additional evidence.

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.”

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

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.

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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 [as of July 1, 2016].)

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

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 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

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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.

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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

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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).

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 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.

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 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

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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 prima facie burden that “what he took had a value of $950 or less.” We decline

to affirm on that basis. It is true “‘we 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.) However, Smith filed a signed petition in which he declared, under penalty of

perjury, that the value of the checks he was convicted of passing did not exceed $950. At

the initial pleading stage, declarations may stand in for the testimony a petitioner would

give at a hearing. (See People v. Sherow (2015) 239 Cal.App.4th 875, 880 [proper

petition could contain at least declaration from defendant attesting to value of stolen

property]; People v. Perkins (2016) 244 Cal.App.4th 129, 140 [same].) Moreover, the

People did not contest Smith’s assertion in their responsive pleading in the superior court.

Under those circumstances, Smith’s declaration and the People’s representation regarding

the amount element, the record does not support affirming the order on the basis that

Smith failed to carry his prima facie burden.

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.

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 Of course, even where the parties agree on 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 determine whether Smith satisfies the conditions for eligibility,

including by holding a hearing to hear additional evidence related to the value of the

stolen property. (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”].)

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). 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, Smith declared, under penalty of perjury, that “[t]he

value of the check or property does not exceed $950.00,” and in its response to Smith’s

petition for resentencing, the prosecution represented Smith “is entitled to resentencing”

and requested a resentencing hearing. Thus, the record on appeal does not support

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affirming the superior court on the ground that Smith failed to carry his prima facie

burden of proof as to the value of the stolen property. Accordingly, we reverse the denial

of Smith’s petition for resentencing on count 2, and remand for the superior court to

determine whether Smith satisfies the conditions for eligibility.6

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.

CERTIFIED FOR PUBLICATION

SLOUGH
J.
We concur:

HOLLENHORST
Acting P. J.

MILLER

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
for resentencing, courts have concluded passing a counterfeit bill is a qualifying
conviction. (E.g., People v. Maynarich (June 15, 2016, B263341) ___ Cal.App.4th ___
[2016 WL 3346044 [*2]].)

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J.

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