People v. Abarca ( 2016 )

Filed 8/12/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant, E063687
v. (Super.Ct.No. RIF1303009)
WILLIE ABARCA, JR., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District
Attorney for Plaintiff and Appellant.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and
Respondent.
1
The People appeal from the superior court’s order granting defendant Willie
Abarca Jr.’s Proposition 47 resentencing petition. (Pen. Code, § 1170.18.)
Abarca pled guilty to one felony count of second degree burglary (§ 459)1 based
on his attempt to pass a forged check for $300 at a bank. After the electorate passed
Proposition 47, Abarca sought to have his felony conviction redesignated as the newly
created misdemeanor of shoplifting—entering an open commercial establishment with
intent to commit larceny of $950 or less. (§ 459.5, subd. (a).) Abarca’s petition says “the
value of the check . . . does not exceed $950.00.” The People responded by contending
Abarca’s offense does not constitute shoplifting because banks are not commercial
establishments. The superior court concluded banks are commercial establishments,
granted Abarca’s petition, and resentenced him.
The People advance three grounds for reversing the superior court order granting
the petition. First, the People contend the superior court erred in reaching the merits
because Abarca did not carry his initial burden by attaching evidence to his petition.
Second, the People contend the superior court erred in determining a bank is a
commercial establishment. Third, they contend the superior court erred because Abarca’s
underlying conduct could have been punished as felony burglary even after Proposition
47, because Abarca’s act of passing a forged check constituted identity theft. We
disagree with each asserted error and therefore affirm.
1 Unlabeled statutory citations refer to the Penal Code.
2
I
FACTUAL BACKGROUND
According to a declaration supporting an arrest warrant for Abarca, on July 10,
2013, “Willie Abarca walked into the U.S. Bank [at 12612 Limonite Avenue] and
attempted to cash a check (#557) from Newport Coach Works Inc. in the amount of
$300.00.” Abarca left the bank without obtaining cash while a bank employee was
checking the signature against bank records. The investigating deputy sheriff “contacted
the account owner[,] Carter Read,” who reported “he does not know Abarca, never gave
Abarca a check . . . and did not give permission for any of his employees to give Abarca a
check.”
The Riverside County District Attorney charged Abarca with one felony count of
burglary (§ 459; count 1) and one felony count of forgery (§ 475, subd. (c); count 2). The
information also alleged Abarca had five prison priors within the meaning of 667.5,
subdivision (b).
In the burglary count, the prosecution accused Abarca of committing “a violation
of Penal Code section 459, a felony, in that on or about July 10, 2013, in the County of
Riverside, State of California, he did wilfully and unlawfully enter a certain building
located at 12612 LIMONITE AVE, EASTVALE, CA, with intent to commit theft and a
felony.”
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In the forgery count, the prosecution accused Abarca of committing “a violation of
Penal Code section 475, subdivision (c), a felony, in that on or about July 10, 2013, in the
County of Riverside, State of California, he did wilfully and unlawfully possess a
completed check, money order, traveler’s check, warrant, and county order, with the
intent to utter and pass and facilitate the utterance and passage of the same, in order to
defraud READ C.”
On November 18, 2013, Abarca pled guilty to the commercial burglary count and
admitted two prison priors. At the plea hearing, the superior court asked Abarca, “[I]s it
true on July 10th, 2013 in Riverside County, you went into a building with the intent to
commit a felony?” Abarca replied, “Yes.” The superior court found “a factual basis for
the plea and . . . accept[ed] the plea.”
On December 9, 2013, in accordance with the plea agreement, the superior court
dismissed the forgery count and struck the remaining three prison prior allegations. The
superior court sentenced Abarca to an upper term of three years in county jail on the
burglary count and consecutive one-year enhancements for each of the two prison priors.
The court suspended execution of the final two years of the sentence and ordered two
years of mandatory supervision.
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) [redefining some grand theft as petty theft], 473, subd. (b)
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[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).)
On December 10, 2014, Abarca submitted a petition asking the superior court to
recall his commercial burglary conviction and resentence him under section 1170.18,
subdivision (a). The petition declares “the value of the check or property does not exceed
$950.”
On March 11, 2015, the prosecution submitted a response stating “[d]efendant is
not entitled to the relief requested” because a “[b]ank is not a commercial establishment.”
The prosecution did not contest the value of the forged check or contend Abarca was
ineligible for resentencing for any other reason. Nor did the prosecution check boxes
provided to request a hearing to determine whether defendant poses an unreasonable risk
of danger to the public safety or for any other reason.
On April 23, 2015, the superior court entered an order granting Abarca’s petition.2
The order indicates the superior court did not hold a hearing on his petition. The order
overruled the prosecution’s “objection that [a] bank is not [a] commercial establishment.”
The superior court ordered count one “deemed a misdemeanor . . . amend[ed] count 001
The same superior court judge presided over Abarca’s plea and sentencing
2
hearings and his resentencing proceedings.
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to a violation of 459.5 PC,” and sentenced Abarca to county jail “for the term of 364
days.” Because Abarca had already served 364 days, the superior court ordered him
released. The superior court also gave both parties “10 days to file briefs preserving
appellate issues.” The appellate record indicates neither party filed a brief raising
additional issues.
On May 27, 2015, the People filed a notice of appeal.
II
DISCUSSION
A. Petitioner’s Burden
The People contend the superior court erred in granting the petition because
Abarca did not “present any evidence whatsoever regarding the underlying facts of his
section 459 conviction.” In effect, the People contend the superior court was not
permitted to reach the merits of Abarca’s petition without first finding the petitioner had
made a prima facie case of entitlement to resentencing. We find no error.
In the first place, the People fail to set forth what constitutes a prima facie case or
how Abarca’s petition was defective. “An appellate court is not required to examine
undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California
(1999) 74 Cal.App.4th 68, 106.) We decline to do so here.
Even assuming the People’s argument is that Abarca failed to show he passed a
forged check for an amount that did not exceed $950, we refuse to reverse on that basis.
Abarca filed a signed petition declaring, under penalty of perjury, that “the value of the
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check” he was convicted of passing “does not exceed $950.” The People did not contest
the assertion in their responsive pleading in the superior court. Nor did they in any way
address the sufficiency of the petition. Even when the superior court granted the petition
and gave the People “10 days to file briefs preserving appellate issues,” they chose not to
object to the sufficiency of the petition.
Moreover, in this court, the People admit Abarca’s offense involved passing a bad
$300 check, and also admit “[t]he trial court’s order granting the petition was based on a
review of the court’s record” which contained the arrest warrant showing the value of the
bad check. Under these circumstances, we cannot find the superior court abused its
discretion by reaching the merits of Abarca’s petition.3
B. Commercial Establishment
The People contend the superior court erred by determining Abarca was entitled to
resentencing on his conviction for burglarizing U.S. Bank as shoplifting (§ 459.5) on the
ground that a bank is not a commercial establishment. Again, we find no error.
Proposition 47 added section 459.5 to the Penal Code. The new section provides:
“Notwithstanding Section 459 [burglary], 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
3 The People do not appeal the superior court’s finding based on its review of the
record of conviction that the value of the check did not exceed $950, nor do they argue
the court’s finding was not supported by substantial evidence.
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taken does not exceed nine hundred fifty dollars ($950). Any other entry into a
commercial establishment with intent to commit larceny is burglary.” We review de
novo the superior court’s interpretation of this provision. (People v. Rizo (2000) 22
Cal.4th 681, 685.)
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
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
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place of business established for the purpose of exchanging goods or services. (Accord,
In re J.L. (2015) 242 Cal.App.4th 1108, 1114.)
Banks satisfy this definition. Bank customers use banks to deposit and withdraw
funds in exchange for fees. In the context of approving banks’ ability to collect fees from
non-depositors who use their automatic teller machines, the U.S. Court of Appeals for the
Ninth Circuit noted “[t]he depositing of funds and the withdrawal of cash are services
provided by banks since the days of their creation. Indeed, such activities define the
business of banking.” (Bank of America v. City & County of San Francisco (9th Cir.
2002) 309 F.3d 551, 563.) Thus, a business like U.S. Bank 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 did not err in
holding Abarca’s offense qualified as shoplifting under section 459.5, subdivision (a).
The People argue we should take a narrower view of the ordinary meaning of
“commercial establishment” as meaning a place of business established for the purpose of
exchanging goods or merchandise. Some definitions of “commerce” and “commercial”
are in accord with this argument. (E.g., American Heritage Dict. (New College ed. 1976)
p. 267 [defining commerce as “the buying and selling of goods”], italics added.) Under
that definition, banks 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. (Nov. 4,
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2014) text of Prop. 47, p. 74, § 15 at ; see also id. at p. 74, § 18 [act shall be “liberally construed to
effectuate its purposes”].) The stated purposes of the electorate include “[r]equir[ing]
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and
drug possession.” (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) to include as shoplifting thefts from commercial ventures,
such as banks, which sell services.
C. Identity Theft
The People contend the superior court erred in granting Abarca’s petition for
resentencing because identity theft, not larceny or forgery, was the predicate act for the
burglary conviction.
To begin with, the People have forfeited this claim of error. The prosecution did
not raise identity theft in relation to the original conviction. Instead, it charged Abarca
with entering the bank with the intent to commit “theft and a felony” (the burglary count)
and forgery. Neither the prosecution nor the superior court mentioned identity theft at the
plea hearing. The superior court asked only if Abarca “went into a building with the
intent to commit a felony.” Nor did the prosecution raise identity theft in any way during
resentencing proceedings. It did not claim identity theft was the predicate for Abarca’s
burglary conviction. Nor did it contend Abarca was ineligible for resentencing for that
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reason. The People’s only objection to resentencing Abarca was their contention that a
bank does not qualify as a commercial establishment. In addition, in its order granting
the petition, the superior court allowed both parties 10 days to brief any additional issues
they wished to preserve for appeal. The People did not take advantage of the opportunity
to raise identity theft even then, and therefore forfeited the issue. (People v. Taylor
(2009) 174 Cal.App.4th 920, 937.)
Even if the claim had not been forfeited, we would find no error on the merits.
Abarca was entitled to resentencing if his conviction for burglary was predicated on his
intent to commit theft or forgery, both of which are eligible offenses under
Proposition 47. (§§ 490.2, subd. (a) [“obtaining any property by theft where the value of
the money . . . does not exceed nine hundred fifty dollars ($950) shall be considered petty
theft and shall be punished as a misdemeanor”]; 473, subd. (b) [“any person who is guilty
of forgery relating to a check . . . where the value of the check . . . does not exceed nine
hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not
more than one year”].) The superior court’s determination that Abarca was entitled to
resentencing was based on the implicit finding that his conviction was predicated on his
intent to commit theft or forgery. On review, we indulge in every presumption to uphold
the judgment and look to the appellant to show error. (People v. Sullivan (2007) 151
Cal.App.4th 524, 549.) The People have not shown error here.
As we have discussed, identity theft played no role in the prosecution of Abarca.
The People charged him with burglary and forgery. The prosecution entered a plea
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bargain with Abarca whereby he pled guilty to burglary, and the People agreed to dismiss
the forgery count. At the plea hearing, the superior court asked Abarca whether he had
entered a building with the intent to commit a felony. The same court decided Abarca’s
petition for resentencing and presumably had access to all the records we have on appeal.
Based on this history and these records, we conclude the superior court did not abuse its
discretion in finding theft or forgery to be the predicate of the burglary charge, and
therefore did not err in granting Abarca’s petition.
Proposition 47 provides a petitioning procedure allowing offenders to seek
resentencing on existing felony convictions by showing Proposition 47 reclassified the
crime of conviction as a misdemeanor. (§ 1170.18, subd. (a).) If a petitioner qualifies,
the remedy in subdivision (b) is for “the petitioner’s felony sentence [to] be recalled and
the petitioner resentenced to a misdemeanor.” (§ 1170.18, subd. (b), italics added.) The
statutory language is entirely focused on resentencing offenders for existing, but
reclassified, convictions. It does not require a petitioner to examine the Penal Code for
other offenses his conduct would have supported and prove he would not have been
convicted of those in addition. (§ 1170.18, subd. (a).) Nor does it suggest the superior
court must examine the Penal Code to assure itself before granting a petition that an
offender could not have been convicted of a different felony for the same underlying
conduct. (§ 1170.18, subd. (b).) Accordingly, we decline to reverse the superior court’s
order granting the petition on the basis that the People could have prosecuted Abarca for
felony burglary predicated on identity theft.
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III
DISPOSITION
We affirm the order granting Abarca’s petition for resentencing.
CERTIFIED FOR PUBLICATION
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
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