People v. Smith

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 [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