People v. Hallam

• Decision Date: 29 September 2016
• Docket Number: B266185
• Citation: 207 Cal.Rptr.3d 812,3 Cal.App.5th 905
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicholas HALLAM, Defendant and Appellant.

3 Cal.App.5th 905

207 Cal.Rptr.3d 812

The PEOPLE, Plaintiff and Respondent,

v.Nicholas HALLAM, Defendant and Appellant.

B266185

Court of Appeal, Second District, Division 1, California.

Filed September 29, 2016

Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

LUI, J.

In this appeal we consider whether the entry during business hours into a commercial establishment's employee rest room to commit larceny qualifies as “shoplifting” under Penal Code ¹section 459.5 as enacted by the voters in Proposition 47. We conclude that it does.

Nicholas Hallam appeals an order denying his petition for resentencing/application to redesignate his felony conviction for second degree burglary as misdemeanor shoplifting pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act). (§§ 1170.18, subds. (a)–(e), (f)–(i), 459.5.) The trial court reasoned that because appellant entered a store through the back entrance and committed the theft in an “employee area” of the store, the offense did not meet the definition of “shoplifting” under section 459.5, and his felony conviction thus did not qualify for resentencing or redesignation as a misdemeanor under section 1170.18, subdivisions (a)–(e) or (f)–(i).² Appellant contends the trial court erred in denying his application because his crime satisfied the elements of shoplifting under section 459.5 and the factors cited by the court did not disqualify him from relief under section 1170.18, subdivisions (b) or (i). We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2011, appellant entered a Computers NLA store during business hours and used the employee rest room with the store's permission. When he left the store he proceeded to the back of the building. There he climbed over a fence and reentered the store through the back door. He returned to the rest room and took an air compressor valued at $350.

On May 24, 2011, appellant entered a plea of no contest to one count of second degree burglary. The court sentenced him to two years in state prison.

On April 21, 2015, appellant filed a petition for resentencing/application for redesignation of a conviction pursuant to section 1170.18, subdivisions (a)–(e) and (f)–(i), seeking to designate his felony burglary conviction as a misdemeanor shoplifting conviction. The district attorney opposed the application on the grounds that the employee rest room was not an area to which the public generally had access, and appellant intended to steal an item that belonged to the store but was not store merchandise.

The trial court concluded Proposition 47 would not apply to reduce appellant's felony conviction to a misdemeanor, reasoning that, to qualify as shoplifting, the statute “anticipates” entry into an area of a commercial establishment to which the public has access and where merchandise is sold. Because appellant did not enter the store through the front door and he took an item from the employee area, the court ruled that appellant's offense did not meet the criteria for shoplifting under section 459.5.

DISCUSSION

California voters approved Proposition 47 on November 4, 2014. The stated intent of the initiative was to “ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70; People v. Stylz (2016) 2 Cal.App.5th 530, 533, 206 Cal.Rptr.3d 301 ; People v. Rivera (2015) 233 Cal.App.4th 1085, 1091, 183 Cal.Rptr.3d 362.)

To fulfill its purpose of “requir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession” (Voter Information Guide, Gen. Elec., supra , § 3, p. 70), Proposition 47 added section 459.5 to the Penal Code, creating “a new crime of ‘shoplifting,’ a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary”³ (In re J.L. (2015) 242 Cal.App.4th 1108, 1112, 195 Cal.Rptr.3d 482 (J.L.)). Section 459.5, subdivision (a) defines shoplifting 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).”“Proposition 47 allows a person ... who is currently serving a felony sentence for an offense that is now a misdemeanor ... to petition for recall of sentence and resentencing in accordance with its provisions.” (People v. Hoffman (2015) 241 Cal.App.4th 1304, 1308–1309, 194 Cal.Rptr.3d 658 ; § 1170.18, subd. (a).) Hoffman noted that if the petitioner meets the statutory criteria, the trial court has no discretion to deny the petition, unless the court determines that resentencing “ ‘would pose an unreasonable risk of danger to public safety.’ ” (Hoffman , supra , at p. 1309, 194 Cal.Rptr.3d 658 ; § 1170.18, subd. (b).) The initiative also includes a procedure whereby a person who has completed the sentence on a felony conviction for an offense that is now a misdemeanor under the Act may file an application in the trial court to have the felony conviction designated as a misdemeanor. (§ 1170.18, subd. (f); People v. Tidwell (2016) 246 Cal.App.4th 212, 218, 200 Cal.Rptr.3d 567.) Unlike the petition for recall and resentencing, the trial court undertakes no assessment of any risk to public safety in ruling on an application for designation of a felony as a misdemeanor under Proposition 47: If the application satisfies the statutory criteria in subdivision (f), the court shall designate the felony offense as a misdemeanor. (§ 1170.18, subd. (g).) Thus, the court has no discretion to deny the application of a person who has completed his felony sentence and “who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense.” (§ 1170.18, subd. (f).)

Appellant contends that because he satisfies the statutory criteria for reclassifying his burglary conviction as shoplifting under the plain language of section 459.5, the trial court erred in denying his application. We agree.

Our interpretation of Proposition 47 “is governed by the same rules that apply in construing a statute enacted by the Legislature.” ( People v. Park (2013) 56 Cal.4th 782, 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263 ; People v. Superior Court (Pearson ) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.) “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ ” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276, 87 Cal.Rptr.2d 222, 980 P.2d 927.) “We begin with the language of the statute, to which we give its ordinary meaning and construe in the context of the statutory scheme.” (People v. Johnson (2015) 61 Cal.4th 674, 682, 189 Cal.Rptr.3d 794, 352 P.3d 366.) “A statute ‘ “must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.” ’ ” (People v. Zambia (2011) 51 Cal.4th 965, 972, 127 Cal.Rptr.3d 662, 254 P.3d 965.) “Once the electorate's intent has been ascertained, the provisions must be construed to conform to that intent. [Citation.] ‘[W]e may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.’ ” (People v. Park , supra , 56 Cal.4th at p. 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.)

“The crime of shoplifting has three elements: (1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less.” (J.L. , supra , 242 Cal.App.4th at p. 1114, 195 Cal.Rptr.3d 482 ; § 459.5, subd. (a).) “Any other entry into a commercial establishment with intent to commit larceny is burglary.” (§ 459.5, subd. (a).)

The parties do not dispute that the Computers NLA store is a “commercial establishment,” or that appellant intended to and did commit larceny of property valued at less than $950. The Attorney General, however, contends that appellant “failed to satisfy his initial burden to show that the store he entered was ‘open during regular business hours' within the meaning of the shoplifting statute.” We disagree.

When appellant pleaded no contest to the charge of second degree burglary, the parties stipulated to a factual basis as set forth in the police reports.⁴ At the hearing on the application for redesignation of the felony, defense counsel stated specifically during his summary of the arrest reports that the store “was open during business hours.” In addition, the probation report before the court when appellant entered his plea states that appellant was detained and arrested on the scene on May 13, 2011, at 11:40 a.m.

In ruling on the application, the trial court accepted the representation that the crime occurred during regular business hours, expressly acknowledging that the front of the store through which appellant initially walked to reach the rest room was open for business. Moreover, the prosecutor failed to dispute the defense representation that the theft occurred during regular business hours, agreeing with the trial court's statement that the store was a commercial establishment that was open for business, while the employee rest room was not.

“The trial...