People v. Hudson

• Decision Date: 16 August 2016
• Docket Number: D068439
• Citation: 2 Cal.App.5th 575,206 Cal.Rptr.3d 336
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Babyray HUDSON, Defendant and Appellant.

2 Cal.App.5th 575

206 Cal.Rptr.3d 336

The PEOPLE, Plaintiff and Respondent

v.Babyray HUDSON, Defendant and Appellant.

D068439

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

Filed August 16, 2016

Certified for Partial Publication.^*

Jill M. Klein, Pasedena, 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, Randall D. Einhorn and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN

, J.

Babyray Hudson appeals from an order denying his petition to reduce his second degree burglary and forgery convictions to misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act (the Act). (Pen. Code,¹

§ 1170.18.) Hudson's convictions involve a 2011 incident in which he entered a bank, falsely impersonating another person, with the intent to commit a felony by signing someone else's name to a check. We conclude that, while a bank is a commercial establishment (§ 459.5), the trial court properly denied the petition because Hudson failed to establish his eligibility for resentencing.

PROCEDURAL BACKGROUND

Hudson pled guilty to one count each of second degree burglary (§ 459), forgery (§ 470, subd. (a)), and false impersonation (§ 529, subd. (a)(2)). He also admitted the truth of two prior prison term commitment allegations. (§§ 667.5 & 668.) The trial court sentenced Hudson to a total term of five years, suspended execution of the sentence, granted three years formal probation and indicated Hudson was to complete a residential treatment program of no less than six months. The trial court later revoked and terminated probation and imposed the previously stayed five-year commitment, to be served locally under section 1170, subdivision (h).

In 2014, after passage of the Act, Hudson filed a petition asserting his second degree burglary and forgery convictions must be reduced to misdemeanors, and asking the court to exercise its discretion to reduce the false impersonation conviction to a misdemeanor. The trial court denied the petition, finding a bank is not a commercial establishment under the Act and that Hudson intended to take property in excess of $950. Hudson timely appealed.

DISCUSSION

I

GENERAL LEGAL PRINCIPLES

In November 2014, the electorate approved the Act, which makes certain theft-related and drug-related offenses misdemeanors. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091, 183 Cal.Rptr.3d 362

(Rivera ).) Among other things, the Act reduced certain types of forgeries identified in section 473, subdivision (b) to misdemeanors, including forgery by check under section 475, as long as the value of the check does not exceed $950. (§ 473, subd. (b).) The Act added section 459.5, which classifies shoplifting as a misdemeanor “where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950).” (§ 459.5, subd. (a).)

The Act also created a new resentencing provision under which certain individuals may petition the superior court for a recall of sentence and request resentencing. (§ 1170.18, subd. (a)

.) “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 unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).)” (Rivera , supra , 233 Cal.App.4th at p. 1092, 183 Cal.Rptr.3d 362.)

“ ‘In interpreting a voter initiative, we apply the same principles that govern our construction of a statute.’ ” (People v. Lopez (2005) 34 Cal.4th 1002, 1006, 22 Cal.Rptr.3d 869, 103 P.3d 270

.) “ ‘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.]’ [Citation.] We also ‘ “refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.] ‘Using these extrinsic aids, we “select the construction that comports most closely with the apparent intent of the [electorate], with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” ’ ” (People v. Superior Court (Cervantes ) (2014) 225 Cal.App.4th 1007, 1014, 171 Cal.Rptr.3d 86

.)

II

SECOND DEGREE BURGLARY CONVICTION

Hudson pled guilty to second degree burglary based on his act of entering a bank, falsely impersonating another person, with the intent to commit a felony by signing someone else's name to a check. The question presented is whether the circumstances of the offense entitle Hudson to resentencing under the Act. The inquiry is one of statutory interpretation, which we review de novo. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919, 49 Cal.Rptr.3d 211

.)

Section 459.5 defines “shoplifting” as: (1) entry into a commercial establishment; (2) while that establishment is open during regular business hours; (3) with the intent to commit larceny; and (4) the value of the property that is taken or intended to be taken does not exceed $950. Hudson argues elements 1, 3 and 4 in this appeal. As we shall explain, the trial court did not err in refusing to resentence Hudson's second degree burglary conviction as, while a bank is a commercial establishment and Hudson's actions qualified as larceny, Hudson failed to carry his burden of showing that he was eligible for resentencing.

A. Commercial Establishment

The trial court denied the petition finding that a bank is not a commercial establishment under the Act. Hudson asserts the trial court erred because the plain language of section 459.5 and the legislative intent behind the Act compel the conclusion that a “commercial establishment” as used in the new shoplifting statute must be broadly construed to include a bank.

The Act does not define the term “commercial establishment.” The People note there are no published cases in California addressing whether a bank constitutes a commercial establishment. However, in cases published after the People filed their respondent's brief, the People conceded that a bank constituted a commercial establishment. (People v. Root (2016) 245 Cal.App.4th 353, 356, 199 Cal.Rptr.3d 516

(Root ), review granted May 11,

2016, S233546; People v. Triplett (2016) 244 Cal.App.4th 824, 829, 831, 198 Cal.Rptr.3d 678

, review granted April 27, 2016, S233172 [plea agreement established defendant entered a bank and the People conceded at a hearing on the petition that defendant entered a commercial establishment].)

Focusing on the common definition of “shoplifting,” the People contend a bank is a financial business where transactions are held, not a commercial establishment where items are on display for sale. (Black's Law Dict. (10th ed. 2014) p. 1590 [defining shoplifting as “[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.”].) The plain language of section 459.5 compels the conclusion that a bank qualifies as a commercial establishment.

The People erroneously focus on the word “shoplifting,” which is not an element of the crime. Rather section 459.5 gives shoplifting a more technical definition involving four separate elements, including entry into a commercial establishment. Significantly, the Act does not define shoplifting according to its common meaning and there is nothing in the text of the Act to support a conclusion that the voters intended to adopt the common meaning of shoplifting.

The court in In re J.L . (2015) 242 Cal.App.4th 1108, 195 Cal.Rptr.3d 482

discussed the definition of “commercial establishment” in the context of a minor stealing a cell phone from the high school locker of another student. (Id . at p. 1111, 195 Cal.Rptr.3d 482.) The J.L. court affirmed the adjudication of the minor for burglary, holding the location of the theft did not occur at a “commercial establishment” as contemplated by section 459.5. (J.L., supra, at p. 1114, 195 Cal.Rptr.3d 482

.) The J.L. court noted that the commonsense meaning of the term 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. (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 buying and selling of merchandise, on a large scale’]; Black's Law Dict. (10th ed. 2014) p. 325 [‘commercial’ means ‘[o]f, relating to, or involving the buying and selling of goods; mercantile’]; see also 37 C.F.R. § 258.2 [copyright regulation defining the term ‘commercial establishment’ 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']; Gov. Code, § 65589.5, subd. (h)(2)(b)

[defining ‘neighborhood commercial’ land use as ‘small-scale general or specialty stores that furnish...