People v. Martin
| Decision Date | 12 December 2016 |
| Docket Number | F071654 |
| Citation | 6 Cal.App.5th 666,211 Cal.Rptr.3d 559 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Brandon Lamar MARTIN, Defendant and Appellant. |
Stephen M. Hinkle, Oceanside, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Brandon Lamar Martin (defendant) appeals from the denial of his petition for resentencing under Penal Code section 1170.18,1 a statute added by Proposition 47, the Safe Neighborhoods and Schools Act. Defendant asserts his burglary convictions are eligible for resentencing because they would have been convictions for shoplifting, punishable as misdemeanors under section 459.5, another statute added by Proposition 47. We disagree and affirm the judgment of the trial court. Section 459.5's use of the term "larceny" does not include all forms of theft. Defendant's felony conviction for second degree burglary, for entering a commercial establishment and acquiring merchandise by use of a forged check, is not subject to recall of sentence and resentencing under section 1170.18, subdivision (a) or designation as a misdemeanor under section 1170.18, subdivision (f), because his conduct would not have constituted a violation of section 459.5 had that section been in effect at the time of his offense.
On July 10, 2009, defendant entered a Smart & Final in Clovis, California, and purchased alcohol, candy, toilet paper, and other items. Defendant paid with a check, number 2241, and provided his identification to the cashier. The cashier manually entered the check information into the register and, believing the check was valid, allowed defendant to leave with the goods he had purchased when the transaction was complete. As a result, defendant was sold $192.26 worth of goods.
Defendant later returned to the store and again bought alcohol and snack items. He again paid with a check, number 2242, and provided his identification to the cashier. Defendant's identification matched the information on the check and the clerk accepted the check believing it to be valid. As a result, defendant was sold $306.38 worth of goods.
Both checks were tied to the payroll account of a business called The Allergy Center. When the checks cashed, the bookkeeper for the company noticed both that they were out of order and that the company name was not on them. Defendant was not authorized to write checks on behalf of the company and was not known by the bookkeeper.
Defendant was convicted on six counts relating to the two forged checks; two counts of identity theft (§ 530.5, subd. (a)), two counts of second degree commercial burglary (§ 459, subd. (b)), and two counts of check forgery (§ 475, subd. (c)). In bifurcated proceedings, defendant was found to have several prior convictions and to have served several prior prison terms. Defendant received a sentence of six years in prison.
On December 15, 2014, defendant filed a petition pursuant to Proposition 47 to have his second degree commercial burglary convictions reduced to misdemeanor violations of section 459.5, and to be resentenced. His petition was later supplemented with additional briefing from counsel. On May 4, 2015, the trial court held a hearing and denied defendant's petition noting that, because defendant was likely out of prison, the petition should be treated as an application for modification. The trial court concluded that, because forgery was "not a theft," defendant had not entered the Smart & Final with the intent to commit theft and was therefore not eligible for relief under Proposition 47.
The record is viewed in the light most favorable to the trial court's ruling with a presumption that the order is correct. (People v. Johnson (2016) 1 Cal.App.5th 953, 960, 205 Cal.Rptr.3d 246.) The court's review of the meaning of a voter initiative is de novo. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114, 195 Cal.Rptr.3d 482.) Factual findings of the trial court are reviewed "for substantial evidence and the application of those facts to the statute de novo." (People v. Johnson , supra , at p. 960, 205 Cal.Rptr.3d 246.)
(People v. Morales (2016) 63 Cal.4th 399, 404, 203 Cal.Rptr.3d 130, 371 P.3d 592.)
Proposition 47 also created a new resentencing provision, to wit, section 1170.18. Under that statute, "[a] person currently serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence ... to request resentencing in accordance with ... [s]ection 459.5...." (Id . subd. (a).) If, on the other hand, "[a] person ... [had] completed his or her sentence for a conviction, ... of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application ... to have the felony conviction or convictions designated as misdemeanors." (Id . subd. (f).)
Section 459.5, a statute added by Proposition 47, created a new crime of shoplifting, a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary. Now codified, section 459.5, subdivision (a) provides in relevant part:
Defendant asserts he "entered Smart [&] Final with the intent to commit theft." He argues the information charged him with unlawfully entering the store " ‘with the intent to commit larceny or any felony,’ " and theft by larceny is what he did. The fact he obtained the merchandise by forgery does not change the analysis as "forgery was only the means utilized" to obtain the merchandise.2 He contends Proposition 47's limitation on relief for those convicted of forgery and of identity theft, means the voters did not intend to limit relief for those convicted of second degree commercial burglary. The statute, he asserts, requires a liberal construction.
The People argue defendant entered the commercial establishment with the intent to commit forgery, not larceny, and intent to commit larceny is distinct from intent to commit forgery. Forgery, they argue, is " ‘the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud.’ " They assert forgery does not require asportation of property, whereas larceny requires trespassory taking and the carrying away of property without the owner's consent. They argue there is no evidence the voters intended to grant Proposition 47 relief to all defendants convicted of second degree commercial burglary.
Section 459.5, subdivision (b) provides: Thus, in the typical case, if the conduct leading to a defendant's burglary conviction would qualify as "shoplifting" under Proposition 47, he or she would have been charged with a misdemeanor had section 459.5 been in place at the time, instead of being charged with burglary. Indeed, one guilty of shoplifting could not have been charged with burglary at all.
This leads to the question before us: had section 459.5 been in effect at the time of defendant's offense, could defendant have been charged with burglary, or was his conduct, instead, an act of shoplifting within the meaning of section 459.5, subdivision (a)?3 To determine whether defendant's offenses constitute "[entry into] a commercial establishment with intent to commit larceny" (§ 459.5, subd. (a)), we must determine the meaning of larceny in Proposition 47's newly defined crime of shoplifting.
When interpreting the meaning of laws passed by voter initiative, the court's analysis is governed by the voters' intent. (People v. Park (2013) 56 Cal.4th 782, 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263 (Park ); People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.) However, the court submits to that intent through application of the well-settled principles of statutory construction applied to legislatively enacted statutes. (People v. Arroyo (2016) 62 Cal.4th 589, 593, 197 Cal.Rptr.3d 122, 364 P.3d 168 ; Park , supra , at p. 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.) "We therefore first look to ‘the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context.’ " (Park , supra , at p. 796, 156 Cal.Rptr.3d 307, 299 P.3d 1263.) This requires looking both at the historical meaning of larceny and at its use in the statute defining the crime of shoplifting.4
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