People v. Smith

• Court: California Court of Appeals
• Writing for the Court: SLOUGH, J.
• Citation: People v. Smith, 1 Cal.App.5th 266, 204 Cal.Rptr.3d 425 (Cal. App. 2016)
• Decision Date: 08 July 2016
• Docket Number: E062858
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Lee SMITH, Defendant and Appellant.

1 Cal.App.5th 266

204 Cal.Rptr.3d 425

The PEOPLE, Plaintiff and Respondent

v.Michael Lee SMITH, Defendant and Appellant.

E062858

Court of Appeal, Fourth District, Division 2, California.

Filed July 8, 2016

James M. Crawford, Orange, 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.

OPINION

SLOUGH, J.

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). As part of his petition, Smith declared as to both counts that “[t]he value of the check or property does not exceed $950.00.” The People responded by representing Smith “is entitled to resentencing” on count 2 and requesting a hearing to determine the new sentence. The People did not contest the value of the loss in count 1, but did request a hearing to determine eligibility because the “People do not believe count one is eligible as” the victim check exchange business “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.

IFACTUAL 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.”

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).)

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's petition took the form of a declaration, signed under penalty of perjury. In the petition, Smith declared as to both counts that the value of the stolen property did not exceed $950. However, he did not attach additional evidence.

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.”

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.

IIDISCUSSION

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, 183 Cal.Rptr.3d 362.) 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 < http://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of July 1, 2016].)

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, 129 Cal.Rptr.2d 811, 62 P.3d 54.) “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, 94 Cal.Rptr.2d 375, 996 P.2d 27.) “ ‘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, 87 Cal.Rptr.2d 222, 980 P.2d 927.) “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, 239 Cal.Rptr. 656, 741 P.2d 154.)

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 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....