Opinion
E063216
09-01-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE OVIEDO, Defendant and Appellant.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Marvin E. Mizell and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1105870) OPINION APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Reversed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Marvin E. Mizell and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Jesse Oviedo, filed a petition for resentencing pursuant to Penal Code section 1170.18, which the court denied. On appeal, defendant contended the court erred in denying his petition.
All further statutory references are to the Penal Code unless otherwise indicated. --------
By opinion dated April 27, 2016, we affirmed the judgment. We held that defendant's offenses of entering the office of a temporary employment agency on three separate occasions, on three separate dates, while identifying himself as the victim, and requesting the victim's paychecks in the amounts of $231.83, $178.86, and $128, respectively, did not qualify for reduction from second degree burglary to misdemeanor shoplifting because the office of a temporary employment agency did not qualify as a "commercial establishment" within the meaning of section 459.5. The California Supreme Court, by order filed on June 28, 2017, transferred the matter to this court with directions to vacate our decision and reconsider the matter in light of the decision in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). We have now done so. The order is reversed.
I. FACTS AND PROCEDURAL HISTORY
On June 29, 2012, the People charged defendant by information with six counts of second degree burglary (§ 459, counts 1-4, 7, & 9), unlawfully obtaining personal identifying information for the purpose of obtaining value (§ 530.5, count 5), and two counts of signing the name of another person for the payment of money (§ 470, subd. (a), counts 6 & 8). The People additionally alleged defendant had suffered a prior strike conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)
On December 19, 2013, defendant pled guilty to one count of second degree burglary and admitted the prior strike conviction. In return, all remaining charges were dismissed and the People agreed to a sentence consisting of the low term of 16 months, doubled to 32 months pursuant to the prior strike conviction.
The court asked defendant if it was "true that on October 7th, 2011, in the County of Riverside, you went into a place in Norco with the idea to commit a theft or some felony inside; is that true?" Defendant answered, "Yes." Defendant's plea agreement reflects that the factual basis for the plea consisted of defendant's agreement that he "did the things that are stated in the charges that I am admitting." The minute order reflects that the court found the "factual basis for the plea is based on [the] Oral Statement [of] Defendant on the record." On February 7, 2014, the court sentenced defendant to 32 months' incarceration.
On November 18, 2014, defendant filed a petition for resentencing. On December 19, 2014, the People filed a response stating defendant was ineligible for resentencing pursuant to section 1170.18 because his burglary was not of a commercial establishment.
On February 27, 2015, the People filed a formal opposition to defendant's motion in which they recounted the facts pertaining to the initial charges filed against defendant. According to the People, defendant had entered the office of a temporary employment agency on three separate occasions on three separate dates identifying himself as the victim and requesting the victim's paychecks in the amounts of $231.83, $178.86, and $128, respectively. Thereafter, when the victim came to pick up his paychecks, agency personnel discovered they had given the paychecks to the wrong person. On a fourth date, defendant entered the agency's office and requested another of the victim's paychecks, at which time agency personnel called the police and defendant was arrested.
The People argued that the temporary employment agency did not meet the definition of a "commercial establishment" such that defendant would be entitled to resentencing pursuant to section 1170.18 for a misdemeanor conviction under the newly-created crime of shoplifting under section 459.5. On March 13, 2015, defendant filed a formal reply in which he maintained that the temporary employment agency qualified as a "commercial establishment" under the shoplifting statute such that defendant should be resentenced to the misdemeanor offense.
At the hearing on the petition on March 13, 2015, the court stated: "[W]hen you use the word 'shoplifting,' you get the vision of somebody going into Walmart and stealing a, you know, box of Tide or whatever, but the question is how much farther than the clear-cut case of going into a retail store and stealing something does the word 'shoplifting' reach. And one parameter is commercial establishment, which could well include a bank. [¶] But this is another step. This is an employment agency where the gentleman goes in and claims he's somebody else and gets their check. So I'm ruling that's beyond even [an] expanded definition of commercial establishment, and, therefore, the motion is denied."
II. DISCUSSION
Defendant contends the court erred in declining to recharacterize, pursuant to section 1170.18, defendant's conviction for second degree burglary as a misdemeanor conviction for shoplifting under section 459.5. Thus, defendant contends the court erred in denying his motion for resentencing. We agree.
"'On November 4, 2014, the voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47), which went into effect the next day. [Citation.]' [Citation.] 'Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' [Citation.] To this end, Proposition 47 . . . added sections 459.5 . . . and 1170.18 to the Penal Code . . . . [Citation.]" (People v. Contreras (2015) 237 Cal.App.4th 868, 889-890.)
"Section 459.5 defines the crime of 'shoplifting.' It provides, in relevant part: '(a) Notwithstanding Section 459, 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. Shoplifting shall be punished as a misdemeanor . . . [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.'" (People v. Contreras, supra, 237 Cal.App.4th at pp. 890-891.) Section 459.5 does not define "commercial establishment."
"'Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person "currently serving" a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. [Citation.] 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." [Citation.]' [Citation.]" (People v. Contreras, supra, 237 Cal.App.4th at p. 891.)
"'"In interpreting a voter initiative . . . we apply the same principles that govern statutory construction. [Citation.] Thus, 'we turn first to the language of the statute, giving the words their ordinary meaning.' [Citation.]"' [Citations.] '"The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, 'we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' [Citation.]" [Citation.] In other words, "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure."' [Citation.] Our review is de novo. [Citation.]" (In re J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.)
A "business like [a] [b]ank provides financial services in exchange for fees, and is therefore a commercial establishment within the ordinary meaning of that term." (People v. Abarca (2016) 2 Cal.App.5th 475, 482; accord, People v. Gonzales, supra, 2 Cal.5th at pp. 870-874 ["larceny" in § 459.5 must be construed to mean any "theft" from any business]; People v. Bloomfield (2017) 13 Cal.App.5th 647, 650-651, 656-657 [convictions for access card forgery offenses for attempted payment of cab fare and purchase of dinner at fast food restaurant qualified under § 459.5 for § 1170.18 relief]; see People v. Valencia (2017) 3 Cal.5th 347, 398 (dis. opn. of Liu, J.) [§ 459.5 intended to have the same scope as burglary statute].)
Here, under the broad definitions implicated in the decisions cited above, the temporary employment agency qualifies as a commercial establishment for purposes of the shoplifting statute because it is a business from which defendant committed thefts.
III. DISPOSITION
The order is reversed and the matter is remanded to the superior court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.