No. E065897.

THE PEOPLE, Plaintiff and Appellant, v. CELESTE MARIE JONES, Defendant and Respondent.

Court of Appeals of California, Fourth District, Division Two.

Attorney(s) appearing for the Case

Michael A. Hestrin , District Attorney, and Donald W. Ostertag , Deputy District Attorney, for Plaintiff and Appellant.

Robert L.S. Angres , under appointment by the Court of Appeal, for Defendant and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Defendant Celeste Marie Jones successfully petitioned the superior court to reduce her convictions for second degree burglary and forgery from felonies to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act. The People appeal contending defendant's petition did not make a prima facie showing that she was entitled to relief, and defendant's burglary conviction did not qualify as shoplifting under Penal Code section 459.5, a statute adopted by Proposition 47. We conclude the trial court properly granted the petition and affirm the order.



The People filed a felony complaint charging defendant with one count of burglary (Pen. Code,1 § 459, count 1) and one count of forgery (§ 470, subd. (d), count 2). The complaint also alleged defendant suffered four prior prison terms.2 (§ 667.5, subd. (b).) Testimony at a preliminary examination demonstrated defendant attempted to cash a forged check in the amount of $760 at a Bank of America in Moreno Valley. The magistrate bound defendant over for trial, and the People filed an information alleging the same two counts and prison priors. Defendant thereafter pleaded guilty to both counts and admitted the prison priors. The court sentenced defendant to the middle term of two years on count 1, plus one year each for the four prior prison terms, for a total term of six years in state prison. The court sentenced defendant to the middle term of two years on count 2 and stayed execution of the sentence under section 654.

Six years later, defendant, in propria persona, filed a form petition for resentencing under Proposition 47. The People's opposition indicated defendant entered a bank and cashed a stolen check in the amount of $760. The People argued defendant's conviction did not qualify as shoplifting because a bank is not a commercial establishment, and defendant had the intent to commit identity theft. With respect to defendant's conviction for forgery on count 2, the People argued the conviction was already a misdemeanor.3 The superior court granted the petition ex parte and reduced both counts to misdemeanors.

The People timely appealed.



A. The People Forfeited Their Claim That Defendant Failed to Make a Prima Facie Showing Below

The People contend the superior court erred by granting defendant's petition because defendant never made a prima facie showing she was entitled to relief under Proposition 47. The People did not oppose the petition on that ground and have therefore forfeited the argument on appeal.

"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)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "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." (Id. at p. 1092.)

It is now settled that a defendant petitioning for relief under Proposition 47 bears the burden of proving she is entitled to resentencing under Proposition 47. "The statute [Pen. Code, § 1170.18] itself is silent as to who has the burden of establishing whether a petitioner is eligible for resentencing. However, Evidence Code section 500 provides, `[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.' Because defendant is the petitioner seeking relief, and because Proposition 47 does not provide otherwise, `a petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing.' (People v. Sherow (2015) 239 Cal.App.4th 875, 878 . . . (Sherow); see also People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 449-450. . . .) In a successful petition, the offender must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. (Sherow, supra, at pp. 877-878; see also [Pen. Code,] § 1170.18, subd. (a).) The defendant must attach information or evidence necessary to enable the court to determine eligibility. (Sherow, supra, at p. 880 [`A proper petition could certainly contain at least [defendant's] testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination.'].)" (People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)

The new crime of "shoplifting," in violation of section 459.5, has four elements: (1) entering a "commercial establishment" (2) with the intent to commit a larceny (3) while the establishment is open during regular business hours and (4) taking property worth no more than $950. (§ 459.5, subd. (a); see People v. Stylz (2016) 2 Cal.App.5th 530, 534.) In their brief, the People contend defendant did not make a prima facie showing that her burglary conviction qualified as shoplifting because she failed to introduce any "information about the nature of the property" she acquired during her burglary or any information about "the nature of [her] entry that constituted second degree burglary." By "nature of the property," we assume the People mean the amount of the property defendant acquired, and by "nature of [her] entry," we assume the People mean defendant's intent when she entered the bank.

True, defendant did not indicate the value of the property she acquired during her burglary, and she failed to check the box on the form which read, "[t]he amount in question is not more than $950." And, it is also true that defendant did not indicate in her petition what her intent was when she entered the bank. But, the People's opposition did not object that defendant's petition was fatally deficient on its face because defendant failed to indicate the value of the property or that her intent was to commit a larceny. Instead, the opposition argued the petition should be denied on its merits because a bank is not a commercial establishment, and defendant intended to commit identity theft. Moreover, in their opposition and again on appeal, the People conceded the value of the property in question was less than $950. Therefore, we conclude the People have forfeited their argument about defendant's prima facie showing. (People v. Abarca (2016) 2 Cal.App.5th 475, 480 (Abarca), review granted Oct. 19, 2016, S237106.)4

B. Defendant's Burglary Conviction Qualifies as Shoplifting for Purposes of Resentencing Under Proposition 47

With respect to the merits, the People argue defendant's burglary conviction does not qualify as shoplifting under Proposition 47 because a bank is not a "commercial establishment," and defendant did not intend to commit a larceny when she attempted to cash a stolen and forged check. We disagree and affirm.

The People contend defendant had the intent to commit identity theft in violation of section 530.5, subdivision (a), when she entered the Bank of America. But, the People did not charge defendant in this case with identity theft; the testimony at the preliminary examination did not establish defendant had the intent to commit identity theft when she entered the Bank of America; and defendant pleaded guilty to second degree burglary—not to identity theft. We recently rejected a similar argument. "Proposition 47 provides a petitioning procedure allowing offenders to seek resentencing on existing felony convictions by showing Proposition 47 reclassified the crime of conviction as a misdemeanor. (§ 1170.18, subd. (a).) If a petitioner qualifies, the remedy in subdivision (b) is for `the petitioner's felony sentence [to] be recalled and the petitioner resentenced to a misdemeanor.' (§ 1170.18, subd. (b).) The statutory language is entirely focused on resentencing offenders for existing, but reclassified, convictions. It does not require a petitioner to examine the Penal Code for other offenses his conduct would have supported and prove he would not have been convicted of those in addition. (§ 1170.18, subd. (a).) Nor does it suggest the superior court must examine the Penal Code to assure itself before granting a petition that an offender could not have been convicted of a different felony for the same underlying conduct. (§ 1170.18, subd. (b).) Accordingly, we decline to reverse the superior court's order granting the petition on the basis that the People could have prosecuted [defendant] for felony burglary predicated on identity theft." (Abarca, supra, 2 Cal.App.5th at pp. 483-484.)

The People also contend the Bank of America where defendant attempted to cash a stolen and forged check was not a "commercial establishment" for purposes of section 459.5. Whether a bank is a "commercial establishment" within the meaning of Proposition 47 is a question of statutory interpretation we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.) Neither Proposition 47 nor the Penal Code provide a definition of "commercial establishment." When interpreting a statute, we must give words and phrases their usual and ordinary meaning. (§ 7, subd. 16; People v. Castillolopez (2016) 63 Cal.4th 322, 329.)

Black's Law Dictionary defines "establishment" as "[a]n institution or place of business." (Black's Law Dict. (8th ed. 2004) p. 586, col. 1.) That same dictionary defines "commerce" as "[t]he exchange of goods or services, esp. on a large scale involving transportation between cities, states, and nations." (Id. at p. 285, col. 1, italics added.) Based on that dictionary and other sources, the courts of this state have concluded the phrase "commercial establishment," as used in section 459.5, means a place of business established for and primarily engaged in the exchange of goods or services. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114 [high school campus is not a commercial establishment]; People v. Smith (2016) 1 Cal.App.5th 266, 273 [check cashing business is a commercial establishment], review granted Sept. 14, 2016, S236112;5 People v. Holm (2016) 3 Cal.App.5th 141, 146-148 [golf and country club is a commercial establishment].)

In Abarca, this court adopted the same definition of "commercial establishment." "[W]e interpret the term `commercial establishment' as it appears in section 459.5, subdivision (a) to mean a place of business established for the purpose of exchanging goods or services." (Abarca, supra, 2 Cal.App.5th at p. 481.) This court concluded banks satisfy the definition of "commercial establishment" because they provide their customers with financial services in exchange for fees. (Id. at pp. 481-482.) We believe that conclusion remains persuasive and come to the same conclusion here.

In its brief, the People argue the commonsense meaning of "commercial establishment" "is limited to establishments that offer goods for sale," and that financial institutions, such as banks, fall outside that definition. As the People indicate, some dictionaries define "commerce" as pertaining to the sale of goods. (E.g., Webster's 3d New Internat. Dict. (1993) p. 456, col. 3 ["the exchange or buying and selling of commodities"].) But limiting the meaning of "commerce" to the sale of goods, as suggested by the People, is rather archaic and no longer reflects actual usage. "While `commerce' once simply referred to goods, that definition was outdated by at least the early 19th century, as the practical realities of modern life brought services onto an equal footing." (Pitney-Bowes, Inc. v. State of California (1980) 108 Cal.App.3d 307, 324 (dis. opn. of Schwartz, J.), citing Gibbons v. Ogden (1824) 22 U.S. 1, 229.) Under the more modern conception of the term, financial services provided by banks undoubtedly qualify as "commerce."6

Even assuming the People's interpretation of "commercial establishment" is a reasonable and plausible alternative, we may resolve the ambiguity in section 459.5 with reference to other indicia of the voters' intent. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.) As expressed in uncodified sections of Proposition 47, the intent of the voters was to reduce nonserious and nonviolent felonies to misdemeanors and to direct savings to K through 12 education. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) The voters mandated that Proposition 47 be "broadly" and "liberally" construed to effectuate its purposes. (Id., §§ 15, 18, p. 74.) Because adopting the People's narrow definition of "commercial establishment" to places of business that buy and sell goods would withhold resentencing under Proposition 47 from many otherwise eligible felons and would therefore frustrate the intent of the voters, we must reject it. (Abarca, supra, 2 Cal.App.5th at p. 482.)



The order is affirmed.

HOLLENHORST, Acting P. J. and MILLER, J., concurs.


1. All undesignated statutory references are to the Penal Code.
2. The complaint also alleged a violation of probation in a separate case that is not a part of this appeal.
3. As the People's opposition indicated, defendant's plea form showed she wished to plead guilty to misdemeanor forgery. However, defendant pleaded guilty to felony forgery, and the trial court sentenced her to two years in state prison.
4. Under a recent amendment to rule 8.1115 of the California Rules of Court, we may rely on published appellate court decisions as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
5. See ante, footnote 4.
6. As further evidence that a rigid distinction between goods and services is inappropriate when determining whether a bank is a commercial establishment, many of the services that savings and commercial banks provide to their customers are described as commercial "products." (See California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1, 22.)


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