Opinion
E066814
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTOINETTE LORRAINE MAYO, Defendant and Appellant.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FBA1200091) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Reversed. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and respondent Antoinette Lorraine Mayo pled guilty to one felony count of second degree commercial burglary for entering a doctor's office and stealing a cell phone. (Pen. Code, § 459.) She subsequently filed a petition to redesignate her felony conviction as a misdemeanor under Proposition 47 (§ 1170.18), which the trial court denied.
All further statutory references will be to the Penal Code, unless otherwise noted.
Defendant appeals the order denying the petition and contends that the court erred in determining that she did not enter a commercial establishment within the meaning of section 459.5. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On February 13, 2012 at approximately 3:30 p.m., the receptionist at a doctor's office left her cell phone on her desk when she went to help a patient. Defendant entered the doctor's office and stole the cell phone.
Defendant was charged by felony complaint with second degree commercial burglary. (§ 459, count 1.) The complaint also alleged that she had served one prior prison term. (§ 667.5, subd. (b).)
On March 1, 2012, defendant pled guilty to count 1. (§ 459.) The parties stipulated that the police report contained a factual basis for the plea. In exchange for the plea, the court dismissed the remaining allegation and sentenced defendant to a term of 16 months in county prison.
On November 4, 2014, the voters of California passed Proposition 47, which reduces some felony theft-related offenses to misdemeanors when the value of the stolen property does not exceed $950. The initiative also created a procedure allowing offenders who have completed their sentences to apply to redesignate prior convictions if they "would have been guilty of a misdemeanor under" provisions added or amended by Proposition 47. (§ 1170.18, subd. (f); see People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta).)
On July 22, 2016, defendant filed a petition for resentencing to reduce her felony second degree burglary conviction to misdemeanor shoplifting. (§ 1170.18, subds. (a) & (f).) She used the mandatory form to petition for resentencing in the Superior Court of San Bernardino County. Her attorney alleged that she was convicted of second degree burglary and indicated that the property "may be less than $950." She did not submit any additional supporting evidence. The People filed a response, stating that defendant was not entitled to relief because the burglary was "not of [a] commercial establishment."
The court held a hearing on August 26, 2016. The People argued that the burglary took place in a doctor's office, and that a doctor's office "is not a commercial establishment that sells things." Defense counsel argued that the doctor's office was a business, which is a commercial establishment. The court noted that the police report did not indicate "what doctor or what type of medical office." It then remarked that it was not aware "of doctors being able to sell things out of their offices without a business license or . . . otherwise. Their ability is to provide services, only." The court then denied defendant's petition.
ANALYSIS
The Court Improperly Denied Defendant's Petition
Defendant contends the trial court erred in denying her petition for resentencing since she was guilty of shoplifting, not second degree burglary. Specifically, she argues that a doctor's office is a "commercial establishment" within the meaning of section 459.5. We agree.
A. Relevant Law
A defendant may be eligible for misdemeanor resentencing under Proposition 47 if he/she "would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) Proposition 47 added several new provisions, including section 459.5, which created the crime of shoplifting. (§ 1170.18, subd. (a).) Section 459.5, subdivision (a), provides: "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 is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. (§ 459.5, subd. (a).)" (People v. Gonzales (2017) 2 Cal.5th 858, 863 (Gonzales).)
C. A Doctor's Office is a Commercial Establishment within the Meaning of Proposition 47
In Gonzales, supra, 2 Cal.5th 858, a defendant stole his grandmother's checkbook, entered a bank twice, and cashed checks made out to him for $125. His grandmother did not sign the checks or authorize the defendant to cash them. (Id. at p. 862.) The defendant pled guilty to second degree burglary and was placed on probation for three years. He filed a petition for resentencing under section 1170.18. The trial court denied his petition, and the Court of Appeal affirmed. (Ibid.) However, the Supreme Court reversed the Court of Appeal's judgment and held that the "defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute." (Ibid.) Therefore, the Supreme Court impliedly held that a bank is a commercial establishment within the meaning of section 1170.18. (Ibid.)
Similarly, in People v. Abarca (2016) 2 Cal.App.5th 475, review granted October 19, 2016, S237106 (Abarca), this court held that a bank is a "commercial establishment" within the meaning of Proposition 47. (Id. at pp. 481-482.) In doing so, we noted that "[n]either Proposition 47 nor the Penal Code defines commercial establishment." (Id. at p. 481.) We interpreted "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." (Ibid.; accord, In re J.L. (2015) 242 Cal.App.4th 1108, 1114.) Therefore, we concluded that attempting to cash a forged check in a bank qualified as shoplifting under section 459.5. (Abarca, at pp. 478, 482.)
Under California Rules of Court, a published opinion of a Court of Appeal may be cited as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115 (e)(1), eff. July 1, 2016.) --------
In People v. Smith (2016) 1 Cal.App.5th 266, review granted September 14, 2016, S236112, this court held that a check cashing business was a "commercial establishment" under section 459.5, since it "provide[d] financial services in exchange for fees." (Id. at p. 273.) Thus, we concluded that "entering a check cashing establishment and passing counterfeit bills or notes qualifies as shoplifting under section 459.5." (Id. at p. 274.)
Consistent with our previous rulings, we define the term "commercial establishment" here as "a place of business established for the purpose of exchanging goods or services." (Abarca, supra, 2 Cal.App.5th at p. 481.) Because a doctor's office provides medical services for a fee, it is a commercial establishment under section 459.5. We note that, at the hearing on the petition, the trial court recognized that "[a doctor's office's] ability is to provide services."
In light of our conclusion that the trial court erred in determining that a doctor's office is not a "commercial establishment," we reverse its denial of defendant's petition under Proposition 47.
We acknowledge the People's additional claim that defendant failed to establish that the value of the stolen cell phone was less than $950. The People concede the police report reflects that the cell phone was valued at $400, but claims the record does not show the police report was before the court at the hearing on the petition. The record belies this claim. The trial court explicitly referred to the police report during the hearing, noting that "the police report [did not] indicate what doctor or what type of medical office."
Although we conclude defendant's conviction met the threshold qualification for relief under Proposition 47, the trial court must further determine on remand whether defendant is otherwise eligible for relief. (See § 1170.18, subd. (i); see also, People v. Diaz (2015) 238 Cal.App.4th 1323, 1329, 1331-1332 ["For both a petition to recall a sentence under section 1170.18, subdivision (a) and an application to designate a prior felony conviction as a misdemeanor under section 1170.18, subdivision (f), the following provisions of section 1170.18 apply: . . . (3) the procedure 'shall not apply to persons who have one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.' "].)
DISPOSITION
The order denying defendant's petition for reclassification of her conviction of second degree commercial burglary is reversed, and the matter is remanded for further proceedings.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.