PEOPLE v. COLBERT

Appellant’s Petition for Review

Cal.December 14, 2016

9238954 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLEOF THE STATE OF CALIFORNIA,) No. ) Plaintiff and Respondent, ) ) Court of Appeal No. VS. ) H042499 ) « MARK ANTHONY COLBERT ) No. 206805 ) Ganta Clara gypREME COURT Defendant and Appellant. ) County) F | L FE D ) DEC 1 4 2016 APPELLANT’S PETITION FOR REVIEW Jorge Navarrete Clerk Deputy On Appeal from an Order after Judgment of the Superior Court of the State of California for the County of Santa Clara Honorable Linda Clark, Judge Kimberly Taylor ATTORNEY AT LAW State Bar No. 279433 P.O. Box 1123 Alameda, CA 94501 (510) 747-8488 Attorney for Appellant By appointmentof the Court of Appeal In Association with The Sixth District Appellate Program TABLE OF CONTENTS TABLE OF CONTENTS... ceccccessenecneeececseeesseeseneesesaeeesaeessereatenaeeaas i TABLE OF AUTHORITIES0000.ceccesecsseseeseseessscesseneseaeeneeeaes il NECESSITY FOR REVIEW 0000.ceeeer cseeseeaesssessaeesenetaees 2 STATEMENTOF THECASE 000.cseceeeceseeeserseeseeeneesaeeeeed2 STATEMENTOF THE FACTS...ccceeecseesseseseesssceserseteeetseeeaes 5 ARGUMENT 00.cccsecescecneceseeseeeeceeseessesesaeseseessaseesssersseeecaeenaeseeeaaees 6 Entry Into a Commercial Establishment During Business Hoursto Commit Larceny Constitutes Misdemeanor Shoplifting Under Section 459.5 Where the Theft Ultimately Occurs In An Area ThatIs Not Open to The Public Where Merchandise Is Sold, And This Court Should Grant Review of This Case To Resolve A Published Conflict In the Courts of Appeal On An Issue of Statewide Importance That Ts Likely to Recur. ..........ceccceeccccceccessseseeeceecessnececeseaeesessnaeecesaeeeatessseeeees 6 I. Basic Legal Principles.0............ccccscescceseeseseneceseeeeeseetsateeeeeessesesseeseens 7 II. Appellant’s Conduct Constituted Misdemeanor Shoplifting Under Section 459.5 As Provided By the Voters In Enacting Proposition 47, and Thus, The Trial Court Erred In Denying His Petition to Redesignate His Felony Convictions as Misdemeanors..........::scccssceeeeteeeeeeseeesseeseees 9 III. This Court Should Grant Review Because The Majority Created A Published Conflict On An Important Issue of Statutory Interpretation That is Likely to RECUD. 0...lees eeaeeeeceeeeeereceeseeesseersaneessaeeeseteneeaesenees 16 CONCLUSION00ecnsecesereeteseseeesneseereceetsaeerseeesueesueessasesescassesersateas 17 CERTIFICATE OF WORD COUNT 0...ceeeeeceseecneeeseeeesees 18 EXHIBIT Aon.ceccceccnccesneeneeseeeeeaeeeeesaeeseseceessaeceseeeseaeeessaecesevneseeesanes 19 EXHIBITBouccecseecsecseeeeseseeeseeessesseseessaseenessueseasessaeeaesaeeseeeeses 31 EXHIBIT Cooccceecneeneeeeseneesseesenseseesaeeesuesacesaeesseeseaessasaeeaeeneeaes 33 PROOF OF SERVICEWoecece ccecccsessenseeseeeesseessaeeeesseesesaesevsneeaeeeaes 40 TABLE OF AUTHORITIES STATE CASES Catlin v. Superior Court (2011) 51 Cal.4th 300.000... ceeeesseeeesees 7 Doe v. Brown (2009) 177 Cal.App.4th 408eeeeeceeceesetecesseeeaee 9 In re JL. (2015) 242 Cal.App.4th 1108oeeeeeeeseeteeeees 11,15 People v. Briceno (2004) 34 Cal.4th 451, 459 ooo. ccccccccseseesceneneees 8 People v. Colbert (2016) 5 Cal.App.5th 385.0... ccecseessceseeespassim People v. Contreras (2015) 237 Cal.App.4th 868 ........cccccsccessssseees 8 People v. Cornett (2012) 53 Cal4th 1261...ceeceeeseeeeeeeesseereesees 7 People v. Garcia (2016) 62 Cal.4th 1116 oo... eceeessseeseeespassim People v. Gomez (2008) 43 Cal.4th 249 oo... .cccccssccccssssceesscssssccsseneens 9 People v. Hallam (2016) 3 Cal.App.5th 905 ......cccccccseessseeseeeespassim People v. King (2006) 38 Cal.4th 617 ......cccccecsscecessseeseseessssesessasenes 7 People v. Murphy (2001) 25 Cal.4th 136.0... ceececssecessessesessseseesees 7 People v. Watson (2007) 42 Cal.4th 822 .......cccccccccssssecesscssesesesssecees 7 People v. Williams (2013) 57 Cal.4th 776.......:cccccccssseccsesessesseesseccenss 9 STATUTES Penal Code section 1170.18, subdivision (f)...........:::cccssesesescevees 3,8 Penal Code section 459.5 ooo ieeecsecesseceeeeeeeseteceseeeesetseneesespassim Penal Codesections 459, 460, subdivision (b)............ccscseseseeeen 2,3 STATE CONSTITUTIONAL PROVISIONS Cal. Const., art. IT, § 10, subd. (@) wo...cccceccssceeecessteeeesseessssessesnees 8 il IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) No. ) Plaintiff and Respondent, ) ) Court of Appeal No. vs. ) H042499 ) MARK ANTHONY COLBERT ) No. 206805 ) (Santa Clara Defendant and Appellant. ) County) ) TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT: Appellant Mark Anthony Colbert (hereinafter appellant) petitions this Court for review following the decision of the Court of Appeal, Sixth Appellate District, filed in that court on November9, 2016 (See Exhibit A), and modified on November 18, 2016 (no change in judgment). (See Exhibit B). A copy of the decision of the Court of Appeal, including the dissenting opinion,is attached hereto as Exhibit C. ISSUE PRESENTED FOR REVIEW Doesentry into a commercial establishment during businesshours to commit larceny constitute “shoplifting” under Penal Code section 459.5 where the theft does not occur in an area of the business that is open to the public where merchandise is sold? NECESSITY FOR REVIEW This case presents a published conflict in the courts of appeal and raises a significant issue of statutory interpretation regarding the newly-enacted offense of shoplifting under Penal Code section 459.5.' Appellant urges this Court to grant review giventhe split in authority in the appellate courts—and the disagreementin the instant court of appeal— regarding an important issue of statewide importancethatis likely to recur. Moreover, the majority opinion in this case creates tension with this Court’s recent decision in People v. Garcia (2016) 62 Cal.4th 1116 (Garcia). Thus, this Court’s guidanceis necessary to resolve the division in the courts of appeal on an important matter that will likely continue to cause confusion in the appellate courts. STATEMENTOF THE CASE Following his felony convictions for four counts of second degree burglary (§§ 459, 460, subd. (b)) in 1998, appellant was sentenced to two years and eight monthsin prison. (CT 1-2.) On November4, 2014, the voters enacted Proposition 47, “the Safe Neighborhoodsand Schools Act,” which wentinto effect the next day. Proposition 47 created a new resentencing provision undersection 1170.18 and addedsection 459.5, defining the crime of “shoplifting” and ! All further unspecified statutory references are to the Penal Code. 2 designating the crime as a misdemeanor. On May6, 2015, appellant, acting in propria persona,filed a “Petition to Redesignate Felony Conviction As Misdemeanor”pursuantto section 1170.18, subdivision (f), alleging his felony second degree burglary convictions in case No. 206805 should be redesignated as misdemeanor shoplifting convictions. (CT 7.) On May12, 2015, a denial order, authored by the Honorable Linda Clark, Judge of the Superior Court, was filed. (CT 12-13.) The order denied appellant’s petition on the groundthat the offenses—four counts of second degree burglary (§§ 459, 460, subd. (b))—-wereineligible for redesignation under section 1170.18, subdivisions (a)-(b) because they did not constitute “shoplifting” under section 459.5. The order reasoned that the offenses were based uponentries into “private . . . office areas” rather than entries into commercial establishments that were open during business hours. (CT 13.) Further, the order reasoned the value taken in one of the counts exceeded $950, and, because the counts involved the same modus operandi, the value taken in that case “strongly suggested”that appellant intended to take over $950 in each case. (CT 13.) On June 12, 2015, appellantfiled a notice of appeal challenging the denial of his redesignation petition. (CT 15.) On appeal, appellant contendedthe trial court erred in denying his petition to redesignate three of his felony convictions as misdemeanor convictions on the groundthat his conduct constituted misdemeanor shoplifting under the plain language of section 459.5 as enacted by the voters with Proposition 47. In a published opinion, a majority of the appellate court affirmed the trial court’s order denying appellant’s petition to redesignate his felony convictions as misdemeanors, reasoning appellant’s conduct did not meet the definition of shoplifting as provided in section 459.5.” (Exhibit C, pp. 1-4; 5 Cal.App.5th 385.) In his dissenting opinion, Presiding Justice Rushing disagreed, relying on the Second District Court of Appeal’s decision in People v. Hallam (2016) 3 Cal.App.5th 905 (Hallam) in concluding appellant’s conduct constituted misdemeanorshoplifting under section 459.5, assuming the property taken or intended to be taken did not exceed $950.’ (Exhibit C, pp. 4-5; 5 Cal.App.5th 385.) > In its opinion, the majority noted it did not need to reach the alternative basis of the trial court’s denial, i.e., that appellant intended to take property valued over $950. (Exhibit C, p. 4; 5 Cal.App.5th 385.) Nevertheless, the majority concluded that available evidence did not support the trial court’s finding on that issue. (/bid.) ; Specifically, the dissent concluded counts | and 2 constituted misdemeanorshoplifting because the value taken in each of those counts did not exceed $950. (Exhibit C, p. 5; 5 Cal.App.5th 385.) As to count 4, the dissent stated that remand for further proceedings was necessary to determine whether the amountintendedto be taken exceeded $950. (/bid.) The dissentalso noted that further proceedings were required to determine whetherappellant posed a risk of dangerto society. (Ibid.) 4 STATEMENTOF THE FACTS* Facts Relating to Count 1° On December26, 1996, appellant and his accomplice entered a conveniencestore of a Shell gas station in Campbell. (Exhibit C,p. 2; 5 Cal.App.5th 385.) Appellant spoke with the clerk about lottery tickets while his accomplice took about $300 from the store’s back office. (/bid.) Facts Relating to Count 2 On December30, 1996, appellant and his accomplice entered a 7- Eleven store in Sunnyvale during business hours. (Exhibit C, p. 2; 5 Cal.App.5th 385.) While appellant scratched lottery tickets, his accomplice wentinto a hallway that led to a back office and took roughly $316. (/bid.) Facts Relating to Count 4 On January 27, 1997, appellant and his accomplice entered a 7- Eleven store in Los Gatos during business hours. (Exhibit C, p. 2; 5 Cal.App.Sth 385.) While appellant asked for lottery tickets, his accomplice ‘ On November4, 2015, the Court of Appeal denied appellant’s request for judicial notice of the trial record in Santa Clara County Superior Court case No. 206805. (See Exhibit C, p. 5, fn. 2; 5 Cal.App.Sth 385.) Instead, on its own motion, the appellate court took judicial notice ofits unpublished opinion on the direct appeal from that case, People v. Colbert (Feb. 29, 2000, H019315). (/bid.) It also derived the amounts taken in each burglary from thetrial court’s order denying appellant’s petition for redesignation. (Exhibit C, p. 5, fn. 3; 5 Cal.App.5th 385.) Since count 3 involved a taking over $950, count 3 does not constitute shoplifting under section 459.5. Thus, the facts relating to that count are not discussed. 5 wentto the back office. (Jbid.) An employee discovered the accomplice inside the office, before the accomplice took anything. (/bid.) ARGUMENT Entry Into a Commercial Establishment During Business Hours to Commit Larceny Constitutes Misdemeanor Shoplifting Under Section 459.5 Where the Theft Ultimately Occurs In An Area That Is Not Open to The Public Where MerchandiseIs Sold, And This Court Should Grant Review of This Case To Resolve A Published Conflict In the Courts of Appeal On AnIssueof Statewide Importance That Is Likely to Recur. Here,thetrial court erred in denying appellant’s petition to redesignate his felony convictions as misdemeanors pursuantto Proposition 47 because the second degree burglary offenses at issue here constituted misdemeanorshoplifting under section 459.5. This is so because appellant’s felony offenses satisfied the elements of section 459.5 as his convictions were based onhis entries into commercial establishmentsthat were open during business hours and involved thefts of property valued at $950 or less. While the majority here held otherwise, the Second District Court of Appeal in Hallam, supra, 3 Cal.App.5th 905 and the dissenting opinionin this case properly recognized that appellant’s conduct constituted misdemeanorshoplifting even though the ultimate thefts occurred in areas that were not open to the public where merchandise was sold. Given the conflict in the appellate courts, this Court should grant review on this issue ofstatutory interpretation and hold that the offense of misdemeanor shoplifting does not require that the taking occurin a specific area of the commercial establishmentthat is open to the public where goods are sold. I. Basic Legal Principles Thebasic rules for statutory construction are well settled. “As in any case involving statutory interpretation, our fundamentaltask hereis to determine the Legislature’s intent so as to effectuate the law’s purpose.” (People v. Murphy (2001) 25 Cal.4th 136, 142.) “We begin with the plain languageofthestatute, affording the wordsof the provision their ordinary and usual meaning and viewing them intheir statutory context, because the language employedin the Legislature’s enactment generally is the most reliable indicator of legislative intent.” (People v. Watson (2007) 42 Cal.4th 822, 828; accord Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) The plain meaning controls if there is no ambiguity in the statutory language. (People v. King (2006) 38 Cal.4th 617, 622.) If, however, “the statutory language may reasonably be given more than oneinterpretation, ‘ “ ‘courts may consider various extrinsic aids, including the purposeofthe statute, the evils to be remedied, thelegislative history, public policy, and 2.999 99the statutory scheme encompassingthestatute. ([bid.; see also People v. Cornett (2012) 53 Cal.4th 1261, 1265.) “ ‘In interpreting a voter initiative ... we apply the sameprinciples that govern statutory construction. [Citation.]’” (People v. Briceno (2004) 34 Cal.4th 451, 459.) “ “On November4, 2014, the voters enacted Proposition 47, “the Safe Neighborhoods and Schools Act” (hereafter Proposition 47), which wentinto effect the next day. (Cal. Const., art. II, § 10, subd. (a).)’ ” (People v. Contreras (2015) 237 Cal.App.4th 868, 889, citation omitted.) Proposition 47 created a new resentencing provision under section 1170.18. (Ud. at p. 891.) Undersection 1170.18, subdivision (f), “[a] person who has completed his or her sentence for a conviction, whetherbytrial or plea, of a felony or felonies who would have been guilty of a misdemeanor underthis act had this act been in effect at the time of the offense, mayfile an application before thetrial court that entered the judgmentof conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.” In addition, Proposition 47 added section 459.5 to the Penal Code. (Contreras, supra, 237 Cal.App.4th at p. 890.) Section 459.5 defines the crime of “shoplifting” and designates the crime as a misdemeanor. Section 459.5 states in relevant part: “. . . shoplifting is defined as entering a commercial establishment with intent to commit larceny while the 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 the intent to commit larceny is burglary.” “Larceny requires the taking of another’s property, with the intent to steal and carry it away. ‘Taking,’ in turn, has two aspects: (1) achieving possession ofthe property, knownas‘caption,’ and (2) carrying the property away,or ‘asportation.’ ” (People v. Gomez (2008) 43 Cal.4th 249, 254-255, citations and footnote omitted.) “[L]arceny requires a ‘trespassory taking,’ which is a taking without the property owner’s consent. [Citation.]” (People v. Williams (2013) 57 Cal.4th 776, 788.) Becausethis claim raises an issue of statutory interpretation, the de novo standard of review applies. (Doe v. Brown (2009) 177 Cal.App.4th 408, 417 [applying de novostandard of review to a claim involving the denial a petition for writ of mandate where the claim was based on an issue of statutory interpretation].) II. Appellant’s Conduct Constituted Misdemeanor Shoplifting Under Section 459.5 As Provided By the Voters In Enacting Proposition 47, and Thus, The Trial Court Erred In Denying His Petition to Redesignate His Felony Convictions as Misdemeanors. In this case, appellant’s conduct constituted misdemeanorshoplifting underthe plain language of section 459.5 since the offenses at issue were based on appellant’s entries into commercial establishments during business hours and involved takings or the intended taking of property not exceeding $950. This is so even thoughthe thefts ultimately occurred in areas of the commercial establishments that were not open to the public where goods weresold, as recognized by the SecondDistrict Court of Appeal in Hallam, supra, 3 Cal.App.5th 905 and bythe dissent in this case. In Hallam, the Second District Court of Appeal held the appellant’s conductin that case constituted misdemeanorshoplifting as defined in section 459.5 where the appellant entered a store through the back entrance and committed theft of an air compressor in an employee rest room. (Hallam, supra, 3 Cal.App.Sth at pp. 908, 911.) In reversing the trial court’s order denying the appellant’s petition for resentencing and to redesignate his offense as misdemeanorshoplifting, the appellate court in that case rejected thetrial court’s reasoning that the statute “ ‘anticipates’ ” entry into an area of a commercial establishment to which the public has access and where merchandiseis sold. (/d. at p. 909.) Instead, the Hallam court stated: “wefind no indication that shoplifting can occur only in specific areas of a commercial establishment,” “[n]or does there appear any requirementthat the business’s commercial activity must be taking place in the area from whichthe theft occurs in order to qualify the offense as shoplifting.” (/d. at p. 912.) The court in Hallam concludedthatthe trial court “added an elementto the offense that is absent from the plain 10 languageofthe statute itself when it determined that appellant’s theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandise is sold.” (/bid.) In holding that the appellant’s conduct constituted misdemeanor shoplifting, the Hallam court found support in the reasoning of Jn re JL. (2015) 242 Cal.App.4th 1108, which held that a high school was not a commercial establishmentas required for shoplifting under section 459.5. (d. at pp. 1115-1116.) The Hallam court noted that the appellate court in JL. “applied its commonsenseinterpretation of “commercial establishment’ not to a single room or area within a commercial venue, but to an entire schoolfacility, and concludedthat ‘[a] public high schoolis not an establishment primarily engaged in the sale of goods and services; rather, it is an establishment dedicated to the education of students.’(Hallam, supra, 3 Cal.App.5th at pp. 912-913.) Furthermore, the Ha//am court also found guidance in this Court’s recent decision in Garcia, supra, 62 Cal.4th 1116. (Hallam, supra, 3 Cal.App.5th at pp. 913-914.) In Garcia, this Court reversed dual burglary convictions on the groundsthat insufficient evidence established a rest room in a commercial establishmentafforded “its occupants a separate and reasonable expectation of protection from intrusion and danger, beyondthat providedby the shopitself.” (Garcia, supra, 62 Cal.4th at p. 1120.) In 11 Garcia, this Court explained: “Where a burglar enters a structure enumerated undersection 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure. Such a separate expectation of privacy and safety may exist where there is proofthat the internal space is owned, leased, occupied, or otherwise possessed by a distinct entity; or that the room or space is secured againstthe rest of the space within the structure, making the room similar in nature to the stand- alone structures enumeratedin section 459.” (/d. at pp. 1119-1120.) This Court continued by pointing out various features—suchas a locked door and signs to prevent unauthorized access—that would indicate an interior room had the same type of enhanced expectation of privacy and security as a separate structure (id. at p. 1129). This Court further noted that these characteristics demonstrate “a separate and objectively reasonable expectation of protection from intrusion,distinct from that provided by the security of the overarchingstructure.” (/d. at p. 1127.) Asin Garcia, the Hallam court concluded that, while the rest room was separate from the main area of the business and was not generally open to the public, the rest room only provided “‘a limited transitory source of 12 399privacy.’ (Hallam, supra, 3 Cal.App.Sth at p. 913, quoting Garcia, supra, 62 Cal.4th at p. 1132.) The appellate court in Hallam notedthat “there appearedto be no obstacles to gaining entry to this ‘employeearea.’ ” (Hallam, supra, 3 Cal.App.4th at pp. 913-914.) The Hallam court concludedthat “[t]he area thus lacked any objective indicationsof a heightened expectation of privacy and security beyond whatthestoreitself provided such that the offense should be deemed burglary rather than shoplifting.” (/d. at p. 914.) Here, in contrast, the majority affirmedthetrial court’s denial of appellant’s petition for resentencing and redesignation, and held his felony convictions did not meet the definition of misdemeanorshoplifting because the thefts ultimately occurred in “separate office areas—areasoff-limits to the general public—within [the] establishment{[s].” (Exhibit C, p. 3; 5 Cal.App.5th 385.) It reasoned that, “by crossing the threshold into these office areas[,] . . . [appellant] and his accomplice exit[ed] the ‘commercial’ part of the establishment and enter[ed] a discrete area where their thefts could not be considered shoplifting.” (/bid.) The majority emphasized the office areas where the ultimate takings and intended taking occurred “were not areas in which goods were boughtandsold.” (Exhibit C, p. 4; 5 Cal.App.5th 385.) The majority opined that appellant had nointerest “in stealing the goods on offer in these establishments” since his accomplice 13 “intrud[ed] into private areas where the employees werelikely to keep their personal belongings. . . and where the business waslikely to store larger amounts of cash.” (/bid.) In his dissenting opinion, Presiding Justice Rushing disagreed with the majority, and concluded appellant’s conduct constituted misdemeanor shoplifting under the plain language of section 459.5. (Exhibit C, pp. 4-5; 5 Cal.App.5th 385.) He reasonedthat the offense of shoplifting was complete once appellant and his accomplice entered the commercial establishments and their conduct inside the establishments merely evidencedtheir intent to commit larceny. (Exhibit C, p. 5; 5 Cal.App.5th 385.) He noted that neither section 459.5 nor any other authority excludes nonpublic areas from the definition of a commercial establishment. (/bid.) ee 6He also opined that a defendant cannot ‘exit’ an establishment by entering an office inside it.” (/bid.) The dissenting opinion also found the reasoning of Hallam, supra, persuasive, and noted it was “squarely on point” with the instant case. Ubid.) Aspersuasively explained by the Second District Court of Appeal in Hallam and the dissenting opinion in this case, the majority here is incorrect in holding that appellant’s conduct did not constitute misdemeanorshoplifting. When appellant entered the commercial establishments with the requisite intent, the shoplifting offenses were 14 complete. There was no “exiting” the commercial part of the establishment by entering an interior, non-commercial part of the establishment, as the majority suggests. Instead, as noted by the dissent, the commission of the thefts in interior office areas merely evidenced appellant’s larcenousintent when he madehisinitial entries into the commercial establishments. Thus, it is irrelevantthat the thefts ultimately occurredin interior office areas. Regardless, even if the offenses were based on appellant’s accomplice’s entries into these separate areas, these interior office areas were part ofthe greater commercial establishment; therefore, the conduct wouldstill constitute misdemeanor shoplifting as the offenses wouldstill be based on entries into commercial establishments. (Hallam, supra, 3 Cal.App.5th at pp. 912-913 [recognizing that “commercial establishment” does not apply to a single room or area within a venue, butto an entire facility]; see also J.L., supra, 242 Cal.App.4th at pp. 1115-1116.) As pointed out by the appellate court in Hallam and bythe dissentin this case, section 459.5 contains no requirementthat the offense of shoplifting occur in an area of a commercial establishmentthat is open to the public where goodsare sold. Moreover, there were no specific characteristics of these office areas that indicated they shared the samelevel of privacy as a non- commercial, stand-alone structure “such that the offense should be deemed burglary rather than shoplifting.” (Hallam, supra, 3 Cal.App.4th at p. 914, 15 relying on Garcia, supra, 62 Cal.4th at pp. 1119-1127.) Thus, even if the offenses were basedon distinct entries into the separate office areas, appellant’s conduct occurred within commercial establishments. Therefore, his conduct met the definition of shoplifting under section 459.5. In sum, since appellant’s burglary convictions were based on entries into commercial establishments during business hours and involved less than $950, the offenses at issue constituted shoplifting under section 459.5. Therefore, the trial court erred in denying appellant’s petition to redesignate these convictions as misdemeanorshoplifting convictions. Hil. This Court Should Grant Review Because The Majority Created A Published Conflict On An Important Issue of Statutory Interpretation That is Likely to Recur. Asoutlined above, the majority opinion creates a published conflict in the courts of appeal regarding an importantissue of statutory interpretation. (See Hallam, supra, 3 Cal.App.5th 905.) Thus, the Court should grant review of this case because this Court’s guidance is necessary to resolve this split in authority on an issue of statewide importance. Moreover, this Court should grant review ofthis case to ensurethat the instant majority opinion doesnotcreate further confusion regarding the definition of shoplifting—a matter likely to recur with frequency in the courts of appeal—norunderminethis Court’s recent holding in Garcia, supra, 62 Cal.4th 1116. 16 CONCLUSION This Court should grant review of this case, reverse the majority opinion, and holdthetrial court erred in denying appellant’s petition for redesignation pursuant to Proposition 47. DATED: December 12, 2016 Respectfully submitted, Kimberly Taylor Attorney for Appellant Mark Anthony Colbert 17 CERTIFICATE OF WORD COUNT I certify that, according to my word processing software, this petition contains 3,670 words excluding the cover page, tables and the case caption on page I. I declare under penalty underthe lawsofthe state of California that this declaration is true and correct. Executed at Alameda, California on December 12, 2016. KIMBERLY TAYLOR Attorney for Appellant Mark Anthony Colbert 18 EXHIBIT A 19 Filed 11/9/16 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H042499 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 206805) V. MARK ANTHONY COLBERT, Defendant and Appellant. Defendant Mark Anthony Colbert appeals from an order denyinghis petition to redesignate certain felony convictions as misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal, Colbert contends the trial court erred in ruling these convictions wereeligible for redesignation.' Wefind no merit to Colbert’s arguments and will affirm the order. I. FACTUAL AND PROCEDURAL BACKGROUND” Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentencedto a total term of two years eight monthsin prison, consecutive to a six year prison term he incurred dueto a robbery he committed in San Mateo County while out on bail on the burglary charges. ' Unspecified statutory references are to the Penal Code. * By order dated November4, 2015, we denied Colbert’s requestto take judicial notice of thetrial record in Santa Clara County Superior Court case No. 206805. On the court’s own motion, wetake judicial notice of this court’s unpublished opinion on the direct appeal from that case, People v. Colbert (Feb. 29, 2000, H019315). A. Facts relating to Count 1 “On December26, 1996, while Susan Welter, the managerof a Shell service station in Campbell, California, saw one Black mantalking to a clerk about lottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who wastalking about lottery tickets. The clerk was unable to positively identify anyone.” (People v. Colbert, supra, HO19135.) “TAbout $300 in cash wastaken [in this burglary].”” B. Facts relating to Count 2 “On December 30, 1996, Maria Ramirez, the manager of a 7-Eleven store in Sunnyvale, saw two menenter the store together and then separate. Onestayed at the front register and purchasedlottery tickets and the other went to a back room, cameout of it, and left the store. The other then left the store. Both men weresix feet tall and were betweenthe ages of 20 to 30 years old. Appellant is under six feet tall and was 40 years old.” (People v. Colbert, supra, H019135.) Thetrial court’s May 12, 2015 order noted that “approximately $318 dollars [sic] wastaken[in this burglary].” C. Facts relating to Count 3 “On January 6, 1997, Chuong Doan was working at a 7-Eleven store in Los Gatos when two Black men entered the store. The taller man asked to use the rest room, which Doan would not allow. While the shorter man boughta lottery ticket, the taller man ‘just walked through.’ Theythen left the store together. Thu Cates, the franchisee, saw a Black manclosing the doorto the office and later found a bank deposit bag missing. > Our prior unpublished opinion did not specify the amountstaken in each burglary, with the exception of count 4 in which no money was taken. With respect to counts 1, 2 and 3 we derive the amounts taken from the trial court’s May 12, 2015 order denying Colbert’s petition for redesignation. 2 Whenthe man saw Thu,he stated that he was looking for the bathroom. She was unable to identify anyone in a photo lineup. Another employee on her way to work saw two Black men,one with lotto tickets in his hand, get into a maroon car with a dent on the side. She was unable to identify anyone in a photo lineup. “However, a month later, Doan identified appellant from the photo lineup, and at the preliminary hearing in May 1997,he identified appellant as a man who had beenin the store. At trial he was unable to positively identify appellant.” (People v. Colbert, supra, H019135.) According to the trial court’s May 12, 2015 order, the bank deposit bag taken in this burglary contained “more than $3000.” D. Facts relating to Count 4 “On January 27, 1997, MohammedElissa,cashier at a 7-Eleven store in Los Gatos, observed two Black men enter the store together and then split up. The shorter one remainedat the cash register and was involvedwith lottery tickets and the taller man proceeded to the wine cooler and ‘vanished.’ Elissa wentto the store office and saw the tall man with a cup of coffee. The man said he was looking for the manager and then he left the area. The tall man told the other to pay for the coffee, which he did. The two menleft the store together. Elissa wrote downthe license plate number of their car. The tall man asked Elissa if there was a problem. No money was missing from the store on January 27. About a weekafter the incident, Elissa identified appellant in a photo lineup as the shorter man.” (People v. Colbert, supra, H019135.) E. Colbert’s petition to redesignate under Proposition 47 On May6, 2015, Colbert petitioned the trial court to redesignate certain of his felony convictions for second degree burglary as misdemeanors pursuantto section 1170.18, subdivision (f). By written order dated May 12, 2015, thetrial court denied Colbert’s petition, finding that he was noteligible for the relief requested. The trial court noted that, in each case, “[Colbert] and an accomplice entered an establishment 3 and, while one of them distracted the cashier . . . , the other snuck into the non-public areas of the building to commit the intended thefts.” As a result, the offenses were based “upon entry into a private .. . office area and not a commercial establishment that was open during business hours” and could not qualify as “shoplifting” under section 459.5. Asan additional basis for denyingrelief, the trial court noted that the amountstolen in count 2 was over $950. Because Colbert and his accomplice employed the same “modus operandi”in each theft, it “strongly suggests that the amount intendedto be taken in each case exceeded $950.” Colbert timely appealed. II. DISCUSSION Colbert argues he wasentitled to redesignation of the three counts at issue because theyall involved theft of less than $950 from a commercial establishment during business hours. According to Colbert, the trial court erred by finding that the thefts were based on entry into “private . . . office area.” He further argues it erred by finding, without any supporting evidence, that Colbert and his companion “intended to take” more than $950 from the stores they entered. A, Overview ofProposition 47 Under Proposition 47, an individual who has completed his or her sentence for a felony conviction can file a petition with the trial court to have the conviction designated as a misdemeanor, so long as that conviction would have qualified as a misdemeanor under Proposition 47 hadits provisions been in effect at the time of the offense. (§ 1170.18, subd. (f).) Ifa petitioner’s applicationsatisfies the requirements set forth undersection 1170.18, subdivision (f), the court “shall designate the felony offense or offenses as a misdemeanor.” (J/d., subd. (g).)* No hearing is necessary in orderto grant an application filed under section 1170.18, subdivision (f). (/d., subd. (h).) * A petitioneris not eligible to have his felonies designated as misdemeanorsif he or she has one or more prior convictions for an offense specified in section 667, 4 Amongthe crimes reduced to misdemeanors by Proposition 47 “are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) 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 hundredfifty dollars ($950). Any other entry into a commercial establishment with intent to commitlarceny is burglary.” B. Analysis It is undisputed that Colbert and his accomplice entered into commercial establishments during regular business hours with larcenousintent. The question is whether separate office areas—areasoff-limits to the general public—within an establishmentare to be considered an undividedpart of that commercial establishment under section 459.5, or are those areas to be treated separately? In other words, by crossing the threshold into these office areas did Colbert and his accomplice exit the “commercial”part of the establishment and enter a discrete area where their thefts could not be considered shoplifting? We think they did. “Giving the term its commonsense meaning, a commercial establishmentis one that is primarily engaged in commerce,thatis, the buying andselling of goods or services. That commonsense understanding accords with dictionary definitions and other legal sources. (Webster’s 3d New Internat. Dict. (2002) p. 456 [‘commercial’ means ‘occupied with or engaged in commerce’ and ‘commerce’ means “the exchangeor buying and selling of commodities esp. on a large scale’]; The Oxford English Reference Dict. subdivision (e)(2)(C)(iv) or for an offense that requires registration undersection 290, subdivision (c). (§ 1170.18, subd. (i).) It is undisputed that these provisions do not apply to Colbert. (2d ed. 1996) p. 290 [defining ‘commerce’as ‘financial transactions, esp. the buying and selling of merchandise, on a large scale’); Black’s Law Dict. (10th ed. 2014) p. 325 [‘commercial’ means‘[o]f, relating to, or involving the buying andselling of goods; mercantile’ ]; see 37 C.F.R. § 258.2 (2015) [copyright regulation defining the term ‘commercial establishment’ as ‘an establishment used for commercial purposes, such as bars, restaurants, private offices, fitness clubs,oil rigs, retail stores, banks and financial institutions, supermarkets, auto and boat dealerships, and other establishments with commonbusiness areas’]; Gov. Code, § 65589.5, subd. (h)(2)(B) [defining ‘neighborhood commercial’ land use as “small-scale general or specialty stores that furnish goods andservicesprimarily to residents of the neighborhood’]; Peoplev. Cochran (2002) 28 Cal.4th 396, 404-405 [quoting dictionary definition of commerce, 999‘ “(t]he buying andselling of goods, especially on a large scale,” in interpreting statutory phrase ‘commercial purpose’].)” (dn re J.L. (2015) 242 Cal.App.4th 1108, 1114.) The office areas from which Colbert and his accomplice stole money were not areas in which goods were bought and sold. There was no merchandise offered for sale in those offices, or at least there is no evidence in the record suggesting there was. Colbert was not interested in stealing the goods on offer in these establishments, otherwise he and his accomplice would have remainedin the area where those goods weredisplayed rather than intruding into the private areas where the employees were likely to keep their personal belongings, such as purses and wallets, and where the business waslikely to store larger amounts ofcash. Based onthis finding, we need not address the alternative basis for the trial court’s denial of Colbert’s petition,i.e., that Colbert intended to take property valued in excess of $950. Assuming we neededto reachthe issue, however, wethink thetrial court’s finding on this question is not supported by the limited evidence available. It is true that the actual amount Colbert wasable to take wasless than $950in three of the four counts.” The most that can said about Colbert’s intent is that he and his accomplice intended to take whatever they could, of whatever value, from the offices they entered. There is no evidence that property valued in excess of $950 was customarily present in those back rooms,let alone that Colbert or his accomplice believed that to be the case. It was therefore a matter of circumstance, not intent, which dictated the value of the property taken. III. DISPOSITION The order denyingthe petition for resentencing is affirmed. >To recap, in count 1, $300 was taken. In count 2, Colbert and his accomplice made off with approximately $318. In count 4, they took nothing, but only because the cashier walked into the back office and interrupted Colbert’s accomplice. 7 I CONCUR: Grover,J. People v. Colbert H042499 Premo,J. VH S A R M A S B P E SI R N e t M e RUSHING,P.J., Dissenting I respectfully dissent. In my view, Colbert’s conduct constituted shoplifting under the plain language of Penal Code section 459.5. Because Colbert has established his eligibility for resentencing under Proposition 47, I would reversethe trial court’s order denying the petition. In each of the four offenses, Colbert and his companion entered a commercial establishment during business hours. They employed the same modusoperandi in each instance: While Colbert distracted the store clerk, Colbert’s companion snuck into a back office to steal cash. In count 1, the companion stole about $300 in cashat a gasstation. In count 2, he stole about $316 in cash at a 7-Eleven convenience store. In count 3, he stole more than $3,000 in cash at another 7-Eleven.' In count4,also at a 7-Eleven, he was interrupted before he could take anything. 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).” (Pen. Code, § 459.5, subd. (a).) There is no dispute that each of the four offenses occurred at a “commercial establishment”—e.g., a gas station and three convenience stores. Thereis also no dispute that Colbert and his companion entered the establishments during business hours. The majority nonetheless reasons that Colbert and his companion did not commit shoplifting because in each instance the companionentered a private back office area to take the property. The majority concludesthat, by entering a private office, Colbert and his companion exited the commercial part of the establishment and entered a discrete area. ' Because the valueofthe cash stolen in count 3 exceeded $950, Colbert does not contend this count constituted shoplifting. I respectfully disagree. Underthe plain language ofthe statute, a defendant commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent. As evidenced by their modus operandi, it is obvious both Colbert and his companionhadthe intent to commit larceny as soon as they set foot in each establishment. At that point, the offense of shoplifting was complete. Whateverthey did after entering the establishment wasrelevant only insofar as it revealed their preexisting intent to commit larceny. Nothing in the statute or any other authority cited by the majority defines a “commercial establishment” to exclude nonpublic areas ofthe structure in question. And I do not think a defendant can “exit” an establishment by entering an office insideit. The Second District Court of Appeal recently considered this issue in Peoplev. Hallam (2016) 3 Cal.App.Sth 905. Hallam stole an air compressor from an employeerest room at a computer store. After pleading no contest to commercial burglary, he petitioned under Proposition 47 to designate the conviction as misdemeanorshoplifting. Thetrial court denied the petition for resentencing on the ground that Hallam did not enter into an area of a commercial establishment to which the public has access and where merchandise is sold. The court of appeal reversed, holding that “we find no indication that shoplifting can occur only in specific areas of a commercial establishment. Nordoes there appear any requirementthat the business’s commercialactivity must be taking place in the area from whichthe theft occurs in order to qualify the offense as shoplifting. Thetrial court thus added an elementto the offense that is absent from the plain languageofthe statute itself when it determined that appellant's theft would qualify as shoplifting only if it occurred in an area of the commercial establishment open to the public where merchandiseis sold.” (/d. at p. 912.) I find this reasoning persuasive and squarely on point with the factsofthis case. Thetrial court here also ruled that the offenses did not constitute shoplifting based on a finding that Colbert intended to take more than $950 from each establishment. But 2 the statute sets the threshold at “the value of the property that is taken or intended to be taken ....” (Pen. Code, § 459.5, subd. (a).) This language sets the threshold at the objective value of the targeted property, not some subjective dollar amountin the defendant’s mind. This makes sense because the defendant may havenospecific monetary value in mind. Here, for example, Colbert and his companion apparently intended to take whatever cash they could find, regardless of whether it was $300 or $3,000. With the exception of count 3, I see no evidence that the property they intended to take was valued at more than $950. Because the value ofthe stolen property in counts 1 and 2 fell within the $950 limit, I conclude those offenses constituted shoplifting. Accordingly, I would reverse the order denying the petition and remand for further proceedings to determine Colbert’s eligibility on count 4 andhis risk of danger to public safety. RUSHING,P.J. People v. Colbert H042499 EXHIBIT B 31 ORIGINAL CERTIFIED FOR PUBLICATION ee 3 [IN THE COURT OF APPEAL OF THE STATE OF CALIFOBLA t "ET v ra SIXTH APPELLATE DISTRICT THE PEOPLE, H042499 (Santa Clara County 8Y¥-_-__> Plaintiff and Respondent, Super. Ct. No. 206805) Vv. ORDER MODIFYING OPINION NO CHANGEIN JUDGMENT MARK ANTHONY COLBERT, Defendant and Appellant. BY THE COURT: It is ordered that the opinion filed herein on November 9, 2016, be modified in the following particulars: : On page |, the first paragraph, the last sentenceis modified to read: “On appeal, Colbert contendsthetrial court erred in ruling these convictions wereineligible for redesignation.” There is no change in judgment. Dated: NOV 18 2016 (Pees | \Y¥' Premo,PA RashIP.A] | \ Grover,J.SC EXHIBIT C 33 People v. Colbert, 5 Cal.App.5th 385 (2016) 209 Cal.Rptr.3d 822 ee 5 Cal.App.5th 385 Court of Appeal, Sixth District, California. The PEOPLE,Plaintiff and Respondent, Vv. Mark Anthony COLBERT,Defendant and Appellant. H042499 | Filed 11/9/2016 | As Modified 11/18/2016 Synopsis Background: Defendant was convicted in the Superior Court, Santa Clara County, No. 206805, of four felony counts of second degree burglary. Defendant petitioned for recall of sentence under Safe Neighborhoods and Schools Act. The Superior Court, Linda R. Clark, J., denied petition. Defendant appealed. [Holding:] The Court of Appeal, Premo, J., held that defendant's offenses were not based on entries into “commercial establishments” as required for misdemeanorshoplifting. Affirmed. Rushing,P.J., filed dissenting opinion. West Headnotes(2) [1] Burglary «= Character of building Larceny w* Larceny from shop,store, or other building The offenses that defendant committed by distracting conveniencestore cashiers while an accomplice entered the store managers' offices to search for moneyto steal were not based on entries into “commercial establishments,” and thus defendant's offenses were felony burglary rather than misdemeanor shoplifting, since the offenses were based on the accomplice's entries into the private office areas. Cal. Penal Code §§ 459, 459.5(a). Cases that cite this headnote [2] Larceny «* Larceny from shop,store, or other building Underthe shoplifting statute, a “commercial establishment” is one that is primarily engaged in commerce,thatis, the buying and selling of goodsorservices. Cal. Penal Code § 459.S(a). See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 306 et seq. Cases that cite this headnote Trial Court: Santa Clara County Superior Court, Super. Ct. No. 206805, Trial Judge: Hon. Linda R. Clark. (Superior Court No. 206805) Attorneys and Law Firms Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, René A. Chacon, Supervising Deputy Attorney General, Victoria Ratnikova, Deputy Attorney General, for Plaintiff/ Respondent. Under appointment by the Court of Appeal, Kimberly Taylor, for Defendant/Appellant. Opinion Premo,J. Defendant Mark Anthony Colbert appeals from an order denying his petition to redesignate certain felony CRSA People v. Colbert, 5 Cal.App.5th 385 (2016) 209 Cal.Rptr.3d822 convictions as misdemeanors under Proposition 47, the Safe Neighborhoods and Schools Act. On appeal, Colbert contendsthe trial court erred in ruling these convictions 1 wereineligible for redesignation. Wefind no merit to Colbert's arguments and will affirm the order. I. FACTUAL AND PROCEDURAL BACKGROUND” Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six year prison term he incurred due to a robbery he committed in San Mateo County while out on bail on the burglary charges. A. Facts relating to Count 1 “On December26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk aboutlottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone.” (People v. Colbert, supra, H019135.) “[A]bout $300 in cash was taken[in this burglary].” 3 B. Facts relating to Count 2 “On December 30, 1996, Maria Ramirez, the managerof a 7-Eleven store in Sunnyvale, saw two men enter the store together and then separate. One stayed at the front register and purchased lottery tickets and the other went to a back room, cameoutofit, and left the store. The other then left the store. Both men were six feet tall and were between the ages of 20 to 30 years old. Appellant is under six feet tall and was 40 years old.” (People v. Colbert, supra, H019135.) The trial court's May 12, 2015 order noted that “approximately $318 dollars [sic] was taken [in this burglary].” C. Facts relating to Count 3 “On January 6, 1997, Chuong Doan was workingat a 7— Eleven store in Los Gatos when two Black men entered the store. The taller man asked to use the rest room, which Doan would not allow. While the shorter man bought a lottery ticket, the taller man ‘just walked through.’ They then left the store together. Thu Cates, the franchisee, saw a Black manclosing the doorto the office and later found a bank deposit bag missing. When the man saw Thu,he stated that he was looking for the bathroom. She was unable to identify anyone in a photo lineup. Another employee on her way to work saw two Black men, one with lotto tickets in his hand, get into a maroon car with a dent on the side. She was unable to identify anyone in a photo lineup. ‘“‘However, a month later, Doan identified appellant from the photo lineup, and at the preliminary hearing in May 1997, he identified appellant as a man who had been in the store. At trial he was unable to positively identify appellant.” (People v. Colbert, supra, H019135.) Accordingto thetrial court's May 12, 2015 order, the bank deposit bag taken in this burglary contained “more than $3000.” D. Facts relating to Count 4 “On January 27, 1997, Mohammed Elissa, cashier at a 7-Eleven store in Los Gatos, observed two Black men enter the store together and then split up. The shorter one remainedat the cash register and was involved with lottery tickets and the taller man proceeded to the wine cooler and ‘vanished.’ Elissa went to the store office and saw the tall man with a cup of coffee. The man said he was looking for the managerandthenheleft the area. Thetall man told the other to pay for the coffee, which he did. The two men left the store together. Elissa wrote down the license plate numberoftheir car. The tall man asked Elissa if there was a problem. No money was missing from the store on January 27. About a week after the incident, Elissa identified appellant in a photo lineup as the shorter man.” (People v. Colbert, supra, H019135.) E. Colbert's petition to redesignate under Proposition 47 iutSenLGRe People v. Colbert, 5 Cal.App.5th 385 (2016) 209 Cal.Rptr.3d 822 On May 6, 2015, Colbert petitioned the trial court to redesignate certain of his felony convictions for second degree burglary as misdemeanors pursuant to section 1170.18, subdivision (f). By written order dated May 12, 2015, the trial court denied Colbert's petition,finding that he wasnoteligible for the relief requested. The trial court noted that, in each case, “[Colbert] and an accomplice entered an establishment and, while one of themdistracted the cashier..., the other snuck into the non-public areas of the building to commit the intended thefts.” As a result, the offenses were based “upon entry into a private ... office area and not a commercial establishment that was open during business hours” and could not qualify as “shoplifting” under section 459.5. As an additional basis for denyingrelief, the trial court noted that the amount stolen in count 2 was over $950. Because Colbert and his accomplice employed the same “modusoperandi”in each theft, it “strongly suggests that the amountintended to be taken in each case exceeded $950.” Colbert timely appealed. II. DISCUSSION Colbert argues he wasentitled to redesignation ofthe three countsat issue because theyall involved theft of less than $950 from a commercial establishment during business hours. According to Colbert, the trial court erred by finding that the thefts were based on entry into “private... office area.” He further arguesit erred by finding, without any supporting evidence, that Colbert and his companion “intended to take” more than $950 from the stores they entered. A. Overview ofProposition 47 Under Proposition 47, an individual who has completed his or her sentence for a felony conviction can file a petition with the trial court to have the conviction designated as a misdemeanor, so long as that conviction would have qualified as a misdemeanor under Proposition 47 had its provisions been in effect at the time of the offense. (§ 1170.18, subd. (f).) If a petitioner's application satisfies the requirements set forth under section 1170.18, subdivision (f), the court “shall designate the felony offense or offenses as a misdemeanor.” (/d., subd. (g).)* No hearing is necessary in order to grant an application filed under section 1170.18, subdivision (f). U/d., subd. (h).) Among the crimes reduced to misdemeanors by Proposition 47 “are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879, 191 Cal.Rptr.3d 295.) 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 hundredfifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.” B. Analysis [1] It is undisputed that Colbert and his accomplice entered into commercial establishments during regular business hours with larcenous intent. The question is whether separate office areas—areas off-limits to the general public—within an establishment are to be considered an undivided part of that commercial establishment under section 459.5, or are those areas to be treated separately? In other words, by crossing the threshold into these office areas did Colbert and his accomplice exit the “commercial” part of the establishment and enter a discrete area wheretheir thefts could not be considered shoplifting? We think they did. [2] “Giving the term its commonsense meaning, a commercial establishmentis one that is primarily engaged in commerce, that is, the buying andselling of goods or services. That commonsense understanding accords with dictionary definitions and other legal sources. (Webster's 3d New Internat. Dict. (2002) p. 456 [‘commercial’ means ‘occupied with or engaged in commerce’ and ‘commerce’ means‘the exchange or buying andselling of commodities esp. on large scale’]; The Oxford English Reference Dict. (2d ed. 1996) p. 290 [defining ‘commerce’ as ‘financial transactions, esp. the buying and selling of merchandise, on a large scale’]; Black's Law Dict. (10th ed. 2014) p. 325 [‘commercial’ means ‘fo]f, relating to, or involving PAOSINUERY O2 People v. Colbert, 5 Cal.App.5th 385 (2016) 209 Cal.Rptr.3d 822 the buying and selling of goods; mercantile’]; see 37 C.F.R. § 258.2 (2015) [copyright regulation defining the term ‘commercial establishment’ as ‘an establishment used for commercial purposes, such asbars, restaurants, private offices, fitness clubs, oil rigs, retail stores, banks and financial institutions, supermarkets, auto and boat dealerships, and other establishments with common business areas]; Gov. Code, § 65589.5, subd. (h)(2)(B) [defining ‘neaghborhood commercial’ land use as “small- scale general or specialty stores that furnish goods and services primarily to residents of the neighborhood’); People v. Cochran (2002) 28 Cal.4th 396, 404-405 [121 Cal.Rptr.2d 595, 48 P.3d 1148] [quoting dictionary definition of commerce, ‘ “[t]he buying andselling of goods, especially on a large scale,” ’ in interpreting statutory phrase ‘commercial purpose’].)” Un re JL. (2015) 242 Cal.App.4th 1108, 1114, 195 CalRptr.3d 482.) The office areas from which Colbert and his accomplice stole money were not areas in which goods were bought and sold. There was no merchandise offered for sale in those offices, or at least there is no evidence in the record suggesting there was. Colbert wasnotinterestedin stealing the goods on offer in these establishments, otherwise he and his accomplice would have remainedin the area where those goodswere displayed rather than intruding into the private areas where the employees werelikely to keep their personal belongings, such as purses and wallets, and where the business waslikely to store larger amounts of cash. Based onthis finding, we need not address the alternative basis for the trial court's denial of Colbert's petition, i.e., that Colbert intended to take property valued in excess of $950. Assuming we needed to reach the issue, however, we think thetrial court's finding on this question is not supported by the limited evidence available. It is true that the actual amount Colbert was able to take was less than $950 in three of the four counts.” The most that can said about Colbert's intent is that he and his accomplice intended to take whatever they could, of whatever value, from the offices they entered. There is no evidence that property valued in excess of $950 was customarily present in those back rooms, let alone that Colbert or his accomplice believed that to be the case.It wastherefore a matter of circumstance, not intent, which dictated the value of the property taken. Ill. DISPOSITION The order denying the petition for resentencing is affirmed. ICONCUR: Grover, J. RUSHING,P.J., Dissenting I respectfully dissent. In my view, Colbert's conduct constituted shoplifting under the plain language of Penal Code section 459.5. Because Colbert has established his eligibility for resentencing under Proposition 47, I would reverse the trial court's order denyingthe petition. In each of the four offenses, Colbert and his companion entered a commercial establishment during business hours. They employed the same modus operandi in each instance: While Colbert distracted the store clerk, Colbert's companion snuckinto a back office to steal cash. In count 1, the companionstole about $300 in cash at a gas station. In count2, he stole about $316 in cash at a 7-Eleven conveniencestore. In count 3, he stole more than $3,000 in cash at another 7—Eleven. ' In count 4, also at a 7-Eleven, he was interrupted before he could take anything. 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).” (Pen. Code, § 459.5, subd. (a).) There is no dispute that each of the four offenses occurred at a “commercial establishment”—.g., a gas station and three convenience stores. There is also no dispute that Colbert and his companion entered the establishments during business hours. The majority nonetheless reasons that Colbert and his companion did not commit shoplifting because in each instance the companion entered a private back office area to take the property. The majority concludes that, BHOSLE© Peoplev. Colbert, 5 Cal.App.5th 385 (2016) 209 Cal.Rptr.3d 822 by entering a private office, Colbert and his companion exited the commercial part of the establishment and entered a discrete area. I respectfully disagree. Under the plain language of the statute, a defendant commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent. As evidenced by their modusoperandi,it is obvious both Colbert and his companion hadthe intent to commit larceny as soon as they set foot in each establishment. At that point, the offense of shoplifting was complete. Whatever they did after entering the establishment was relevant only insofar as it revealed their preexisting intent to commit larceny. Nothing in the statute or any other authority cited by the majority defines a “commercial establishment”to exclude nonpublic areasof the structure in question. And I do not think a defendant can “exit” an establishment by entering an office insideit. The SecondDistrict Court of Appeal recently considered this issue in People v. Hallam (2016) 3 Cal.App.5th 905, 207 Cal.Rptr.3d 812. Hallam stole an air compressor from an employee rest room at a computer store. After pleading no contest to commercial burglary, he petitioned under Proposition 47 to designate the conviction as misdemeanor shoplifting. The trial court denied the petition for resentencing on the ground that Hallam did not enter into an area of a commercial establishment to whichthe public has access and where merchandiseis sold. The court of appeal reversed, holding that “we find no indication that shoplifting can occur only in specific areas of a commercial establishment. Nor does there appear any requirementthat the business's commercial activity must be taking place in the area from which the theft occurs in order to qualify the offense as shoplifting. The trial court thus added an elementto the offense that is absent from the plain language ofthe statute itself when it determined that appellant's theft would qualify as shoplifting only ifit occurred in an area of the commercial establishment open to the public where merchandise is sold.” Ud at p. 912, 207 Cal.Rptr.3d 812.) I find this reasoning persuasive and squarely on point with the facts ofthis case. Thetrial court here also ruled that the offenses did not constitute shoplifting based on a finding that Colbert intended to take more than $950 from each establishment. But the statute sets the threshold at “the value of the property that is taken or intended to be taken....” (Pen. Code, § 459.5, subd. (a).) This languagesets the threshold at the objective value of the targeted property, not some subjective dollar amountin the defendant's mind. This makes sense because the defendant may have no specific monetary value in mind. Here, for example, Colbert and his companion apparently intended to take whatever cash they could find, regardless of whether it was $300 or $3,000. With the exception of count 3, I see no evidence that the property they intended to take was valued at more than $950. Because the value of the stolen property in counts 1 and 2 fell within the $950 limit, I conclude those offenses constituted shoplifting. Accordingly, I would reverse the order denying the petition and remandfor further proceedings to determine Colbert's eligibility on count 4 and his risk of danger to public safety. All Citations 5 Cal.App.Sth 385, 209 Cal.Rptr.3d 822 Footnotes 1 Unspecified statutory references are to the Penal Code. 2 By order dated November4, 2015, we denied Colbert's request to take judicial notice of the trial record in Santa Clara County Superior Court case No. 206805. On the court's own motion, we take judicial notice of this court's unpublished opinion on the direct appeal from that case, People v. Colbert (Feb. 29, 2000, HO19315). 3 Our prior unpublished opinion did not specify the amounts taken in each burglary, with the exception of count 4 in which no money wastaken. With respect to counts 1, 2 and 3 we derive the amounts taken from thetrial court's May 12, 2015 order denying Colbert's petition for redesignation. Rae People v. Colbert, 5 Cal-App.5th 385 (2016) 209 Cal.Rptr.3d 822 4 A petitioner is noteligible to have his felonies designated as misdemeanorsif he or she has one or moreprior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense that requires registration under section 290, subdivision (c). (§ 1170.18, subd. (i).) It is undisputed that these provisions do not apply to Colbert. 5 To recap, in count 1, $300 wastaken. In count 2, Colbert and his accomplice madeoff with approximately $318. In count 4, they took nothing, but only because the cashier walked into the back office and interrupted Colbert's accomplice. 1 Because the value of the cash stolen in count 3 exceeded $950, Colbert does not contend this count constituted shoplifting. End of Document © 2016 Thomson Reuters. Noclaim to original U.S. Government Works. ‘ogSTL PROOF OF SERVICE I declare that I am overthe age of 18, not a party to this action and my business address is 1600 Broadway, Suite 300, Oakland, CA 94612. On the date shownbelow,I served the within APPELLANT’S PETITION FOR REVIEWtothe following parties hereinafter named by: X_ BY ELECTRONIC TRANSMISSION- I transmitted a PDF version of this documentby electronic mail to the party(s) identified on the attached servicelist under the e-mail address(es) indicated. Attorney General’s Office Sixth District Appellate Program 455 Golden Gate Avenue 95 S. Market Street, Ste. 570 Suite 11000 San Jose, CA 95113 San Francisco, CA 94102-7004 servesdap@sdap.org [attorney for respondent] DOCKETING6DCASFAWT@DOJ.CA.GOV X_ BY MAIL — Placing a true copythereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Alameda, California, addressed as follows: Sixth District Court of Appeal District Attorney’s Office 333 W.Santa Clara St., Ste. 1060 70 W. Hedding Street, West Wing San Jose, CA 95113 San Jose, CA 95110 Superior Court, Appeals Clerk Mark Anthony Colbert (AT6246) 191 N. First Street Deuel VocationalInstitution San Jose, CA 95113 P.O. Box 600 Tracy, CA 95378 I declare under penalty of perjury the foregoingis true and correct. Executed this 13th day of December, 2016, at Alameda, California. JONATHAN TAYLOR 40