Steven L. Harmon

STEVEN L. HARMON

Public Defender

County of Riverside

AAA

State Bar No. SSSSSS

Deputy Public Defender

4200 Orange Street

Riverside, CA 92501

Telephone: (951) 955-6000

Attorney for Defendant

DDD

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF RIVERSIDE

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
DDD,
Defendant. / )
)
)
)
)
)
)
)
)
)
)
)
) / Case No.:
POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S PETITION FOR RESENTENCING PURSUANT TO SECTION 1170.18
Date:
Time:
Dept.:

Defendant, DDD, respectfully submits the following points and authorities in support of his petition for resentencing pursuant to Penal Code section 1170.18, subdivision (a). He is currently serving a sentence as the result of a felony conviction of Penal Code[1] section 459, based on an offense which, if committed today, would be punishable as a violation of Section 459.5, a misdemeanor

STATEMENT OF FACTS

Defendant was convicted by plea of a violation of Section 459 and petitioned for resentencing pursuant to Section 1170.18. Based on the charging document, the offense involved Defendant entering a commercial building, specifically, a BBB, during business hours for the purpose of committing larceny of property valued at less than $950.

MEMORANDUM OF POINTS AND AUTHORITIES

PROSECUTION OF THE OFFENSE DESCRIBED HEREIN AS A VIOLATION OF PENAL CODE SECTION 459 IS PROHIBITED

On November 4, 2014, the voters approved Proposition 47, the Safe Neighborhoods And Schools Act. The Act’s purpose was two-fold: to reduce the number of inmates populating state and local detention facilities by reclassifying various simple drug possession and low level property crime offenses as misdemeanors and to generate savings which designated to fulfill various public safety purposes. The Act is to be “liberally construed to effectuate its purposes.” Among the changes made by Proposition 47 was the enactment of section 459.5, which provides:

Notwithstanding Section 459, shoplifting is defined as entering a commercial establishment with intent to commit larceny[2] while that establishment is open during regular business hours, where the value of the property that is taken or intended to be taken does not exceed nine hundred fifty dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with 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 may be punished pursuant to subdivision (h) of Section 1170.

(§459.5, subd. (a).)

Subdivision (b) of section 459 prohibits the prosecution of such offenses under section 459. “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (§ 459, subd. (b), emphasis added.) The District Attorney opposes Defendant’s petition for resentencing, taking the position that a BBB cannot be considered a “commercial establishment” because it is not a retail store. This position violates the mandate that Proposition 47 be liberally construed to effectuate its purposes as well as the fundamental rules of statutory interpretation.

The first task of statutory construction is to “look to the words of the statute itself.”(People v. Cardwell (2012) 203 Cal.App.4th 876, 881.) The court must “give the words of the statute ‘a plain and commonsense meaning’ unless the statute specifically defines the words to give them a special meaning.” (Ibid. [citations omitted]; Haswsan v. Mercy American River Hospital (2003) 31 Cal. 4th 709, 720 [interpreting statutory language in accordance with its usual and ordinary meaning]..) “The plain meaning controls if there is no ambiguity in the statutory language.” (People v. Cornett (2012) 53 Cal.4th 1261, 1265, quoting People v. King (2006) 35 Cal. 4th 617, 622.)

The language of section 459.5 is clear and unambiguous. Its plain language cannot reasonably be misunderstood, including the phrase “commercial establishment,” understood as incorporating any business involved in the buying and selling of goods and services. (See http://www.merriam-webster.com/dictionary/commercial; see Wasatch Property Management v. Degrate (2005) 35 Cal. 4th 1111, 1121-1122 [“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word”].) Without any need for a refined statutory definition, California courts have readily recognized this for decades. (See e.g. Sundance Saloon, Inc. v. City of San Diego (1989) 213 Cal.App. 3d 807 [cabaret is a commercial establishment for purpose of Municipal Code ordinances restricting hours of operation]; City of Velljo v. Adult Books (1985) 167 Cal.App. 3d 1169 [“commercial establishment” actually used in defining “adult bookstore” for purposes of local zoning].)

The phrase “commercial establishment” is not new to California law. It has existed in the context of Section 667.61 since the statute was enacted in 1994, without any statutory definition, and over the past twenty years no California appellate court has had occasion to interpret its meaning, because everyone knows what it means. The phrase “commercial establishment” is ordinarily understood as encompassing any type of business involved in the buying or selling of goods and/or services, including a BBB.

But even if the phrase “commercial establishment” could reasonably be construed as ambiguous, there is no firm evidence from which it can be determined that the Voters, when adopting the initiative, must have intended that Section 459.5 applies only to burglaries of retail stores. While the title assigned to Section 459.5, “Shoplifting” is consistent with the interpretation advanced by the People[3], there is no other supporting evidence of such a restrictive reading of this new crime included in the Findings and Declarations of the Act, or the ballot materials. Moreoever, while it is true that the Act lessened the degree of offense and punishment for low level theft-by-taking crimes, most likely to occur in a retail store, they similarly modified counterfeiting and forgery crimes (§ 473, subd. (b)), most likely to occur in commercial establishments other than retail stores.[4] Finally, the use of the broad phrase “commercial establishment” in lieu of the restrictive phrase “retail store” simply cannot be ignored. Here, as with all penal statutes, if the court determines that there are two reasonable constructions of Section 459.5, the one most favorable to the defendant must be adopted. (In re Christian S. (1994) 7 Cal. 4th 768, 780.)

/ / / /

CONCLUSION

After the adoption of Proposition 47 and the enactment of Section 459.5, a person walks into any commercial establishment, intending to commit larceny by asportation or by fraud, of goods, property, or cash valued at less than nine hundred and fifty dollars cannot be punished under Section 459 and can be punished only under Section 459.5. Defendant respectfully requests that this court grant him the relief requested.

Dated: ______

Respectfully submitted,

STEVEN L. HARMON

Public Defender

By: ______

AAA

Deputy Public Defender

Attorney for Defendant

DDD

[1]Subsequent statutory references are to the Penal Code.

[2]“Larceny”incorporates theft by asportation and theft by trickery. (People v. Davis (1998) 19 Cal.4th 301, 304, 305, fn. 3.)

[3]A statute’s heading may properly be considered in determining legislative intent and is entitled to “considerable weight.” (People v. Hull (1991) 1 Cal. 4th 266, 272.)

[4]Prior to the adoption of Proposition 47, these theft and forgery crimes could be charged as a misdemeanor or as a felony.