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STEVEN L. HARMON
Public Defender
County of Riverside
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State Bar No. SSSSSS
Deputy Public Defender
4200 Orange Street
Riverside, CA 92501
Telephone: (951) 955-6000
Attorney for Defendant
DDD
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF RIVERSIDE
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PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff,
vs.
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DDD,
Defendant.
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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
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support of his petition for resentencing pursuant to Penal Code section 1170.18,
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subdivision (a). He is currently serving a sentence as the result of a felony conviction of
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Penal Code1 section 459, based on an offense which, if committed today, would be
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punishable as a violation of Section 459.5, a misdemeanor
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STATEMENT OF FACTS
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Defendant was convicted by plea of a violation of Section 459 and petitioned for
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resentencing pursuant to Section 1170.18. Based on the charging document, the offense
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involved Defendant entering a commercial building, specifically, a BBB, during business
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hours for the purpose of committing larceny of property valued at less than $950.
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Subsequent statutory references are to the Penal Code.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
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PROSECUTION OF THE OFFENSE DESCRIBED HEREIN AS A VIOLATION
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OF PENAL CODE SECTION 459 IS PROHIBITED
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On November 4, 2014, the voters approved Proposition 47, the Safe Neighborhoods
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And Schools Act. The Act’s purpose was two-fold: to reduce the number of inmates
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populating state and local detention facilities by reclassifying various simple drug
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possession and low level property crime offenses as misdemeanors and to generate savings
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which designated to fulfill various public safety purposes. The Act is to be “liberally
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construed to effectuate its purposes.” Among the changes made by Proposition 47 was the
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enactment of section 459.5, which provides:
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Notwithstanding Section 459, shoplifting is defined as entering a
commercial establishment with intent to commit larceny2 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
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section 459. “Any act of shoplifting as defined in subdivision (a) shall be charged as
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shoplifting. No person who is charged with shoplifting may also be charged with burglary
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or theft of the same property.” (§ 459, subd. (b), emphasis added.) The District Attorney
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opposes Defendant’s petition for resentencing, taking the position that a BBB cannot be
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considered a “commercial establishment” because it is not a retail store. This position
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2“Larceny”incorporates
theft by asportation and theft by trickery. (People v. Davis (1998)
19 Cal.4th 301, 304, 305, fn. 3.)
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violates the mandate that Proposition 47 be liberally construed to effectuate its purposes as
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well as the fundamental rules of statutory interpretation.
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The first task of statutory construction is to “look to the words of the statute
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itself.”(People v. Cardwell (2012) 203 Cal.App.4th 876, 881.) The court must “give the
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words of the statute ‘a plain and commonsense meaning’ unless the statute specifically
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defines the words to give them a special meaning.” (Ibid. [citations omitted]; Haswsan v.
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Mercy American River Hospital (2003) 31 Cal. 4th 709, 720 [interpreting statutory
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language in accordance with its usual and ordinary meaning]..) “The plain meaning
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controls if there is no ambiguity in the statutory language.” (People v. Cornett (2012) 53
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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
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reasonably be misunderstood, including the phrase “commercial establishment,”
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understood as incorporating any business involved in the buying and selling of goods and
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services. (See http://www.merriam-webster.com/dictionary/commercial; see Wasatch
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Property Management v. Degrate (2005) 35 Cal. 4th 1111, 1121-1122 [“When attempting
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to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the
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dictionary definition of that word”].) Without any need for a refined statutory definition,
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California courts have readily recognized this for decades. (See e.g. Sundance Saloon, Inc.
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v. City of San Diego (1989) 213 Cal.App. 3d 807 [cabaret is a commercial establishment
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for purpose of Municipal Code ordinances restricting hours of operation]; City of Velljo v.
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Adult Books (1985) 167 Cal.App. 3d 1169 [“commercial establishment” actually used in
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defining “adult bookstore” for purposes of local zoning].)
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The phrase “commercial establishment” is not new to California law. It has existed
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in the context of Section 667.61 since the statute was enacted in 1994, without any
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statutory definition, and over the past twenty years no California appellate court has had
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occasion to interpret its meaning, because everyone knows what it means. The phrase
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“commercial establishment” is ordinarily understood as encompassing any type of business
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involved in the buying or selling of goods and/or services, including a BBB.
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But even if the phrase “commercial establishment” could reasonably be construed as
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ambiguous, there is no firm evidence from which it can be determined that the Voters,
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when adopting the initiative, must have intended that Section 459.5 applies only to
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burglaries of retail stores. While the title assigned to Section 459.5, “Shoplifting” is
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consistent with the interpretation advanced by the People3, there is no other supporting
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evidence of such a restrictive reading of this new crime included in the Findings and
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Declarations of the Act, or the ballot materials. Moreoever, while it is true that the Act
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lessened the degree of offense and punishment for low level theft-by-taking crimes, most
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likely to occur in a retail store, they similarly modified counterfeiting and forgery crimes (§
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473, subd. (b)), most likely to occur in commercial establishments other than retail stores.4
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Finally, the use of the broad phrase “commercial establishment” in lieu of the restrictive
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phrase “retail store” simply cannot be ignored. Here, as with all penal statutes, if the court
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determines that there are two reasonable constructions of Section 459.5, the one most
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favorable to the defendant must be adopted. (In re Christian S. (1994) 7 Cal. 4th 768, 780.)
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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.)
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Prior to the adoption of Proposition 47, these theft and forgery crimes could be charged as
a misdemeanor or as a felony.
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CONCLUSION
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After the adoption of Proposition 47 and the enactment of Section 459.5, a person
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walks into any commercial establishment, intending to commit larceny by asportation or
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by fraud, of goods, property, or cash valued at less than nine hundred and fifty dollars
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cannot be punished under Section 459 and can be punished only under Section 459.5.
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Defendant respectfully requests that this court grant him the relief requested.
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Dated: __________________
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Respectfully submitted,
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STEVEN L. HARMON
Public Defender
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By:
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__________________________
AAA
Deputy Public Defender
Attorney for Defendant
DDD
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