People v. Holm , 3 Cal. App. 5th 141 ( 2016 )

Filed 9/7/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A143873
v.
JON F. HOLM, (Sonoma County
Super. Ct. No. SCR636031)
Defendant and Appellant.
INTRODUCTION
After defendant Jon Holm was convicted of second degree burglary, he filed a
petition under Proposition 471 seeking to reduce his offense to misdemeanor shoplifting
under Penal Code section 459.5.2 The trial court denied his petition on the ground the
private golf and country club from which he stole a flat screen television and golf balls
was not a “commercial establishment” within the meaning of that section. We conclude
otherwise and reverse and remand.
BACKGROUND
In 2013, defendant was charged with burglary, receiving stolen property, and false
impersonation.3 (§§ 459, 496, subd. (a), 529.) He pleaded no contest to second degree
burglary, a felony, and to impersonation, a misdemeanor. He admitted taking a
1
The voters enacted Proposition 47, the Safe Neighborhood and Schools Act, on
November 4, 2014, effective the next day. (Cal. Const., art. II, § 10, subd. (a); In re J.C.
(2016) 246 Cal. App. 4th 1462, 1469 [201 Cal. Rptr. 3d 731].)
2
All further statutory references are to the Penal Code unless otherwise indicated.
3
The impersonation offense, unrelated to the burglary, was based on defendant
using a friend’s driver’s license to check into a motel.
1
television, valued at $662.23, and three boxes of golf balls, valued at $50 each, from the
Santa Rosa Golf and Country Club.
The following year, in November 2014, defendant filed a Proposition 47 petition
for resentencing under section 1170.18. At the hearing, Don Florriani, the general
manager and CEO of the country club, testified regarding the operations of the club and
the items taken. The club is open to members and their guests, but not to the general
public. The club’s facilities include a pro shop, two restaurants, men’s and women’s
locker rooms, a golf course and banquet facilities. The club also displays art work by
local artists, which members and their guests may purchase. Members of the general
public, however, can rent the banquet facilities.
Florriani testified the stolen television was worth “$650, $670” and at “least three
boxes” of personalized golf balls were taken, valued at $50 each. In addition, a painting
was taken, although it was not mentioned in the complaint. The artist testified the
painting was worth $2,000.
In denying defendant’s petition, the trial court stated: “The petition is going to be
denied not for the amount, though I think the amount is probably over [$]950; it hasn’t
been proven. I don’t think that the People have carried their burden of showing that this
was over [$]950. But this is not a commercial establishment, in my opinion, within the
meaning of Prop 47. This is a private club that you have to be a member. Mr. Holm,
according to the presentence report, was not a member of the club at the time that he was
actually expelled in 2011, so he’s not a member within the meaning of Penal Code
section [1170.18], for that reason this is denied.”
DISCUSSION
The sole issue on appeal is whether, under the new shoplifting statute established
by Proposition 47, a private golf and country club is a “commercial establishment,”
allowing defendant’s felony conviction of second degree burglary to be reduced to
misdemeanor shoplifting.
2
“Proposition 47, which is codified in section 1170.18,[4] reduced the penalties for a
number of offenses. Among those crimes reduced 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. Shoplifting
is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds
$950.” (People v. Sherow (2015) 239 Cal. App. 4th 875, 879 [191 Cal. Rptr. 3d 295].)
Section 459.5 specifies: “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 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).)
“ ‘ “In interpreting a voter initiative . . . we apply the same principles that govern
statutory construction. [Citation.] Thus, ‘we turn first to the language of the statute,
4
Section 1170.18 provides in pertinent part: “Upon receiving a petition under
subdivision (a), the court shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s
felony sentence shall be recalled and the petitioner resentenced to a misdemeanor
pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or
Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been
amended or added by this act, unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety. In
exercising its discretion, the court may consider all of the following: [¶] (1) The
petitioner’s criminal conviction history, including the type of crimes committed, the
extent of injury to victims, the length of prior prison commitments, and the remoteness of
the crimes. [¶] (2) The petitioner’s disciplinary record and record of rehabilitation while
incarcerated. [¶] (3) Any other evidence the court, within its discretion, determines to be
relevant in deciding whether a new sentence would result in an unreasonable risk of
danger to public safety.”
3
giving the words their ordinary meaning.’ [Citation.]” ’ [Citations.] ‘ “The statutory
language must also be construed in the context of the statute as a whole and the overall
statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is
ambiguous, ‘we refer to other indicia of the voters’ intent, particularly the analyses and
arguments contained in the official ballot pamphlet.’ [Citation.]” [Citation.] In other
words, “our primary purpose is to ascertain and effectuate the intent of the voters who
passed the initiative measure.” ’ [Citation.] Our review is de novo. [Citation.]” (In re
J.L. (2015) 242 Cal. App. 4th 1108, 1114–1114 [195 Cal. Rptr. 3d 482] (J.L.).)
Proposition 47 provides: “This act shall be liberally construed to effectuate its
purposes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 18,
p. 74 (2014 Voter Guide).)5 The Ballot Pamphlet, in turn, enumerated the intent and
purposes of the proposition as: “[r]equir[ing] misdemeanors instead of felonies for
nonserious nonviolent crimes like petty theft and drug possession, unless the defendant
has prior convictions for specified violent or serious crimes,” “[a]uthoriz[ing]
consideration of resentencing for anyone who is currently serving a sentence for any of
the offenses listed herein that are now misdemeanors,” and “savi[ing] significant state
corrections dollars on an annual basis.” (2014 Voter Guide, supra, text of Prop. 47, § 3,
p. 70.)
While acknowledging the “first step in statutory construction is to focus on the
plain meaning of the words used,” the Attorney General maintains we should, instead,
focus on the “common understanding of ‘shoplifting’ ” and construe “commercial
establishment” to mean “a store or shop that is open to the public with regular business
hours.” We cannot, however, short circuit the task of statutory construction and must
therefore look first at the words of the statute and their plain meaning. (See Imperial
Merchant Services, Inc. v. Hunt (2009) 47 Cal. 4th 381, 387–388 [97 Cal. Rptr. 3d 464,
212 P.3d 736].)
5
We previously granted defendant’s request for judicial notice of the legislative
history of Proposition 47.
4
Several recent decisions have considered the meaning of “commercial
establishment” as used in section 459.5. In J.L., supra, 242 Cal. App. 4th 1108, for
example, the court considered whether a public school was a “commercial establishment”
within the meaning of the statute. “Giving the term its commonsense meaning, a
commercial establishment is one that is primarily engaged in commerce, that is, the
buying and selling 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 and selling of commodities esp. on a 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 ‘[o]f, relating to, or involving the
buying and selling of goods; mercantile’]; see also 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 common business areas’]; Gov. Code, § 65589.5,
subd. (h)(2)(B) [defining ‘neighborhood 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 and selling
of goods, especially on a large scale,’ in interpreting statutory phrase ‘commercial
purpose’].)” (In re J.L., supra, 242 Cal.App.4th at p. 1143.)
Applying these definitions of “commercial,” the J.L. court concluded “[a] public
high school is not an establishment primarily engaged in the sale of goods and services;
rather, it is an establishment dedicated to the education of students.” (In re J.L., supra,
242 Cal.App.4th at p. 1114.)
In People v. Hudson (Aug. 16, 2016, D068439) 2016 WL 4366796, *2–*3, the
court applied the same definition of “commercial establishment” and held a commercial
5
bank is such an establishment. “Because ‘commercial’ involves being engaged in
commerce, including financial transactions, we conclude the term ‘commercial
establishment’ includes a bank.” (Id. at p. *3.) While the court acknowledged “a
common understanding of the word ‘commercial’ encompasses the buying and selling of
merchandise in a retail establishment,” it went on to observe “nothing in the text of the
Act supports this narrow interpretation and we reject it.” (Ibid.; see also People v.
Abarca (Aug. 12, 2016, E063687) 2016 WL 4256888, *3–*4 [bank is “commercial
establishment”]; People v. Smith (2016) 1 Cal.App.5th 266, 272–273 [1 Cal.Rtpr.2d 858]
[check cashing business is “commercial establishment”]; compare People v. Stylz
(Aug. 15, 2016, B263072) 2016 WL 4272014, *2 [locked storage unit was not
“commercial establishment”].)
We also agree with the definition of “commercial establishment” applied in these
cases. Applying it here, we conclude the Santa Rosa Golf and Country Club is an
establishment “primarily engaged in the sale of goods and services.” The fact most of
these are sold to a subset of the general public—namely individual club members and
their guests—does not change the commercial nature of the establishment. Furthermore,
the club sells some of its goods and services, namely its banquet space and services, to
the general public.
As defendant notes, a similar issue arose under the Unruh Civil Rights Act6 which
provides, in pertinent part: “All persons . . . are entitled to the full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” In Warfield v. Peninsula Golf & Country
Club (1995) 10 Cal. 4th 594 [42 Cal. Rptr. 2d 50, 896 P.2d 776] (Warfield), our Supreme
Court considered whether the nonprofit country club could legally exclude women from
proprietary membership. (Id. at pp. 598–599.) Although a private club is “not generally
thought of as a traditional business establishment,” the court held the golf and country
6
Civil Code section 51.
6
club’s “regular business transactions with nonmembers” rendered it a “business
establishment for the purposes of section 51.” (Id. at pp. 616, 621, 623.)
The Attorney General maintains Warfield is inapposite because the term “business
establishment” in the Unruh Civil Rights Act is purportedly broader than “commercial
establishment” in the shoplifting statute, and “it stands to reason that the term ‘business
establishment’ would be given a broad interpretation in order to prohibit businesses from
discriminating against minorities and women.” (See Warfield, supra, 10 Cal.4th at p.
611.)
However, as we have observed, Proposition 47 specifies “This act shall be
liberally construed to effectuate its purposes.” (2014 Voter Guide, supra, text of
Prop. 47, § 18, p. 74.) Given that these purposes include reducing felonies to
misdemeanors for nonserious nonviolent offenses and reducing the costs associated with
felony incarcerations, it would be inconsistent with the purposes of this legislation to
narrowly construe the pivotal term “commercial establishments.”
We therefore conclude “commercial establishment” within the meaning of
section 459.5 means a business that is primarily engaged in the buying and selling of
goods or services regardless of whether these goods or services are sold to “members” or
the general public.
Thus, under the provisions of Proposition 47, defendant is entitled to have his
conviction of second degree felony burglary reduced to misdemeanor shoplifting under
section 459.5, unless the trial court determines on remand resentencing would pose an
unreasonable risk of danger to public safety. (§ 1170.18, subd. (b).)
7
DISPOSITION
The order denying defendant’s petition for recall of sentence and request for
resentencing is reversed and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
8
Trial Court: Sonoma County Superior Court
Trial Judge: Honorable Jamie E. Thistlethwaite
David McNeil Morse, under appointment by the Court of Appeal for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Eric D. Share,
Supervising Deputy Attorney General, and Violet M. Lee, Deputy Attorney General for
Plaintiff and Respondent.
9