California Court of Appeal Apr 27, 2016 No. E063216Unpublished
Filed 4/27/16 P. v. Oviedo CA4/2 See Dissenting Opinion NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063216
v. (Super.Ct.No. RIF1105870)
JESSE OVIEDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez,
Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Marvin E. Mizell and
Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Jesse Oviedo, filed a petition for resentencing pursuant
to Penal Code section 1170.18,1 which the court denied. On appeal, defendant contends
the court erred in denying his petition. We affirm.
I. FACTS AND PROCEDURAL HISTORY
On June 29, 2012, the People charged defendant by information with six counts of
Code section 1170.18, provides in pertinent part, “A person currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this section
(‘this act’) had this act been in effect at the time of the offense may petition for a
recall of sentence before the trial court that entered the judgment of conviction in
his or her case to request resentencing in accordance with 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, as those sections have been amended or added by this
act.” Under Penal Code section 1170.18, subdivision (b), the trial court first
determines whether the petition has presented a prima facie case for relief under
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Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria
in subdivision (a), then he will be resentenced to a misdemeanor, unless the court,
within its discretion, determines the petitioner would pose an unreasonable risk to
public safety. (Pen. Code, § 1170.18, subd. (b).)
Section 459.5 was added to the Penal Code by Proposition 47 and provides,
“[n]otwithstanding [Penal Code s]ection 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).”
“Commercial establishment” was not defined.
Because the term “commercial establishment” was not defined in the ballot
initiative and is not defined in the Penal Code, we begin with the words
themselves, giving them their ordinary meaning. “A dictionary is a proper source
to determine the usual and ordinary meaning of a word or phrase in a statute.”
(E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn.2; see
also 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”]; Scott v. Continental
Ins. Co. (1996) 44 Cal.App.4th 24, 30, fn. omitted [“It is thus safe to say that the
‘ordinary’ sense of a word is to be found in its dictionary definition”].)
The Merriam-Webster Online Dictionary (2016) provides a simple
definition for commerce as follows: “activities that relate to the buying and
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selling of goods and services.” (<http://www.merriam-
webster.com/dictionary/commerce> [as of Apr. 27, 2016].) The full definition
includes, “the exchange or buying and selling of commodities on a large scale
involving transportation from place to place.” (Ibid.) “Commodity” is simply
defined as, “something that is bought and sold” or “something or someone that is
useful or valued.” (<http://www.merriam-webster.com/dictionary/commodities>
[as of Apr. 27, 2016].)
Black’s Law Dictionary defines establishment as, “2. An institution or
place of business.” (Black’s Law Dict. (8th ed. 2004) p. 586, col. 1.) Commerce
is defined as, “The exchange of goods and services, esp. large scale involving
transportation between cities, states, and nations.” (Id. at p. 285, col. 2.)
In 37 Code of Federal Regulations part 258.2 (2014), pertaining to
copyright law, commercial establishment is defined 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[.]”
In In re J.L. (2015) 242 Cal.App.4th 1108, 1114, the court found that
stealing a cellular telephone from a school locker did not qualify for resentencing
under Proposition 47. It determined that, “[w]hatever broader meaning
‘commercial establishment’ as used in [Penal Code] section 459.5 might bear on
different facts, [the defendant]’s theft of a cell phone from a school locker room
was not a theft from a commercial establishment.” Thereafter, the court defined
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commercial establishment as follows: “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.” (Ibid, italics
added.)
I conclude that commercial establishment is reasonably interpreted to
include those businesses engaged in the buying and selling of services. A
temporary employment agency is engaged in the buying and selling of services. I
note that in their respondent’s brief, the People made no argument to the contrary,
essentially conceding that a temporary employment agency is a commercial
establishment.
I disagree with the majority’s conclusion that a commercial establishment
must be engaged in the buying and selling of goods. The majority relies upon the
common understanding of the term “shop” and “lift.” However, the voters
approved Proposition 47, which provides a definition of shoplifting that is
different from the ordinary meaning. The term “commercial establishment” is
reasonably interpreted to include the buying and selling of goods and services. As
such, the trial court erred by determining that the temporary employment agency
was not a commercial establishment.
The majority does not address the People’s further argument that defendant
entered the employment agency with two intents: to commit a felony (identity
theft) and theft. The People insist that defendant’s entry with the intent to commit
identify theft constitutes a felony even after the enactment of Proposition 47.
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Defendant has responded that when he entered his plea in open court, he pleaded
guilty to second degree burglary based on his entry with the intent to commit theft
or a felony. The nature of a plea is a factual question that must first be decided by
the trial court. (People v. Contreras (2015) 237 Cal.App.4th 868, 892 [“The trial
court’s decision on a [Penal Code] section 1170.18 petition is inherently factual,
requiring the trial court to determine whether the defendant meets the statutory
criteria for relief”].)
The trial court did not address whether defendant entered the employment
agency with the intent to commit larceny.
I would remand this matter in order for the trial court to review the plea and
record of conviction to determine if defendant is eligible for resentencing under
Proposition 47.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a temporary employment agency does not qualify as a "commercial establishment" under Penal Code section 459.5, thereby affirming the denial of the defendant's petition for resentencing.
Issues
Whether a temporary employment agency constitutes a "commercial establishment" under Penal Code section 459.5 for the purposes of Proposition 47 resentencing.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the intent behind the enactment of the section 459.5 misdemeanor crime of shoplifting was to punish the purloining of goods from a retail establishment.”
“Here, the temporary employment agency was not a commercial establishment for purposes of the shoplifting statue because it was not engaged in the buying and selling of goods.”