California Court of Appeal May 5, 2016 No. E063843Unpublished
Filed 5/5/16 P. v. Dool 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant, E063843
v. (Super.Ct.No. RIF1304400)
ROBERT TERRAL DOOL, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District
Attorney, for Plaintiff and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Respondent.
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INTRODUCTION
The People appeal from an order granting defendant Robert Terral Dool’s petition
for resentencing of his conviction of second degree burglary (Pen. Code, § 459)1 as
misdemeanor shoplifting (§ 459.5). The People contend defendant’s offense did not
qualify for resentencing under Proposition 47 and section 1170.18 because (1) defendant
This conclusion that larceny includes theft by false pretenses is also
supported by the intent of the voters. Proposition 47 was intended to “[r]equire
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.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop.
47, § 3, subd. (3), p. 70.) Petty theft by false pretenses is exactly the type of
nonserious, nonviolent crime that should be eligible for resentencing under
Proposition 47.
The majority relies upon People v. Williams (2013) 57 Cal.4th 776. In
Williams, a man committed theft by false pretenses and subsequently pushed a
security guard in an attempt to flee. The California Supreme Court addressed
whether theft by false pretenses could satisfy the “felonious taking” requirement
of robbery. (Id. at pp. 779-780.) The defendant argued that the “felonious taking”
requirement, which is only present in robbery and no other types of theft, could
only be satisfied by the crime of theft by larceny, and not theft by false pretenses.
(Id. at p. 781.) The court, after analyzing the common law meanings of the
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different theft offenses, found that larceny is a necessary element of robbery as it
requires a trespassory taking. (Id. at pp. 786-787.) Thus, Williams held that theft
by false pretenses could not support a robbery conviction, because only theft by
larceny could fulfill the “felonious taking” requirement. (Id. at p. 789.)
I find Williams distinguishable because it involved the interpretation of the
“felonious taking” element of robbery, not burglary. Section 459.5 redefined
certain second degree burglaries, and our high court has held “[a]n intent to
commit theft by a false pretense or a false promise without the intent to perform
will support a burglary conviction.” (People v. Parson (2008) 44 Cal.4th 332,
354.)
Here, it is clear that defendant pled guilty to second degree burglary both
based on the intent to commit theft and a felony. His entry with the intent to
commit theft by false pretenses qualifies as shoplifting under section 459.5.
I further find that a bank is a commercial establishment. 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
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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
selling of goods and services.” (<http://www.merriam-webster.com/dictionary/
commerce> [as of May 5, 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 May 5,
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 the Code of Federal Regulations, 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[.]” (37 C.F.R § 258.2
(2014).)
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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 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 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 bank is
engaged in the buying and selling of services. I would uphold the trial court’s
order granting the Petition.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that an entry into a bank with the intent to commit theft by false pretenses does not constitute an intent to commit larceny, and therefore does not qualify as shoplifting under Penal Code section 459.5.
Issues
Whether an intent to commit theft by false pretenses qualifies as an intent to commit larceny under Penal Code section 459.5.
Whether a bank constitutes a commercial establishment for the purposes of Penal Code section 459.5.
Disposition. reversed
Quotations verified verbatim against the opinion
“defendant’s act of obtaining money was consensual and nontrespassory. Thus, he did not enter the bank with the intent to commit larceny as defined in Williams, and his conduct did not fall within the definition of shoplifting”