California Court of Appeal May 6, 2016 No. E063156Unpublished
Filed 5/6/16 P. v. Slemmer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E063156
v. (Super.Ct.No. RIF135101)
DANIEL HAYES SLEMMER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Reversed.
John F. Schuck, 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, Barry Carlton and Sabrina Y.
Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Daniel Hayes Slemmer appeals from the denial of his
petition under Proposition 47 and Penal Code section 1170.18,1 for resentencing of his
conviction of second degree burglary (§ 459) to misdemeanor shoplifting (§ 459.5).
which provide: “(a) 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 [with exceptions not here relevant]. [¶] (b) 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.”
The issue before us is whether appellant would have been guilty of misdemeanor
shoplifting, in violation of section 459.5, if Proposition 47 had “been in effect at the
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time” that he entered the pawn shop. (§ 1170.18, subd. (a).) As defined by section 459.5,
the offense of shoplifting requires an “intent to commit larceny.” Defendant
characterizes his crime as “entering an open pawn shop—a commercial establishment—
with the intent to commit fraud, i.e., pawn a ring which was not his to pawn,” and he
asserts that such conduct is larceny as a matter of law. It was undisputed that the value of
the ring was less than $950.
Under section 484, subdivision (a), “theft” is broadly defined: “Every person who
shall feloniously steal, take, carry, lead, or drive away the personal property of another,
or who shall fraudulently appropriate property which has been entrusted to him or her, or
who shall knowingly and designedly, by any false or fraudulent representation or
pretense, defraud any other person of money, labor or real or personal property . . . is
guilty of theft.” More specifically, section 484.1, subdivision (a), defines conduct such as
defendant’s to be theft: “Any person who knowingly gives false information or provides
false verification as to the person’s true identity or as to the person’s ownership interest
in property or the person’s authority to sell property in order to receive money or other
valuable consideration from a pawnbroker or secondhand dealer and who receives money
or other valuable consideration from the pawnbroker or secondhand dealer is guilty of
theft.”
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The People concede that “section 490a has long defined larceny as theft”2 and that
“[i]f one presumes the voters were aware of section 490a when they passed Proposition
47 [citation], there is a strong argument that section 459.5 should be interpreted to mean
that all persons who enter a store (during regular business hours) with the intent to
commit any type of theft (of property valued at $950 or less) are now liable for
misdemeanor shoplifting.” The People nonetheless argue that the term “shoplifting” in
section 459.5 introduces ambiguity because the term has the common meaning of
encompassing “only the theft of openly displayed merchandise from commercial
establishments.” The People also concede that the ballot pamphlet provided no guidance
to the voters to resolve the supposed ambiguity, but argue that this court should adopt the
traditional narrow definition of shoplifting.
It is a well-established principle of statutory construction that the enacting body,
including the voters who adopt an initiative measure, “is deemed to be aware of existing
laws and judicial constructions in effect at the time legislation is enacted.” (People v.
Weidert (1985) 39 Cal.3d 836, 844.) Thus, regardless of any common definition of
shoplifting, we must conclude that the voters were aware that the use of the term
“larceny” in the new definition of shoplifting incorporated all forms of theft as provided
in section 490a.
2 Section 490a provides: “Wherever any law or statute of this state refers to or mentions larceny, . . . said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”
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Moreover, the voters’ general intent behind Proposition 47 was to “ensure that
prison spending is focused on violent and serious offenses, to maximize alternatives for
nonserious, nonviolent crime, and to invest the savings generated from this act into
prevention and support programs in K-12 schools, victim services, and mental health and
drug treatment.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70, see
<http://vig.cdn.sos.ca.gov/2014/general/en/pdf/ complete-vigr1.pdf> [as of May 3,
2016].) Defendant’s conviction was unquestionably nonviolent, so reducing it to a
misdemeanor would serve the purposes behind Proposition 47.
We conclude that defendant was eligible for resentencing to a misdemeanor under
section 459.5. He had “enter[ed] a commercial establishment [the pawn shop] with intent
to commit larceny while that establishment [was] open during regular business hours,”
and “the value of the property taken or intended to be taken [did] not exceed” $950.
(§ 459.5, subd. (a).)
DISPOSITION
The order appealed from is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant who enters a commercial establishment with the intent to commit theft (larceny) of property valued at $950 or less is eligible for resentencing to misdemeanor shoplifting under Penal Code section 459.5.
Issues
Whether a conviction for second degree burglary involving the theft of property from a pawn shop qualifies for resentencing as misdemeanor shoplifting under Proposition 47.
Disposition. reversed
Quotations verified verbatim against the opinion
“we must conclude that the voters were aware that the use of the term “larceny” in the new definition of shoplifting incorporated all forms of theft as provided in section 490a.”
“We conclude that defendant was eligible for resentencing to a misdemeanor under section 459.5.”