DecisionDepot is for informational use only. Not legal advice. Always verify against the source ruling before relying on any analysis.
© 2026 DecisionDepot
27,059 rulings indexed. Last ingest about 9 hours ago .
Data refreshes about every 15 minutes during California business hours.
DecisionDepot is for informational use only. Not legal advice. Always verify against the source ruling before relying on any analysis.
© 2026 DecisionDepot dev · 2026-07-08 01:03 UTC Admin
People v. Simon CA4/2 (2016) · DecisionDepot
/ California Court of Appeal People v. Simon CA4/2 Unpublished Filed 6/10/16 P. v. Simon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E062900
v. (Super.Ct.No. FVI1300530)
VERNAE JENNIFER SIMON, OPINION Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
1
INTRODUCTION Defendant and appellant Vernae Jennifer Simon appeals from the denial of her
petition under Proposition 47 and Penal Code section 1170.181 for redesignation of her
conviction of second degree burglary (§ 459) to misdemeanor shoplifting (§ 459.5).
Defendant contends the trial court erred in determining that the bank where she
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
committed her crime was not a commercial establishment within the meaning of section
FACTS AND PROCEDURAL BACKGROUND On December 28, 2012, defendant entered a bank in Adelanto and attempted to
open an account by depositing a fraudulent check. Earlier that day, she had attempted to
deposit a fraudulent check at another bank in Hesperia. When she was arrested, she had
social security numbers and four fraudulent checks with a total face value of $345 in her
Defendant was charged with second degree commercial burglary (§ 459,
counts 1 & 2) and forgery (§ 470, subd. (d), count 3). On March 14, 2013, defendant
entered a plea of no contest to one count of second degree burglary (§ 459), and the
remaining counts were dismissed. The parties stipulated that the police report provided
the factual basis for the plea.
1 All further statutory references are to the Penal Code unless otherwise indicated.
On December 29, 2014, defendant filed a petition requesting that her conviction be
redesignated as misdemeanor shoplifting. (§ 459.5.) The trial court held that the bank
she entered was not a retail establishment and denied her petition.
DISCUSSION When interpreting a voter initiative, “we apply the same principles that govern
statutory construction.” (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look “‘to
the language of the statute, giving the words their ordinary meaning.’” (Ibid.) We
construe the statutory language “in the context of the statute as a whole and the overall
statutory scheme.” (Ibid.) If the language is ambiguous, we look to “‘other indicia of the
voters’ intent, particularly the analyses and arguments contained in the official ballot
Overview of Proposition 47 and Section 1170.18
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods
and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes
from felonies or wobblers to misdemeanors for qualified defendants and added, among
other statutory provisions, section 1170.18. Section 1170.18 creates a process through
which persons previously convicted of crimes as felonies, which would be misdemeanors
under the new definitions in Proposition 47, may petition for resentencing. (See
generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.) Specifically,
section 1170.18, subdivision (a), provides: “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 [Proposition 47] . . . had [Proposition 47] 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 [Proposition 47].”
Defendant entered a plea of no contest to one count of second degree burglary
(§ 459); she now contends her offense should be reduced to misdemeanor shoplifting.
Section 459.5 provides: “(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 relevant here]. [¶]
(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
Defendant contends the trial court erred in determining that the bank was not a
commercial establishment within the meaning of section 459.5. At the hearing on
defendant’s petition, the People argued that defendant was not eligible for resentencing
because the bank where she committed her crime was not a “retail establishment,” and
the trial court denied the petition without expressly stating its reasoning. We need not
reach the question of whether a bank is a “commercial establishment” under section
459.5 because we review the trial court’s decision, not its reasoning, and will affirm a
judgment or order that reached the correct result, “‘“regardless of the considerations
[that] may have moved the trial court to its conclusion.”’” (People v. Zapien (1993) 4
The newly defined offense of shoplifting (§ 459.5) is committed when a defendant
enters a commercial establishment during regular business hours “with intent to commit
larceny.” (§ 459.5, subd. (a).) The elements of the crime of larceny are that a person
“(1) takes possession (2) of personal property (3) owned or possessed by another, (4) by
means of trespass and (5) with intent to steal the property, and (6) carries the property
away.” (People v. Davis (1998) 19 Cal.4th 301, 305.)
The issue of whether an intent to commit theft by false pretenses or fraud qualifies
as an intent to commit larceny within the meaning of section 459.5 is currently pending in
our Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35, review granted
Feb. 17, 2016, S231171; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted
The case of People v. Williams (2013) 57 Cal.4th 776, 788-789, clarified that
larceny and acquiring property by false pretenses are distinct and mutually exclusive
offenses. In that case, the defendant used payment cards re-encoded with another
person’s credit card information to buy Walmart gift cards and then used force against a
security guard who tried to detain him. The defendant appealed his ensuing robbery
conviction, and our Supreme Court reversed on the ground that the defendant had
acquired property through his false representation. The court explained that “[b]ecause a
‘felonious taking,’ as required in California’s robbery statute (§ 211), must be without the
consent of the property owner, or ‘against his will’ ([§ 211]), and Walmart consented to
the sale of the gift cards, defendant did not commit a trespassory (nonconsensual) taking,
and hence did not commit robbery.” (Id. at p. 788.)
In People v. Curtin (1994) 22 Cal.App.4th 528, the court held that when the
defendant entered a bank, cashed a check made out to himself but drawn on the account
of another depositor without permission or authorization, the crime was that of obtaining
property by false pretenses, not that of larceny by trick. (Id. at p. 532.) The court
explained that “‘[a]lthough the crimes of larceny by trick . . . and obtaining property by
false pretenses are much alike, they are aimed at different criminal acquisitive
techniques.’” (Id. at p. 531.) The court continued that “[d]efendant’s misrepresentation
of himself as a depositor . . . was certainly a trick or device. But he used it to acquire
possession and title to the money, not merely possession. The bank did not give
defendant the money on any understanding as to its limited use; rather, believing he was
[the depositor], the bank gave defendant the money to keep or use as he would.” (Id. at
Defendant contends she was “not given the opportunity to prove that she entered
the bank with the intent to commit larceny.” However, the defendant seeking relief under
section 1170.18 “‘“has the burden of proof as to each fact the existence or nonexistence
of which is essential to the claim for relief or defense he is asserting.”’” (People v.
Sherow (2015) 239 Cal.App.4th 875, 879.) Here, we conclude the trial court reached the
correct result because defendant failed to establish that she entered the bank with the
intent to commit larceny rather than theft by false pretenses.
DISPOSITION The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. I respectfully dissent. The majority upholds the denial of defendant’s
petition to recall her sentence (Petition) filed pursuant to Penal Code section
1170.18.1 The trial court denied the Petition without comment after it was argued
by the People that a bank was not a commercial establishment. The majority
upholds the denial of the Petition based on its finding that defendant’s entry into a
bank in possession of four fraudulent checks totaling $345 did not qualify as
shoplifting under newly enacted section 459.5. Specifically, the majority
concludes theft by false pretenses is not the same as “larceny” as that term is used
in section 459.5. I would reverse the trial court’s order and remand to the trial
court for it to determine if defendant is still in custody and, if so, whether she
poses an unreasonable risk to public safety.
Proposition 47 added section 1170.18. Subdivision (a) of 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
1 All further statutory references are to the Penal Code unless otherwise indicated.
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 section 1170.18, subdivision (b), the trial court first determines
whether the petition has presented a prima facie case for relief under section
1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a),
then he or she will be resentenced to a misdemeanor, unless the court, within its
discretion, determines the petitioner would pose an unreasonable risk to public
safety. (§ 1170.18, subd. (b).)
In this case, defendant was convicted of burglary in violation of
section 459. Section 459 is not listed in Proposition 47 and remains after the
effective date of Proposition 47. Second degree burglary, which is defined in
relevant part as the entering of a building other than a residence “with intent to
commit grand or petit larceny or any felony,” remains punishable as either a
misdemeanor or a felony. (§§ 459, 461, subd. (b).) Section 459.5 provides:
“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).” (§ 459.5,
subd. (a).) As such, shoplifting consists of four elements, which must be found by
the trial court as follows: (1) entry into a commercial establishment; (2) while that
establishment is open during regular business hours; (3) with the intent to commit
larceny; and (4) the value of the property that is taken or intended to be taken does
not exceed $950. (§ 459.5, subd. (a); see People v. Contreras (2015) 237
Cal.App.4th 868, 892.) The crime of shoplifting, with certain exceptions not
relevant here, is punishable only as a misdemeanor.
Here, the amount involved in the case was less than $950 because the
factual basis of the plea was taken from the police report, which detailed the face
value of the checks in defendant’s possession. There also is no dispute that the
bank was open during regular business hours. The questions in this case are
(1) whether defendant entered the bank with the intent to commit larceny, and (2)
whether the bank was a commercial establishment. The majority concludes that
defendant did not enter the bank to commit “larceny.” Here, defendant had the
intent to commit theft by false pretenses, as determined by the majority, and it
must be determined if this is the equivalent of larceny as that term is used in
“Theft” is defined in section 484, subdivision (a), as follows: “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, or who causes or procures others to report falsely of his
or her wealth or mercantile character and by thus imposing upon any person,
obtains credit and thereby fraudulently gets or obtains possession of money, or
property or obtains the labor or service of another, is guilty of theft.” As such, the
term “theft” includes theft by false pretenses, that is, “knowingly and designedly,
by any false or fraudulent representation or pretense, defraud[ing] any other
person of money, labor or real or personal property.” (Ibid.) Larceny is statutorily
equated with “theft.” Section 490a provides: “Wherever any law or statute of this
state refers to or mentions larceny, embezzlement, or stealing, said law or statute
shall hereafter be read and interpreted as if the word ‘theft’ were substituted
In People v. Nguyen (1995) 40 Cal.App.4th 28, the defendant was
convicted of three counts of burglary for giving worthless checks to the victims in
exchange for their property. On appeal, the defendant argued that he did not
intend to commit larceny but rather theft by false pretenses, which would not
support his burglary convictions. (Id. at pp. 30-31.) The appellate court rejected
this argument, finding that “in 1927, the Legislature amended the larceny statute to
define theft as including the crimes of larceny, embezzlement and obtaining
property by false pretense. [Citation.] At the same time, the Legislature also
enacted section 490a stating, ‘[w]herever any law or statute of this state refers to
or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter
be read and interpreted as if the word “theft” were substituted therefor.’
[Citation.] Thus, the Legislature has indicated a clear intent that the term ‘larceny’
as used in the burglary statute should be read to include all thefts, including ‘petit’
theft by false pretenses.” (Id. at p. 31; see People v. Curtin (1994) 22 Cal.App.4th
528, 531 [obtaining property by false pretenses along “with other larcenous
crimes, have been consolidated into the single crime of theft”].)
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
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
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,
Here, it is clear that defendant pled guilty to second degree burglary both
based on the intent to commit theft and a felony. Her 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 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: “[A]ctivities that relate to the buying and
selling of goods and services.” (See <http://www.merriam-webster.com/
dictionary/commerce> [as of June 10, 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.” (See <http:// www.merriam-webster.com/dictionary/commodities> [as of
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
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 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 reverse the trial court’s order
denying the Petition. I would remand for the trial court to determine whether
defendant is still in custody. If she is still in custody, the trial court would need to
determine whether she would pose an unreasonable risk to public safety prior to
resentencing her to a misdemeanor. (§ 1170.18, subd. (b).)
MILLER J. AI-generated · verify before citing Holding. The court affirmed the denial of the defendant's petition for resentencing under Proposition 47, holding that the defendant failed to establish that she entered the bank with the intent to commit larceny, a required element of shoplifting under Penal Code section 459.5.
Issues
Whether a bank constitutes a 'commercial establishment' under Penal Code section 459.5. Whether an intent to commit theft by false pretenses satisfies the 'intent to commit larceny' requirement of Penal Code section 459.5. Disposition. Affirmed
“We need not reach the question of whether a bank is a “commercial establishment” under section 459.5 because we review the trial court’s decision, not its reasoning, and will affirm a judgment or order that reached the correct result” “we conclude the trial court reached the correct result because defendant failed to establish that she entered the bank with the intent to commit larceny rather than theft by false pretenses.”