People v. Holm

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.

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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.