People v. Nolkemper CA2/5

Filed 7/26/22 P. v. Nolkemper CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B308784

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. LA030060)

HENRY NOLKEMPER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Lara Hoffman for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.

Some 20 years ago, defendant and appellant Henry Nolkemper, also known as Alejandra Nolkemper, (defendant) was convicted of second degree burglary for breaking a window at Christ Chapel of the Valley in North Hollywood (the Church). Defendant now appeals from a trial court order denying her petition to reclassify her burglary conviction as misdemeanor shoplifting under section 459.5 to the Penal Code.1 We consider whether defendant’s crime meets the elements of shoplifting such that she could be entitled to resentencing—we focus, in particular, on whether the Church qualifies as a “commercial establishment.”

I. BACKGROUND The building the Church leased to hold religious services like bible study classes also houses a small bookstore. The Church was generally open to the public from 9:00 a.m. until 5:00 p.m. during the week, but it was closed on Mondays. On Thursday, April 10, 1997, police officers responded to a call of a possible burglary at the Church. A Church official told responding officers that he locked up at the Church the day before at about 9:30 p.m. and discovered a broken window in one of the Church’s rooms at about 11:30 a.m. that morning. The room with the broken window was locked from both the inside and out (such that someone breaking in could not gain further