Filed 8/7/17 P. v. Bias 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant,

v.

PHILLIP PERNELL BIAS,

Defendant and Respondent.


E062949

(Super.Ct.No. RIF1206306)

OPINION


APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.
Michael A. Hestrin, District Attorney, Emily R. Hanks and Donald W. Ostertag, Deputy District Attorneys, for Plaintiff and Appellant.
Stephen L. Harmon, Public Defender, and William A. Meronek, Deputy Public Defender, for Defendant and Respondent.


I.
INTRODUCTION
The People appeal from an order granting defendant Phillip Pernell Bias’s petition under Penal Code section 1170.18, added by Proposition 47, to resentence his conviction for second degree burglary (Pen. Code, § 459) as misdemeanor shoplifting (Pen. Code,
§ 459.5). The People argued defendant’s offense did not qualify for resentencing under Proposition 47 because (1) defendant entered a bank with the intent to commit felony identity theft, not larceny, and (2) a bank is not a commercial establishment for purposes of the new crime of shoplifting.
In our prior published opinion, we agreed with the People that defendant’s crime was identity theft and not larceny for purposes of the new crime of shoplifting, and we reversed the order granting defendant’s petition. We did not reach the People’s additional argument that a bank is not a commercial establishment. Defendant successfully petitioned the California Supreme Court for review. After issuing its decision in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), the Supreme Court transferred the matter to us with directions to vacate our prior opinion and reconsider the appeal in light of Gonzales. We have vacated our prior opinion and, after considering Gonzales, we now affirm.
II.
FACTS AND PROCEDURAL BACKGROUND
The facts concerning defendant’s crime are taken from the transcript of the preliminary hearing. On September 1, 2012, defendant entered a bank in Moreno Valley and attempted to cash a check for $587.64. The check was made out to defendant and was drawn on the account of Innovative Design Concepts. A sheriff’s deputy spoke to an employee at Innovative Design Concepts. The deputy described some of the characteristics of the check defendant attempted to cash to the employee. The deputy was told that the sequence number of the company’s check would be green in color and would show the company’s emblem. The check defendant presented was blue and lacked the emblem. The employee further notified the deputy that she was not acquainted with defendant, and that he was not an employee of the company. Defendant admitted the check was not legitimate.
Defendant was charged with second degree burglary (Pen. Code, § 459, count 1) and check forgery (§ 475, subd. (c), count 2). The information also alleged defendant served a prison prior term (§ 667.5, subd. (b)) and suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). Defendant pleaded guilty to count 1 and admitted the prior allegations. The trial court sentenced him to three years eight months in state prison. The trial court then struck count 2 in the interests of justice.
(§ 1385.)
On November 20, 2014, defendant filed a petition for resentencing under section 1170.18, subdivision (a). Over the People’s objection on the ground that defendant was not eligible for resentencing, the trial court granted the petition, resentenced defendant for a misdemeanor violation of section 459.5, and gave him credit for time served.
II.
DISCUSSION
“In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74 . . . .) The Act also added several new provisions, including Penal Code section 459.5, which created the crime of shoplifting. Subdivision (a) of 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). Any other entry into a commercial establishment with intent to commit larceny is burglary.’ Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. (§ 459.5, subd. (a).) Section 459.5, subdivision (b) contains an explicit limitation on charging: ‘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.’” (Gonzales, supra, 2 Cal.5th at p. 863, fn. omitted.)
“Section 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions. If the offense committed by an eligible defendant would have been a misdemeanor under the Act, resentencing is required unless ‘the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) A person who has already completed a felony sentence may petition to have his conviction designated a misdemeanor. (§ 1170.18, subds. (f), (g).)” (Gonzales, supra, 2 Cal.5th at p. 863, fns. omitted.)
As stated, the People argued defendant’s conviction for second degree burglary does not meet the definition of shoplifting under section 459.5 because attempting to cash a forged check is identity theft and not larceny, and a bank is not a commercial establishment. The Supreme Court in Gonzales expressly rejected the People’s first argument, and implicitly rejected the second one.
As here, the defendant in Gonzales was convicted of second degree burglary when he tried to pass a forged check in a bank. (Gonzales, supra, 2 Cal.5th at p. 862.) The Supreme Court concluded the defendant was entitled to be resentenced under section 1170.18. The court held the term “‘shoplifting’” as used in section 459.5 is a “term of art, which must be understood as it is defined, not in its colloquial sense.” (Gonzales, at p. 871, fn. omitted.) The court found that section 459.5 applies to “an entry to commit a nonlarcenous theft,” such as “theft by false pretenses.” (Gonzales, at p. 862.) In addition, the court rejected the People’s argument that passing a forged check is actually identity theft, agreeing with the defendant that “even assuming he entered the bank with an intent to commit identity theft, section 459.5, subdivision (b) would have precluded a felony burglary charge because his conduct also constituted shoplifting.” (Gonzales, at p. 876.) “A felony burglary charge could legitimately lie if there was proof of entry with intent to commit a nontheft felony or an intent to commit a theft of other property exceeding the shoplifting limit.” (Id. at p. 877.) Because there was no evidence that the defendant intended to commit a nontheft felony, the court concluded his crime was a larceny for purposes of section 459.5. (Gonzales, at p. 877.)
The People here concede, and we agree, that Gonzales forecloses their argument that defendant did not commit a larceny for purposes of section 459.5. Originally, the People also argued the bank where defendant attempted to cash a stolen and forged check was not a “commercial establishment” for purposes of section 459.5, but we did not reach that issue in our prior opinion. Although the Supreme Court in Gonzales did not expressly decide that a bank is a commercial establishment, by concluding the defendant’s “act of entering a bank to cash a stolen check for less than $950 . . . now constitutes shoplifting under the statute” (Gonzales, supra, 2 Cal.5th at p. 862), the court implicitly rejected the People’s argument. In any event, we now independently and expressly conclude a bank is a commercial establishment.
Whether a bank is a “commercial establishment” within the meaning of Proposition 47 is a question of statutory interpretation we review de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.) Neither Proposition 47 nor the Penal Code provide a definition of “commercial establishment.” When interpreting a statute, we must give words and phrases their usual and ordinary meaning. (§ 7, subd. 16; People v. Castillolopez (2016) 63 Cal.4th 322, 329.)
Black’s Law Dictionary defines “establishment” as “[a]n institution or place of business.” (Black’s Law Dict. (8th ed. 2004) p. 586, col. 1.) That same dictionary defines “commerce” as “[t]he exchange of goods and services, esp. on a large scale involving transportation between cities, states, and nations.” (Id. at p. 285, col. 1, italics added.) Based on that dictionary and other sources, the courts of this state have concluded the phrase “commercial establishment” as used in section 459.5 means a place of business established for and primarily engaged in the exchange of goods or services. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114 [high school campus not a commercial establishment]; People v. Smith (2016) 1 Cal.App.5th 266, 273 [check cashing business is a commercial establishment]; People v. Holm (2016) 3 Cal.App.5th 141, 146-148 [golf and country club is a commercial establishment].)
In People v. Abarca (2016) 2 Cal.App.5th 475, this court adopted the same definition of “commercial establishment.” “[W]e interpret the term ‘commercial establishment’ as it appears in section 459.5, subdivision (a) to mean a place of business established for the purpose of exchanging goods or services.” (Abarca, at p. 481.) This court concluded banks satisfy the definition of “commercial establishment” because they provide their customers with financial services in exchange for fees. (Id. at pp. 481-482.) We believe that conclusion remains persuasive and come to the same conclusion here. (Accord, People v. Hudson (2016) 2 Cal.App.5th 575, 582 [“Because ‘commercial’ involves being engaged in commerce, including financial transactions, we conclude that the term ‘commercial establishment’ includes a bank”], review granted Oct. 26, 2016, S237340.)
In sum, we conclude the superior court correctly granted defendant’s petition for resentencing.
III.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J.



CODRINGTON
J.