For purposes of shoplifting statute (Pen. Code, § 459.5), a bank qualifies as a “commercial establishment.” Hudson walked into a bank pretending to be someone else and tried to cash a forged check. He ultimately pleaded guilty to second degree burglary, check forgery, and false impersonation. After Proposition 47 passed he filed a petition to reduce the burglary conviction to misdemeanor shoplifting. The trial court denied his petition on the basis that a bank was not a commercial establishment. He appealed. Held: Affirmed on another ground. Proposition 47 reduced a number of felony drug and theft offenses from felonies to misdemeanors. It also created a retroactive mechanism whereby individuals can seek to have old felony convictions for such offenses reduced to misdemeanors. (See Pen. Code, § 1170.18.) Pursuant to Proposition 47, second degree burglary is now misdemeanor “shoplifting” if the defendant (1) entered a commercial establishment, (2) during normal business hours, (3) with the intent to commit larceny, and (4) value of the property taken or intended to be taken is $950 or less. Contrary to the trial court’s finding, a bank qualifies as a commercial establishment. Although it is not the prototypical commercial establishment that engages in the sale of goods, a bank does engage in commerce via financial transactions and therefore is unambiguously a commercial establishment. But even if the term “commercial establishment” were ambiguous, it must be interpreted to include a bank in order to give effect to the voter’s intent that Proposition 47’s provisions be “liberally construed” to reduce nonviolent crimes to misdemeanors. “[E]ntering a bank and attempting to cash a forged check is precisely the type of nonviolent crime encompassed by the Act.”
Entering a bank with the intent to cash a forged check qualifies as “larceny” for purposes of new shoplifting statute. Hudson argued that his entry into the bank with the intent to cash a forged check qualified as entering with an intent to commit larceny for purposes of the shoplifting statute. The issue of whether a defendant convicted of second degree burglary for entering a bank to cash forged checks is entitled to resentencing under section 1170.18 on the ground the offense meets the definition of shoplifting under section 459.5 is currently pending in the California Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35, review granted 2/17/2016 (S231171/D067544).) The Court of Appeal here concluded that “[u]ntil our high court resolves this issue, we follow the view that entering a bank with intent to commit theft by false pretenses by cashing a forged check meets the definition of shoplifting under section 459.5.”
Trial court properly denied Proposition 47 resentencing petition because petitioner failed to allege that the value of property taken or intended to be taken was $950 or less. Hudson also argued that the trial court erred by relying on a postconviction probation report to determine that the value of the forged check was greater than $950. According to Hudson, resentencing eligibility must be based solely on the record of conviction, the record of conviction in his case was silent as to the value of the forged check, and, when the record of conviction is silent, a court must presume it was for the least offense possible. However, the Court of Appeal did not reach that contention. Instead, it reasoned that Hudson, as the petitioner, bore the burden under Evidence Code 500 of demonstrating his eligibility for resentencing. By failing to present any evidence that the value of the property he intended to take did not exceed $950, he failed to establish his eligibility for resentencing from second degree commercial burglary to shoplifting.
The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068439.PDF
