THE PEOPLE, Plaintiff and Appellant, v. WILLIE ABARCA, JR., Defendant and Respondent.
No. E063687
Fourth Dist., Div. Two.
Aug. 12, 2016.
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) October 19, 2016, S237106.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
SLOUGH, J.—The People appeal from the superior court‘s order granting defendant Willie Abarca, Jr.‘s, Proposition 47 resentencing petition. (
Abarca pled guilty to one felony count of second degree burglary (
The People advance three grounds for reversing the superior court order granting the petition. First, the People contend the superior court erred in reaching the merits because Abarca did not carry his initial burden by attaching evidence to his petition. Second, the People contend the superior
I
FACTUAL BACKGROUND
According to a declaration supporting an arrest warrant for Abarca, on July 10, 2013, “Willie Abarca walked into the U.S. Bank [at 12612 Limonite Avenue] and attempted to cash a check (#557) from Newport Coach Works Inc. in the amount of $300.00.” Abarca left the bank without obtaining cash while a bank employee was checking the signature against bank records. The investigating deputy sheriff “contacted the account owner[,] Carter Read,” who reported “he does not know Abarca, never gave Abarca a check . . . and did not give permission for any of his employees to give Abarca a check.”
The Riverside County District Attorney charged Abarca with one felony count of burglary (
In the burglary count, the prosecution accused Abarca of committing “a violation of Penal Code section 459, a felony, in that on or about July 10, 2013, in the County of Riverside, State of California, he did wilfully and unlawfully enter a certain building located at 12612 LIMONITE AVE, EASTVALE, CA, with intent to commit theft and a felony.”
In the forgery count, the prosecution accused Abarca of committing “a violation of Penal Code section 475, subdivision (c), a felony, in that on or about July 10, 2013, in the County of Riverside, State of California, he did wilfully and unlawfully possess a completed check, money order, traveler‘s check, warrant, and county order, with the intent to utter and pass and facilitate the utterance and passage of the same, in order to defraud READ C.”
On November 18, 2013, Abarca pled guilty to the commercial burglary count and admitted two prison priors. At the plea hearing, the superior court asked Abarca, “[I]s it true on July 10th, 2013 in Riverside County, you went into a building with the intent to commit a felony?” Abarca replied, “Yes.” The superior court found “a factual basis for the plea and . . . accept[ed] the plea.”
On November 4, 2014, the voters of California passed Proposition 47, reducing some felony theft- and forgery-related offenses to misdemeanors when the value of the stolen property does not exceed $950. (E.g.,
On December 10, 2014, Abarca submitted a petition asking the superior court to recall his commercial burglary conviction and resentence him under
On March 11, 2015, the prosecution submitted a response stating “[d]efendant is not entitled to the relief requested” because a “[b]ank is not a commercial establishment.” The prosecution did not contest the value of the forged check or contend Abarca was ineligible for resentencing for any other reason. Nor did the prosecution check boxes provided to request a hearing to determine whether defendant poses an unreasonable risk of danger to the public safety or for any other reason.
On April 23, 2015, the superior court entered an order granting Abarca‘s petition.2 The order indicates the superior court did not hold a hearing on his petition. The order overruled the prosecution‘s “objection that [a] bank is not [a] commercial establishment.” The superior court ordered count one “deemed a misdemeanor . . . amend[ed] count 001 to a violation of 459.5 PC,” and sentenced Abarca to county jail “for the term of 364 days.” Because Abarca had already served 364 days, the superior court ordered him released. The superior court also gave both parties “10 days to file briefs preserving
On May 27, 2015, the People filed a notice of appeal.
II
DISCUSSION
A. Petitioner‘s Burden
The People contend the superior court erred in granting the petition because Abarca did not “present any evidence whatsoever regarding the underlying facts of his section 459 conviction.” In effect, the People contend the superior court was not permitted to reach the merits of Abarca‘s petition without first finding the petitioner had made a prima facie case of entitlement to resentencing. We find no error.
In the first place, the People fail to set forth what constitutes a prima facie case or how Abarca‘s petition was defective. “An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [87 Cal.Rptr.2d 754].) We decline to do so here.
Even assuming the People‘s argument is that Abarca failed to show he passed a forged check for an amount that did not exceed $950, we refuse to reverse on that basis. Abarca filed a signed petition declaring, under penalty of perjury, that “the value of the check” he was convicted of passing “does not exceed $950.” The People did not contest the assertion in their responsive pleading in the superior court. Nor did they in any way address the sufficiency of the petition. Even when the superior court granted the petition and gave the People “10 days to file briefs preserving appellate issues,” they chose not to object to the sufficiency of the petition.
Moreover, in this court, the People admit Abarca‘s offense involved passing a bad $300 check, and also admit “[t]he trial court‘s order granting the petition was based on a review of the court‘s record,” which contained the arrest warrant showing the value of the bad check. Under these circumstances, we cannot find the superior court abused its discretion by reaching the merits of Abarca‘s petition.3
The People contend the superior court erred by determining Abarca was entitled to resentencing on his conviction for burglarizing U.S. Bank as shoplifting (
Proposition 47 added
Neither Proposition 47 nor the Penal Code defines commercial establishment. We therefore understand it to have the meaning it bears in ordinary usage. (See Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91 [255 Cal.Rptr. 670, 767 P.2d 1148].) If the language is unambiguous on its face, we interpret it accordingly. If the language is ambiguous, we may consult ballot summaries and other extrinsic materials to aid us in determining the voters’ intent. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 [107 Cal.Rptr.3d 265, 227 P.3d 858].)
“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word.” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 [29 Cal.Rptr.3d 262, 112 P.3d 647].) Black‘s Law Dictionary defines “establishment” as “[a]n institution or place of business.” (Black‘s Law Dict. (7th ed. 1999) p. 566, col. 2.) It defines “commerce” to mean: “The exchange of goods and services.” (Id. at p. 263, col. 1, italics added.) Other sources are in accord. (Merriam-Webster Dict. Online (2016) <Merriam-Webster.com> [as of Aug. 18, 2013] [defining “commerce” as “activities that relate to the buying and selling of goods and services“]; Business Dict. Online (2016) <BusinessDictionary.com> [as of Aug. 12, 2016] [defining “commerce” as the “[e]xchange of goods or services for money or in kind“].) Thus, we interpret the term “commercial establishment” as it appears in
Banks satisfy this definition. Bank customers use banks to deposit and withdraw funds in exchange for fees. In the context of approving banks’
The People argue we should take a narrower view of the ordinary meaning of “commercial establishment” as meaning a place of business established for the purpose of exchanging goods or merchandise. Some definitions of “commerce” and “commercial” are in accord with this argument. (E.g., American Heritage Dict. (New College ed. 1976) p. 267 [defining commerce as “the buying and selling of goods” (italics added)].) Under that definition, banks would not be commercial establishments because they offer services, not goods or merchandise. At best, this alternative definition creates an ambiguity in the statute. However, as the initiative directs, we construe the act “broadly . . . to accomplish its purposes.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 15, p. 74, online at <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf>; see also id., § 18 at p. 74 [act shall be “liberally construed to effectuate its purposes“].) The stated purposes of the electorate include “[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.” (Id., subds. (3) & (4), § 3, at p. 70.) Adopting the limited definition of “commercial establishment” will frustrate those purposes and result in the continued incarceration of persons who committed petty theft crimes. Accordingly, we construe
C. Identity Theft
The People contend the superior court erred in granting Abarca‘s petition for resentencing because identity theft, not larceny or forgery, was the predicate act for the burglary conviction.
To begin with, the People have forfeited this claim of error. The prosecution did not raise identity theft in relation to the original conviction. Instead, it charged Abarca with entering the bank with the intent to commit “theft and a felony” (the burglary count) and forgery. Neither the prosecution nor the superior court mentioned identity theft at the plea hearing. The superior court
Even if the claim had not been forfeited, we would find no error on the merits. Abarca was entitled to resentencing if his conviction for burglary was predicated on his intent to commit theft or forgery, both of which are eligible offenses under Proposition 47. (
As we have discussed, identity theft played no role in the prosecution of Abarca. The People charged him with burglary and forgery. The prosecution entered a plea bargain with Abarca whereby he pled guilty to burglary, and the People agreed to dismiss the forgery count. At the plea hearing, the superior court asked Abarca whether he had entered a building with the intent to commit a felony. The same court decided Abarca‘s petition for resentencing and presumably had access to all the records we have on appeal. Based on this history and these records, we conclude the superior court did not abuse its discretion in finding theft or forgery to be the predicate of the burglary charge, and therefore did not err in granting Abarca‘s petition.
Proposition 47 provides a petitioning procedure allowing offenders to seek resentencing on existing felony convictions by showing Proposition 47 reclassified the crime of conviction as a misdemeanor. (
III
DISPOSITION
We affirm the order granting Abarca‘s petition for resentencing.
McKinster, Acting P. J., and Miller, J., concurred.
Appellant‘s petition for review by the Supreme Court was granted October 19, 2016, S237106.