P. v. Hudson

Filed 8/16/16; THE SUPREME COURT OF CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
BABYRAY HUDSON,
Defendant and Appellant.
D068439
(Super. Ct. No. SCE314973)
APPEAL from an order of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part III.

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Babyray Hudson appeals from an order denying his petition to reduce his second
degree burglary and forgery convictions to misdemeanors under Proposition 47, the Safe
Neighborhoods and Schools Act (the Act). (Pen. Code,1 § 1170.18.) Hudson's
convictions involve a 2011 incident in which he entered a bank, falsely impersonating
another person, with the intent to commit a felony by signing someone else's name to a
check. We conclude that, while a bank is a commercial establishment (§ 459.5), the trial
court properly denied the petition because Hudson failed to establish his eligibility for
resentencing.
PROCEDURAL BACKGROUND
Hudson pled guilty to one count each of second degree burglary (§ 459), forgery
(§ 470, subd. (a)), and false impersonation (§ 529, subd. (a)(2)). He also admitted the
truth of two prior prison term commitment allegations. (§§ 667.5 & 668.) The trial court
sentenced Hudson to a total term of five years, suspended execution of the sentence,
granted three years formal probation and indicated Hudson was to complete a residential
treatment program of no less than six months. The trial court later revoked and
terminated probation and imposed the previously stayed five-year commitment, to be
served locally under section 1170, subdivision (h).
In 2014, after passage of the Act, Hudson filed a petition asserting his second
degree burglary and forgery convictions must be reduced to misdemeanors, and asking
the court to exercise its discretion to reduce the false impersonation conviction to a
misdemeanor. The trial court denied the petition, finding a bank is not a commercial
1 Undesignated statutory references are to the Penal Code.

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establishment under the Act and that Hudson intended to take property in excess of $950.
Hudson timely appealed.
DISCUSSION
I
GENERAL LEGAL PRINCIPLES
In November 2014, the electorate approved the Act, which makes certain theft-
related and drug-related offenses misdemeanors. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1091 (Rivera).) Among other things, the Act reduced certain types of
forgeries identified in section 473, subdivision (b) to misdemeanors, including forgery by
check under section 475, as long as the value of the check does not exceed $950. (§ 473,
subd. (b).) The Act added section 459.5, which classifies shoplifting as a misdemeanor
"where the value of the property that is taken or intended to be taken does not exceed
nine hundred fifty dollars ($950)." (§ 459.5, subd. (a).)
The Act also created a new resentencing provision under which certain individuals
may petition the superior court for a recall of sentence and request resentencing.
(§ 1170.18, subd. (a).) "A person who satisfies the criteria in section 1170.18 shall have
his or her sentence recalled and be 'resentenced to a misdemeanor . . . 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).)" (Rivera, supra, 233 Cal.App.4th at
p. 1092.)
" 'In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute." (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) " 'In

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determining intent, we look first to the words themselves. [Citations.] When the
language is clear and unambiguous, there is no need for construction. [Citations.] When
the language is susceptible of more than one reasonable interpretation, however, we look
to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to
be remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part. [Citations.]'
[Citation.] We also ' "refer to other indicia of the voters' intent, particularly the analyses
and arguments contained in the official ballot pamphlet." [Citation.]' [Citation.] 'Using
these extrinsic aids, we "select the construction that comports most closely with the
apparent intent of the [electorate], with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences." ' " (People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007,
1014.)
II
SECOND DEGREE BURGLARY CONVICTION
Hudson pled guilty to second degree burglary based on his act of entering a bank,
falsely impersonating another person, with the intent to commit a felony by signing
someone else's name to a check. The question presented is whether the circumstances of
the offense entitle Hudson to resentencing under the Act. The inquiry is one of statutory
interpretation, which we review de novo. (People v. Ravaux (2006) 142 Cal.App.4th
914, 919.)

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Section 459.5 defines "shoplifting" as: (1) entry into a commercial establishment;
(2) while that establishment is open during regular business hours; (3) with the intent to
commit larceny; and (4) the value of the property that is taken or intended to be taken
does not exceed $950. Hudson argues elements 1, 3 and 4 in this appeal. As we shall
explain, the trial court did not err in refusing to resentence Hudson's second degree
burglary conviction as, while a bank is a commercial establishment and Hudson's actions
qualified as larceny, Hudson failed to carry his burden of showing that he was eligible for
resentencing.
A. Commercial Establishment
The trial court denied the petition finding that a bank is not a commercial
establishment under the Act. Hudson asserts the trial court erred because the plain
language of section 459.5 and the legislative intent behind the Act compel the conclusion
that a "commercial establishment" as used in the new shoplifting statute must be broadly
construed to include a bank.
The Act does not define the term "commercial establishment." The People note
there are no published cases in California addressing whether a bank constitutes a
commercial establishment. However, in cases published after the People filed their
respondent's brief, the People conceded that a bank constituted a commercial
establishment. (People v. Root (2016) 245 Cal.App.4th 353, 356 (Root), review granted
May 11, 2016, S233546; People v. Triplett (2016) 244 Cal.App.4th 824, 829, 831, review
granted April 27, 2016, S233172 [plea agreement established defendant entered a bank

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and the People conceded at a hearing on the petition that defendant entered a commercial
establishment].)
Focusing on the common definition of "shoplifting," the People contend a bank is
a financial business where transactions are held, not a commercial establishment where
items are on display for sale. (Black's Law Dict. (10th ed. 2014) p. 1590 [defining
shoplifting as "[t]heft of merchandise from a store or business; specif., larceny of goods
from a store or other commercial establishment by willfully taking and concealing the
merchandise with the intention of converting the goods to one's personal use without
paying the purchase price."].) The plain language of section 459.5 compels the
conclusion that a bank qualifies as a commercial establishment.
The People erroneously focus on the word "shoplifting," which is not an element
of the crime. Rather section 459.5 gives shoplifting a more technical definition involving
four separate elements, including entry into a commercial establishment. Significantly,
the Act does not define shoplifting according to its common meaning and there is nothing
in the text of the Act to support a conclusion that the voters intended to adopt the
common meaning of shoplifting.
The court in In re J.L (2015) 242 Cal.App.4th 1108 discussed the definition of
"commercial establishment" in the context of a minor stealing a cell phone from the high
school locker of another student. (Id. at p. 1111.) The J.L. court affirmed the
adjudication of the minor for burglary, holding the location of the theft did not occur at a
"commercial establishment" as contemplated by section 459.5. (J.L., supra, at p. 1114.)
The J.L. court noted that the commonsense meaning of the term commercial

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establishment "is one that is primarily engaged in commerce, that is, the buying and
selling of goods or services. That commonsense understanding accords with dictionary
definitions and other legal sources. (Webster's 3d New Internat. Dict. (2002) p. 456
['commercial' means 'occupied with or engaged in commerce' and 'commerce' means 'the
exchange or buying and selling of commodities esp. on a large scale']; The Oxford
English Reference Dict. (2d ed. 1996) p. 290 [defining 'commerce' as 'financial
transactions, esp. the buying and selling of merchandise, on a large scale']; Black's Law
Dict. (10th ed. 2014) p. 325 ['commercial' means '[o]f, relating to, or involving the
buying and selling of goods; mercantile']; see also 37 C.F.R. § 258.2 [copyright
regulation defining the term 'commercial establishment' as 'an establishment used for
commercial purposes, such as bars, restaurants, private offices, fitness clubs, oil rigs,
retail stores, banks and financial institutions, supermarkets, auto and boat dealerships,
and other establishments with common business areas']; Gov. Code, § 65589.5,
subd. (h)(2)(b) [defining 'neighborhood commercial' land use as 'small-scale general or
specialty stores that furnish goods and services primarily to residents of the
neighborhood']; People v. Cochran (2002) 28 Cal.4th 396, 404-405 [quoting dictionary
definition of commerce, ' "[t]he buying and selling of goods, especially on a large scale," '
in interpreting statutory phrase 'commercial purpose'].)" (J.L., supra, at p. 1114.)
Because "commercial" involves being engaged in commerce, including financial
transactions, we conclude that the term "commercial establishment" includes a bank. The
People attempt to narrow the term "commercial establishment" to businesses where items
are offered for sale. We acknowledge that a common understanding of the word

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"commercial" encompasses the buying and selling of merchandise in a retail
establishment. However, nothing in the text of the Act supports this narrow
interpretation and we reject it.
Even assuming the term "commercial establishment" is ambiguous, we must
effectuate the intent of the voters who passed the initiative measure. (People v. Briceno
(2004) 34 Cal.4th 451, 459.) Additionally, we must read a statute " 'with reference to the
entire scheme of law of which it is part so that the whole may be harmonized and retain
effectiveness.' " (People v. Pieters (1991) 52 Cal.3d 894, 899.) The "Findings and
Declarations" state that the Act requires "misdemeanors instead of felonies for
nonserious, nonviolent crimes . . . unless the defendant has prior convictions for specified
violent or serious crimes." (Historical and Statutory Notes, 32A Pt. 3 West's Ann. Gov.
Code (2016 supp.) foll. § 7599, p. 163, § 3, subd. (3).) The Act directs that it is to be
broadly and liberally construed to achieve its stated purpose of requiring misdemeanors
instead of felonies for nonserious, nonviolent crimes. (Id. at p. 163, §§ 3, subd. (3), 15;
p. 164, § 18.) Here, entering a bank and attempting to cash a forged check is precisely
the type of nonviolent crime encompassed by the Act.
B. Larceny
To constitute shoplifting the entry must be into a commercial establishment "with
the intent to commit larceny." (§ 459.5.) Hudson contends the conduct for which he
sustained his second degree burglary conviction falls within the scope of "larceny" as
encompassed by section 459.5. The People do not address this argument in their
respondent's brief.

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The California Supreme Court will ultimately resolve the question as it is currently
reviewing 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. (People v. Gonzales
(2015) 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171 [entry into a bank to
cash a forged check was not larceny within the meaning of section 459.5]; People v.
Vargas (2016) 243 Cal.App.4th 1416, review granted March 30, 2016, S232673 [entry
into check cashing establishment with intent to commit theft by false pretenses by
cashing a forged check was an intent to commit "larceny"].) Until 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.
C. Remaining Elements
As we discussed, a bank is a commercial establishment and Hudson's actions
qualified as larceny. (Pt. II.A & B, ante.) To be eligible for resentencing, however, the
entry into the establishment must have been during regular business hours and the value
of the property taken or intended to be taken must not have exceeded $950. (§ 459.5,
subd. (a).) The parties do not address whether Hudson entered the bank during its normal
business hours. Regarding the value of the property he intended to take, Hudson asserts
the trial court erred when it found that he intended to take more than $950 because the
trial court came to this conclusion by looking at information in the postconviction probation
report and thus outside the record of conviction. He contends the record of conviction did

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not disclose sufficient facts establishing the nature of the offense or the value of the
property; thus, the trial court was required to presume that the conviction was for the
"least offense punishable" which, here, would be misdemeanor shoplifting.
Section 1170.18 is silent as to which party has the burden of establishing
eligibility for resentencing. It is well established, however, that a party seeking relief
typically carries the burden of proof as to each fact necessary to the party's claim for
relief, unless a different burden is specifically assigned by law. (Evid. Code, § 500.)
Accordingly, the defendant bears the burden of demonstrating eligibility for relief under
the Act. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow); People v. Rivas-
Colon (2015) 241 Cal.App.4th 444, 448-449.)
Here, the record shows that Hudson pled guilty to second degree commercial
burglary. His guilty plea "constitutes an admission of every element of the offense
charged and constitutes a conclusive admission of guilt" and "obviate[d] the need for the
prosecution to come forward with any evidence." (People v. Turner (1985) 171
Cal.App.3d 116, 125.) Thus, the record of conviction establishes Hudson was guilty of
second degree burglary.
In Sherow, we held that the petitioner has the burden of presenting evidence
showing eligibility for resentencing under the Act. (Sherow, supra, 239 Cal.App.4th at
p. 880.) Hudson presented no evidence below that he entered the bank during its regular
business hours; thus, he failed to meet his initial burden of showing eligibility for
resentencing. (§ 459.5, subd. (a).) Hudson similarly failed to carry his burden of
showing the value of the property he intended to take did not exceed $950. (Ibid.) On

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both elements, Hudson could have presented new evidence to establish eligibility for
resentencing. (Sherow, supra, at pp. 879-880.)
Hudson asserts Sherow, supra, 239 Cal.App.4th 875 was wrongly decided as it
suggests that the trial court is empowered to look beyond the record of conviction in
determining whether a petitioner's offense qualifies for relief under the Act. To the
extent Hudson contends a petitioner under the Act is limited to the record of conviction
to prove sentencing eligibility this argument works against him in situations where, as
here, the record is silent. (People v. Perkins (2016) 244 Cal.App.4th 129, 140, fn. 5 [in
many cases, "the value of the property was not important at the time of conviction, so the
record may not contain sufficient evidence to determine its value"; petitioners may seek
to meet their burden on this issue by "submit[ting] extra-record evidence probative of the
value when they file their petitions for resentencing"].) Sherow does not address a
situation where the People went outside the record of conviction to prove resentencing
eligibility. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 ["[I]t is axiomatic that cases
are not authority for propositions not considered."].)
Finally, contrary to Hudson's assertion, on this silent record we cannot presume
that his conviction was for the "least offense punishable" which, here, would be a
misdemeanor shoplifting. For this proposition, Hudson relies on People v. Williams
(1990) 222 Cal.App.3d 911 (Williams). Williams held that "[i]n determining the nature
of a prior conviction allegation, the 'court may look to the entire record of the
conviction . . . but when the record does not disclose any of the facts of the offense

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actually committed, the court will presume that the prior conviction was for the least
offense punishable . . . .' [Citation.]" (Id. at p. 915.)
Williams is inapposite because it concerned the use of multiple hearsay statements
in a probation report in the context of determining beyond a reasonable doubt whether a
prior conviction allegation was true for sentence enhancement purposes under the Three
Strikes law. (Williams, supra, 222 Cal.App.3d at pp. 917-918.) In this situation, the
prosecution has the burden of establishing enhancements apply. (People v. Towers
(2007) 150 Cal.App.4th 1273, 1277 ["The prosecution bears the burden of proving
beyond a reasonable doubt that a defendant's prior convictions were for either serious or
violent felonies."].) On a silent record, the prosecution cannot meet its burden to show
the nature of the prior offense triggered a sentence enhancement. Here, the issue before
the trial court was not a sentence enhancement that required the People to present proof
beyond a reasonable doubt.
Based on these conclusions, we need not, and therefore do not, address Hudson's
argument that the trial court erred by relying on evidence outside the record of conviction
presented by the People.
III
FORGERY CONVICTION
"Every person who possesses any completed check, money order, traveler's check,
warrant, or county order, whether real or fictitious, with the intent to utter or pass or
facilitate the utterance or passage of the same, in order to defraud any person, is guilty of
forgery." (§ 475, subd. (c).) Under the Act, "any person who is guilty of forgery relating

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to a check, bond, bank bill, note, cashier's check, traveler's check, or money order, where
the value of the check, bond, bank bill, note, cashier's check, traveler's check, or money
order does not exceed nine hundred fifty dollars ($950)," is guilty of a misdemeanor,
subject to exceptions not relevant here. (§ 473, subd. (b).)
Hudson asserts nothing in the record of conviction supported a finding that the
value of the check underlying his forgery conviction exceeded $950. In any event, he
contends the legislative intent behind the Act as well as settled law establishes that a
forged instrument has only intrinsic value, such that the term "value" as used in section
473 must be interpreted to mean the value of the forgery and not the amount written on
the face of the forged instrument.
Again, Hudson failed to carry his burden of showing that the value of the check
did not exceed $950. (Sherow, supra, 239 Cal.App.4th at p. 879.) Thus, we do not
address his remaining argument that the term "value" as used in section 473 must be
construed to mean the value of the forgery and not the amount written on the face of the
check.

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DISPOSITION
The order denying Hudson's petition for recall of his felony prison sentences and
for resentencing is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.

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