P. v. Castillo

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Filed 8/11/16 P. v. Castillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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.
ANGELA MARIE CASTILLO,
Defendant and Respondent.
E063407
(Super.Ct.No. RIF1303920)
OPINION
APPEAL from the Superior Court of Riverside County. Steven G.
Counelis, Judge. Affirmed.
Michael A. Hestrin, District Attorney, Emily R. Hanks, Deputy District
Attorney, for Plaintiff and Appellant.
Steven L. Harmon, Public Defender, Laura Arnold, Deputy Public
Defender, for Defendant and Respondent.
On January 8, 2014, defendant and respondent Angela Marie Castillo
entered a guilty plea to second degree burglary based on her entry into a Wells
Fargo bank to cash a check made out to herself on another person’s account. On

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November 14, 2014, voters passed Proposition 47, which reduced certain
nonserious, nonviolent felonies to misdemeanors and added misdemeanors to the
Penal Code. On December 2, 2014, defendant filed a petition to recall her
sentence (Petition) as required by Proposition 47, stating that her felony conviction
of second degree burglary should be reduced to a misdemeanor under Proposition
47. The trial court granted the Petition finding defendant had shown that her
felony conviction of second degree burglary constituted a violation of Penal Code
section 459.5,1 shoplifting, a misdemeanor added by Proposition 47.
Plaintiff and appellant the People of the State of California appeal from the
order granting the Petition. The People contend defendant failed to meet her
burden of proving eligibility for resentencing, and the trial court erred in granting
defendant’s Petition because she remained guilty of second degree burglary even
after Proposition 47. The People argue that defendant entered the bank to commit
identity theft, not larceny, which remained a felony after the passage of
Proposition 47. Further, the People contend that a bank is not a commercial
establishment within the meaning of section 459.5. These issues are currently
under review in the California Supreme Court in People v. Gonzales, review
granted on February 17, 2016, S231171 and in numerous other cases. We affirm
the trial court’s order granting the Petition.
1 All further statutory references are to the Penal Code unless otherwise
indicated.

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FACTUAL AND PROCEDURAL BACKGROUND
On December 11, 2013, defendant was charged in a felony complaint with
a violation of section 459, described as her willful and unlawful entry into a
building located at 1111 West Sixth Street in Corona with the intent to commit
“theft and a felony.” She was also charged with felony check forgery in violation
of section 475, subdivision (a) in that she did willfully and unlawfully have in her
possession a check belonging to another person on an account at Wells Fargo bank
in the sum of $120 with the intent to pass or utter the check.
On July 8, 2014, defendant signed a plea agreement in which she would
plead guilty to both counts plus an additional violation of section 12022.1, an out-
on-bail enhancement. On that same day, she entered a plea in court. The trial
court stated, “You’re charged in Count 1 with a violation of Penal Code 459, a
felony, that on or about October 15th of 2013 you entered a building at 1111 West
Sixth Street in Corona with intent to commit theft or a felony. [¶] To that charge
what is your plea?” Defendant responded, “Guilty.” As to count 2, the trial court
stated, “Count 2, that you committed a violation of Penal Code Section 475(a), a
felony, that on or about that same date and location you attempted to pass a check
to the account of Geoff A. Sigmund . . . at Wells Fargo, with the intent to commit
fraud or deceit. [¶] To that charge what is your plea?” Defendant responded,
“Guilty.” Defendant was sentenced to four years eight months. She was to spend
two years in custody at the Riverside County Jail and on probation for the
remainder of her term.

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Defendant filed the Petition on December 2, 2014. She checked the box
that she had been convicted of “Penal Code § 459 2nd Degree Burglary
(Shoplifting)” and that she believed the value of the check or property did not
exceed $950. She also stated that she was currently serving her sentence. The
People responded that a bank was not a commercial establishment. Both parties
filed briefs regarding resentencing. The People provided further argument that a
bank was not a commercial establishment and that defendant entered the bank to
commit a felony, specifically, felony identity theft and forgery.
The matter was heard on March 20, 2015. Relying on the plain language of
section 1170.18, the trial court found that a bank was a commercial establishment.
Without making any other finding, the trial court found that defendant’s violation
of section 459 was a misdemeanor violation of section 459.5. The trial court
struck the out-on-bail enhancement and reduced the violation of section 475,
subdivision (a) to a misdemeanor pursuant to section 1170.18.2 Defendant was out
of custody. She was given credit for time served and her probation was
terminated.
DISCUSSION
Proposition 47 added section 1170.18. Subdivision (a) of section 1170.18,
provides in pertinent part, “A person currently serving a sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have been guilty of a
misdemeanor under the act that added this section (‘this act’) had this act been in
2 The People do not appeal this determination.

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effect at the time of the offense may petition for a recall of sentence before the
trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health
and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, as those sections have been amended or added by this act.”
Under section 1170.18, subdivision (b) the trial court first determines
whether the petition has presented a prima facie case for relief under section
1170.18, subdivision (a). If the petitioner satisfies the criteria in subdivision (a),
then he or she will be resentenced to a misdemeanor, unless the court, within its
discretion, determines the petitioner would pose an unreasonable risk to public
safety. (§ 1170.18, subd. (b).)
In this case, defendant entered a guilty plea of burglary in violation of
section 459. Specifically, she pleaded guilty to entering “a building at 1111 West
Sixth Street in Corona with intent to commit theft or a felony.” Section 459 is not
listed in Proposition 47 and remains after the effective date of Proposition 47.
Second degree burglary, which is defined in relevant part as the entering of a
building other than a residence “with intent to commit grand or petit larceny or
any felony,” remains punishable as either a misdemeanor or a felony. (§§ 459,
461, subd. (b).)
However, Proposition 47 added section 459.5. Section 459.5 provides,
“[n]otwithstanding Section 459, shoplifting is defined as entering a commercial
establishment with intent to commit larceny while that establishment is open

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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).” (§ 459.5,
subd. (a).) As such, shoplifting consists of four elements, which must be found by
the trial court as follows: (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. (§ 459.5, subd. (a); see also People v. Contreras (2015) 237
Cal.App.4th 868, 892.) The crime of shoplifting, with certain exceptions not
relevant here, is punishable only as a misdemeanor.
Here, the parties do not dispute that the amount involved in the case was
less than $950. There also is no dispute that the bank was open during regular
business hours. The questions in this case are (1) whether defendant entered the
bank with the intent to commit larceny or a felony, and (2) whether the bank was a
commercial establishment.
The trial court assumed defendant entered the bank to commit larceny.
“Theft” is defined in section 484, subdivision (a) as follows: “Every person who
shall feloniously steal, take, carry, lead, or drive away the personal property of
another, or who shall fraudulently appropriate property which has been entrusted
to him or her, or who shall knowingly and designedly, by any false or fraudulent
representation or pretense, defraud any other person of money, labor or real or
personal property, or who causes or procures others to report falsely of his or her
wealth or mercantile character and by thus imposing upon any person, obtains

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credit and thereby fraudulently gets or obtains possession of money, or property or
obtains the labor or service of another, is guilty of theft.” As such, the term
“theft” includes theft by false pretenses, that is, “knowingly and designedly, by
any false or fraudulent representation or pretense, defraud[ing] any other person of
money, labor or real or personal property.” (Ibid.) Larceny is statutorily equated
with “theft.” Section 490a provides, “[w]herever any law or statute of this state
refers to or mentions larceny, embezzlement, or stealing, said law or statute shall
hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”
(See also People v. Nguyen (1995) 40 Cal.App.4th 28, 31.) The electorate “is
deemed to be aware of existing laws and judicial constructions in effect at the time
legislation is enacted.” (People v. Weidert (1985) 39 Cal.3d 836, 844.)
In People v. Nguyen, supra, 40 Cal.App.4th 28, the defendant was
convicted of three counts of burglary for giving worthless checks to the victims in
exchange for their property. On appeal, the defendant argued that he did not
intend to commit larceny but rather theft by false pretenses, which would not
support his burglary convictions. (Id. at pp. 30-31.) The appellate court rejected
this argument finding, “[I]n 1927, the Legislature amended the larceny statute to
define theft as including the crimes of larceny, embezzlement and obtaining
property by false pretense. [Citation.] At the same time, the Legislature also
enacted section 490a stating, ‘[w]herever any law or statute of this state refers to
or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter
be read and interpreted as if the word “theft” were substituted therefor.’

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[Citation.] Thus, the Legislature has indicated a clear intent that the term ‘larceny’
as used in the burglary statute should be read to include all thefts, including ‘petit’
theft by false pretenses.” (Id. at p. 31.)
The conclusion that larceny includes theft by false pretenses is also
supported by the intent of the voters. Proposition 47 was intended to “[r]equire
misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft
and drug possession, unless the defendant has prior convictions for specified
violent or serious crimes.” (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) text of Prop.
47, § 3, subd. (3), p. 70.) Petty theft by false pretenses is exactly the type of
nonserious, nonviolent crime that should be eligible for resentencing under
Proposition 47.
Here, defendant pleaded guilty to second degree burglary based on the
intent to commit theft or a felony. Her theft by false pretenses can be equated to
larceny under these circumstances. The Petition filed by defendant stated she had
been convicted of a violation of section 459 and that the check or property was
under $950. She also submitted additional facts that she entered the Wells Fargo
bank and attempted to cash a $120 fraudulent check. The teller determined that
her signature did not match the signature on file for the account. Defendant fled.
Defendant met her burden of establishing that her entry with the intent to commit
theft by false pretenses qualifies as shoplifting under section 459.5.
The People argue that defendant entered the bank to commit identity theft, a
felony. Identify theft is defined in in section 530.5, subdivision (a) as, “Every

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person who willfully obtains personal identifying information, as defined in
subdivision (b) of Section 530.55, of another person, and uses that information for
any unlawful purpose, including to obtain, or attempt to obtain, credit, goods,
services, real property, or medical information without the consent of that person,
is guilty of a public offense, and upon conviction therefor, shall be punished by a
fine, by imprisonment in a county jail not to exceed one year, or by both a fine and
imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.”
Here, the evidence could establish defendant had the intent to commit identity
theft. The trial court did not determine whether defendant entered with the intent
to commit a felony or to commit theft by false pretenses. A possible resolution
would be to remand to the trial court to determine whether the evidence
established that she entered with the intent to commit identity theft or theft by
false pretenses.
However, we cannot ignore that section 459.5, subdivision (b) states any
act of shoplifting shall be charged as shoplifting and that no person who is charged
with shoplifting may also be charged with burglary or theft of the same property.
As stated, defendant’s act of entering the bank constituted shoplifting. Based on
the plain language of section 459.5, subdivision (b), she could not be further
charged with burglary based on the intent to commit identify theft for this same
act.3 Proposition 47 did not modify section 459 as it applies to burglaries premised
3 We do not resolve whether this language would foreclose a separate
charge of identity theft as that issue is not before this court.

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on the intent to commit other felonies, such as intent to enter a bank to commit an
assault or a rape, it does foreclose those burglaries where the acts committed by
the defendant constitute shoplifting.
Further, we reject the People’s argument that a bank is not a commercial
establishment. Because the term “commercial establishment” was not defined in
the ballot initiative and is not defined in the Penal Code, we begin with the words
themselves, giving them their ordinary meaning. “A dictionary is a proper source
to determine the usual and ordinary meaning of a word or phrase in a statute.”
(E.W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn. 2; see
also Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-
1122 [“When attempting to ascertain the ordinary, usual meaning of a word, courts
appropriately refer to the dictionary definition of that word”]; Scott v. Continental
Ins. Co. (1996) 44 Cal.App.4th 24, 30, fn. omitted [“It is thus safe to say that the
‘ordinary’ sense of a word is to be found in its dictionary definition”].)
The Merriam-Webster Online Dictionary (2016) provides a simple
definition for commerce as follows: “activities that relate to the buying and
selling of goods and services.” (<http://www.merriam-
webster.com/dictionary/commerce> [as of July 26, 2016].) The full definition
includes, “the exchange or buying and selling of commodities on a large scale
involving transportation from place to place.” (Ibid.) “Commodity” is simply
defined as “something that is bought and sold” or “something or someone that is

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useful or valued.” (<http://www.merriam-webster.com/dictionary/commodities>
[as of July 26, 2016].)
Black’s Law Dictionary defines establishment as, “2. An institution or
place of business.” (Black’s Law Dict. (8th ed. 2004) p. 586, col. 1.) Commerce
is defined as “The exchange of goods and services, esp. large scale involving
transportation between cities, states, and nations.” (Id. at p. 285, col. 2.)
In the Code of Federal Regulations, pertaining to copyright law,
commercial establishment is defined 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[.]” (37 C.F.R § 258.2
(2014).)
In In re J.L. (2015) 242 Cal.App.4th 1108, 1114, the court found that
stealing a cellular telephone from a school locker did not qualify for resentencing
under Proposition 47. It determined that, “[w]hatever broader meaning
‘commercial establishment’ as used in section 459.5 might bear on different facts,
[the defendant]’s theft of a cell phone from a school locker room was not a theft
from a commercial establishment.” Thereafter, the court defined commercial
establishment as follows: “Giving the term its commonsense meaning, a
commercial establishment is one that is primarily engaged in commerce, that is,
the buying and selling of goods or services.” (Ibid, italics added.) Commercial
establishment is reasonably interpreted to include those businesses engaged in the

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buying and selling of services. A bank is engaged in the buying and selling of
services.
DISPOSITION
The order of the trial court is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.

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