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Filed 4/27/16 P. v. Oviedo CA4/2

See Dissenting Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 Respondent,

v.

JESSE OVIEDO,

Defendant and Appellant.

E063216

(Super.Ct.No. RIF1105870)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, 

Judge. Affirmed.

Cindy Brines, 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, and Marvin E. Mizell and 

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant, Jesse Oviedo, filed a petition for resentencing pursuant 

to Penal Code section 1170.18,

1 which the court denied. On appeal, defendant contends 

the court erred in denying his petition. We affirm. 

I. FACTS AND PROCEDURAL HISTORY

On June 29, 2012, the People charged defendant by information with six counts of 

second degree burglary (§ 459, counts 1-4, 7, & 9), unlawfully obtaining personal 

identifying information for the purpose of obtaining value (§ 530.5, count 5), and two 

counts of signing the name of another person for the payment of money (§ 470, subd. (a), 

counts 6 & 8). The People additionally alleged defendant had suffered a prior strike 

conviction. (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

On December 19, 2013, defendant pled guilty to one count of second degree 

burglary and admitted the prior strike conviction. In return, all remaining charges were 

dismissed and the People agreed to a sentence consisting of the low term of 16 months, 

doubled to 32 months pursuant to the prior strike conviction. 

The court asked defendant if it was “true that on October 7th, 2011, in the County 

of Riverside, you went into a place in Norco with the idea to commit a theft or some 

felony inside; is that true?” Defendant answered, “Yes.” Defendant’s plea agreement 

reflects that the factual basis for the plea consisted of defendant’s agreement that he “did 

the things that are stated in the charges that I am admitting.” The minute order reflects 

that the court found the “factual basis for the plea is based on [the] Oral Statement [of] 

 

1

 All further statutory references are to the Penal Code unless otherwise indicated.
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Defendant on the record.” On February 7, 2014, the court sentenced defendant to 32 

months’ incarceration.

On November 18, 2014, defendant filed a petition for resentencing. On December 

19, 2014, the People filed a response stating defendant was ineligible for resentencing 

pursuant to section 1170.18 because his burglary was not of a commercial establishment. 

On February 27, 2015, the People filed a formal opposition to defendant’s motion 

in which they recounted the facts pertaining to the initial charges filed against defendant. 

According to the People, defendant had entered the office of a temporary employment 

agency on three separate occasions on three separate dates identifying himself as the 

victim and requesting the victim’s paychecks in the amounts of $231.83, $178.86, and 

$128.00, respectively. Thereafter, when the victim came to pick up his paychecks, 

agency personnel discovered they had given the paychecks to the wrong person. On a 

fourth date, defendant entered the agency’s office and requested another of the victim’s 

paychecks, at which time agency personnel called the police and defendant was arrested.

The People argued that the temporary employment agency did not meet the 

definition of a “commercial establishment” such that defendant would be entitled to 

resentencing pursuant to section 1170.18 for a misdemeanor conviction under the newlycreated crime of shoplifting under section 459.5. On March 13, 2015, defendant filed a 

formal reply in which he maintained that the temporary employment agency qualified as 

a “commercial establishment” under the shoplifting statute such that defendant should be 

resentenced to the misdemeanor offense.
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At the hearing on the petition on March 13, 2015, the court stated: “[W]hen you 

use the word ‘shoplifting,’ you get the vision of somebody going into Walmart and 

stealing a, you know, box of Tide or whatever, but the question is how much farther than 

the clear-cut case of going into a retail store and stealing something does the word 

‘shoplifting’ reach. And one parameter is commercial establishment, which could well 

include a bank. [¶] But this is another step. This is an employment agency where the 

gentleman goes in and claims he’s somebody else and gets their check. So I’m ruling 

that’s beyond even [an] expanded definition of commercial establishment, and, therefore, 

the motion is denied.”

II. DISCUSSION

Defendant contends the court erred in declining to recharacterize, pursuant to 

section 1170.18, defendant’s conviction for second degree burglary as a misdemeanor 

conviction for shoplifting under section 459.5. Thus, defendant contends the court erred 

in denying his motion for resentencing. We disagree. 

“‘On November 4, 2014, the voters enacted Proposition 47, “the Safe 

Neighborhoods and Schools Act” (hereafter Proposition 47), which went into effect the 

next day. [Citation.]’ [Citation.] ‘Proposition 47 makes certain drug- and theft-related 

offenses misdemeanors, unless the offenses were committed by certain ineligible 

defendants. These offenses had previously been designated as either felonies or wobblers 

(crimes that can be punished as either felonies or misdemeanors).’ [Citation.] To this 
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end, Proposition 47 . . . added sections 459.5 . . . and 1170.18 to the Penal Code . . . .

[Citation.]” (People v. Contreras (2015) 237 Cal.App.4th 868, 889-890.)

“Section 459.5 defines the crime of ‘shoplifting.’ It provides, in relevant part:

‘(a) 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 shall be 

punished as a misdemeanor . . . [¶] (b) 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.’” (People v. Contreras, supra,

237 Cal.App.4th at pp. 890-891.) Section 459.5 does not define “commercial 

establishment.”

“‘Proposition 47 also created a new resentencing provision: section 1170.18. 

Under section 1170.18, a person “currently serving” a felony sentence for an offense that 

is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and 

request resentencing in accordance with the statutes that were added or amended by 

Proposition 47. [Citation.] 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 
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unreasonable risk of danger to public safety.” [Citation.]’ [Citation.]” (People v. 

Contreras, supra, 237 Cal.App.4th at p. 891.) 

“‘“In interpreting a voter initiative . . . we apply the same principles that govern 

statutory construction. [Citation.] Thus, ‘we turn first to the language of the statute, 

giving the words their ordinary meaning.’ [Citation.]”’ [Citations.] ‘“The statutory 

language must also be construed in the context of the statute as a whole and the overall 

statutory scheme [in light of the electorate’s intent]. [Citation.] When the language is 

ambiguous, ‘we refer to other indicia of the voters’ intent, particularly the analyses and 

arguments contained in the official ballot pamphlet.’ [Citation.]” [Citation.] In other 

words, “our primary purpose is to ascertain and effectuate the intent of the voters who 

passed the initiative measure.”’ [Citation.] Our review is de novo. [Citation.]” (In re 

J.L. (2015) 242 Cal.App.4th 1108, 1113-1114.)

“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” (construing statutory 

term)]; 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.”].)
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In In re J.L., the minor argued that his conviction for felony burglary based on his 

theft of a cell phone from a school locker should have been reduced to misdemeanor 

shoplifting pursuant to section 1170.18. (In re J.L., supra, 242 Cal.App.4th at p. 1113.) 

The court disagreed, holding that: “Whatever broader meaning ‘commercial 

establishment’ as used in section 459.5 might bear on different facts, [the minor’s] theft 

of a cell phone from a school locker room was not a theft from a commercial 

establishment.” (Id. at p. 1114.) The court reasoned that: “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. That commonsense 

understanding accords with dictionary definitions and other legal sources. [Citations.]” 

(Ibid.) “We believe the voters enacting Proposition 47 understood the reference to 

‘shoplifting’ in the voter information guide materials, including in the title and text of 

section 459.5, in the same way. Shoplifting is commonly understood as theft of 

merchandise from a store or business that sells goods to the public. [Citations.]” (Id. at 

pp. 1114-1115.)

We agree with In re J.L. that the intent behind the enactment of the section 459.5 

misdemeanor crime of shoplifting was to punish the purloining of goods from a retail 

establishment. (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 
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buying and selling of merchandise, on a large scale”]; Black’s Law Dict. (10th ed. 2014) 

p. 325, col. 2 [“commercial” means “[o]f, relating to, or involving the buying and selling 

of goods; mercantile”]; People v. Cochran (2002) 28 Cal.4th 396, 404-405 [citing the 

dictionary definition of commerce as “‘[t]he buying and selling of goods, especially on a 

large scale,’” in interpreting the statutory phrase “‘commercial purpose’”]; People v. 

Contreras, supra, 237 Cal.App.4th at p. 872 [defendant convicted of shoplifting under 

§ 459.5 for stealing seven pairs of jeans from a “retail store”]; People v. Gonzales (1965) 

235 Cal.App.2d Supp. 887, 892 [describing shoplifting as “the practice whereby 

customers enter a turnstile, have free access to all the shelves displaying wares and 

merchandise, and the proper payment for merchandise taken away from the store depends 

upon the customer properly declaring it at the check-out or cashier’s stand.”] .) 

Indeed, “shoplift” is a compound word that when deconstructed consists of the 

words “shop” and “lift.” A “shop” is commonly interpreted as a retail establishment 

involved in the sale of goods. To “lift” something is to steal it, either surreptitiously or 

brazenly by taking the object and dashing outside the “shop.” (Black’s Law Dict., supra,

p. 1598, col. 1 [defining shoplifting as the “[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.”].)
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Here, the temporary employment agency was not a commercial establishment for 

purposes of the shoplifting statue because it was not engaged in the buying and selling of 

goods. The court properly denied defendant’s petition for resentencing. 

III. DISPOSITION

The order is affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

I concur:

RAMIREZ

P. J.
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[People v. Ovieda, E063216]

MILLER, J., Dissenting.

I respectfully dissent. The trial court rejected defendant’s petition to recall 

his sentence (Petition) based solely on its determination that a temporary 

employment agency was not a commercial establishment. I disagree with the 

majority’s determination upholding the trial court’s decision and conclude that a 

temporary employment agency could properly be considered a commercial 

establishment within the meaning of shoplifting, as that term is defined in 

Proposition 47. I would remand to the trial court in order for the trial court to 

review defendant’s plea and consider whether he should be resentenced to 

misdemeanor shoplifting under Penal Code section 459.5. 

Proposition 47 added Penal Code section 1170.18. Subdivision (a) of Penal 

Code 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 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 Penal Code section 1170.18, subdivision (b), the trial court first 

determines whether the petition has presented a prima facie case for relief under 
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Penal Code section 1170.18, subdivision (a). If the petitioner satisfies the criteria 

in subdivision (a), then he will be resentenced to a misdemeanor, unless the court, 

within its discretion, determines the petitioner would pose an unreasonable risk to 

public safety. (Pen. Code, § 1170.18, subd. (b).)

Section 459.5 was added to the Penal Code by Proposition 47 and provides, 

“[n]otwithstanding [Penal Code s]ection 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).” 

“Commercial establishment” was not defined. 

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 
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selling of goods and services.” (<http://www.merriamwebster.com/dictionary/commerce> [as of Apr. 27, 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 

useful or valued.” (<http://www.merriam-webster.com/dictionary/commodities> 

[as of Apr. 27, 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 37 Code of Federal Regulations part 258.2 (2014), 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[.]”

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 [Penal Code] 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 
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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.) 

I conclude that commercial establishment is reasonably interpreted to 

include those businesses engaged in the buying and selling of services. A 

temporary employment agency is engaged in the buying and selling of services. I 

note that in their respondent’s brief, the People made no argument to the contrary, 

essentially conceding that a temporary employment agency is a commercial 

establishment. 

I disagree with the majority’s conclusion that a commercial establishment 

must be engaged in the buying and selling of goods. The majority relies upon the 

common understanding of the term “shop” and “lift.” However, the voters 

approved Proposition 47, which provides a definition of shoplifting that is 

different from the ordinary meaning. The term “commercial establishment” is 

reasonably interpreted to include the buying and selling of goods and services. As 

such, the trial court erred by determining that the temporary employment agency 

was not a commercial establishment.

The majority does not address the People’s further argument that defendant 

entered the employment agency with two intents: to commit a felony (identity 

theft) and theft. The People insist that defendant’s entry with the intent to commit 

identify theft constitutes a felony even after the enactment of Proposition 47. 
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Defendant has responded that when he entered his plea in open court, he pleaded 

guilty to second degree burglary based on his entry with the intent to commit theft 

or a felony. The nature of a plea is a factual question that must first be decided by 

the trial court. (People v. Contreras (2015) 237 Cal.App.4th 868, 892 [“The trial 

court’s decision on a [Penal Code] section 1170.18 petition is inherently factual, 

requiring the trial court to determine whether the defendant meets the statutory 

criteria for relief”].)

The trial court did not address whether defendant entered the employment 

agency with the intent to commit larceny.

I would remand this matter in order for the trial court to review the plea and 

record of conviction to determine if defendant is eligible for resentencing under 

Proposition 47. 

MILLER

J.