Filed 11/9/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. MARK ANTHONY COLBERT, Defendant and Appellant. H042499 (Santa Clara County Super. Ct. No. 206805)

Defendant Mark Anthony Colbert appeals from an order denying his petition to redesignate certain felony convictions as misdemeanors under Proposition 47 , the Safe Neighborhoods and Schools Act. On appeal, Colbert contends the trial court erred in ruling t he se convictions were eligible for redesignation

. 1
We find no merit to Colbert ‟s arguments and will affirm the order

. I. F ACTUAL AND P ROCEDURAL B ACKGROUND 2 Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six year prison term he incurred due to a robbery he

c ommitted in San Mateo County while out on bail on the burglary charges.

1 Unspecified statutory references are to the Penal Code. 2 By order dated November 4, 2015, we denied Colbert‟s request to take judicial notice of the trial record in Santa Clara County Superior Court case No. 206805. On the court‟s own motion, we take ju dicial notice of this court‟s unpublished opinion on the direct appeal from that case, People v

. Colbert (Feb. 29, 2000, H019315).2

A

. Facts relating to Count 1 “On December 26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk about lo ttery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone. ” ( People v. Colbert , supra , H019135.) “[A]bout $300 in cash was taken [in this burglary].” 3

B

. Facts relating to Count 2

“ On December 30, 1996, Maria Ramirez, t he manager of a 7

- Eleven store i n Sunnyvale, saw two men enter the store t ogether and then separate. O ne stayed at the front register and purchased lottery tickets and the other went to a back room, came out of it, and left the store. The other then left the store. Both men were six feet tal l and were between the ages of 20 to 30 years old. Appellant is under six feet tall and was 40 years old. ” ( People v. Colbert , supra , H019135.) The trial court‟s May 12, 2015 order noted that “approximately $31 8 dollars [ sic ] was taken [in this burglary].”
C

. Facts relating to Count 3

“ On January 6, 1997, Chuong Do an was working at a 7

- Eleven store in Los Gatos
when two Black men entered the store. The taller man asked to use the rest room, which
Doan would no t allow. While the shorter man bought a lottery ticket, the taller man „ j ust walked through. ‟ They then left the store together. Thu Cates, t he franchisee, saw a
Black man closing the door to the office and later fou nd a bank deposit bag missing.

3 Our prior unpublished opinion did not specify the amounts taken in each burglary, with the exception of count 4 in which no money was taken. With respect to counts 1, 2 and 3 we derive the amounts taken from the trial court‟s May 12, 2015 order denying Colbert‟s petition for redesignation.3

When the man saw Thu, he stated that he was looking for the bathroom. She was unable to identify anyone in a p hoto lineup. Anothe r employee on her way to work saw two Black men, one with lotto tickets in his hand, get into a maroon car with a dent on the
side. She was unable to identify anyone in a photo lineup.

“ However, a month later, Doan ident ified appellant from the photo lineup, and at the preliminary hear ing in May 1997, he identified appellant as a man who had been in
the st ore. At trial he was unable to positively identify appellant

. ” ( People v. Colbert , supra , H019135.) According to the trial court‟s May 12, 2015 order, the ba nk deposit bag taken in this burglary contained “more than $3000.”
D

. Facts relating to Count 4

“ On January 27, 1997, Mohammed Elissa, cashier at a 7

- Eleven store in Los Gatos, observed two Black men enter the store together and then split up. The shorter
one remained at the cash register and was involved with lottery tickets and the taller man
pro ceeded to the wine cooler and „vanished.‟ Elissa went to the store office and saw the
tall man with a cup of coffee. The man said he was looki ng for the manager and then he
left the area. The tall man told the othe r to pay for the coffee, which he did. The two men left the store together. Elissa wrote down the license plate number of their car. The tall man asked Elissa if there was a problem. No money was missing from the store on January 27. About a week after the incident, Elissa identified appellant in a photo lineup
as the shorter man. ” ( People v. Colbert , supra , H019135.)
E

. Colbert ‟ s petition to redesignate under Proposition 47 On May 6, 2015, Colbert petitioned the trial court to redesignate certain of his felony convictions for second degree burglary as misdemeanors pursuant to
section 117 0 .18, subdivision (f). By written order date d May 12, 2015, the trial court denied Colbert‟s petition, finding that he was not eligible for the relief requested. The trial court noted that, in each case, “[Colbert] and an accomplice entered an establishment4

and, while one of them distracted the cas hier

. . . , the other snuck into the non

- public areas of the building to commit the intended thefts.” As a result, the offenses were based “upon entry into a private

. . . office area and not a commercial establishment that was open during business hours ” and could not qualify as “shoplifting” under section 459.5. As an additional basis for denying relief, the trial court noted that the amount stolen in

c ount 2 was over $950. Because Colbert and his accomplice employed the same “modus operandi” in each theft, it “strongly suggests that the amount intended to be taken in each case exceeded $950.” Colbert timely appealed.
II. D ISCUSSION Colbert argues he was entitled to redesignation of the three counts at issue because they all involved theft of less th an $950 from a commercial establishment during business
hours. According to Colbert, t he trial court erred by finding that the thefts were based on entry into “private

. . . office area.” He further argues i t erred by finding, without any supporting evidence, that Colbert and his companion “intended to take” more than $950 from the stores they entered.
A

. Overview of Proposition 47 Under Proposition 47, an individual who has completed his or her sentence fo r a felony conviction can file a peti tion with the trial court to have the conviction designated as a misdemeanor, so long as that conviction would have qualified as a misdem eanor under Proposition 47 had its provisions b een in effect at the time of the of fense. (§ 1170.18, subd. (f).) If a petitioner‟s application satisfies the requirements se t forth under section 1170.18, subdivision (f), the court “shall designate the felony offense or
offenses as a misdemeanor.” ( Id

. , subd. (g).) 4 No hearing is nece ssary in order to grant an application filed under section 1170.18, subdivision (f ). ( Id

. , subd. (h).)

4 A petition er is not eligible to have his felonies designated as misdemeanors if h e or she has one or more prior convictions for an offense specified in sect ion 667,5

Among the crimes reduced to misdemeanors by Proposition 47 “ are certain second degree burglaries where the defendant enters a commercial establishme nt with the intent
to steal. Such offense is now characterized as shoplifting as defined in new
section 459.5. ” ( People v

. Sherow (2015) 239 Cal.App.4th 875, 879 .) Section 459.5, subdivision (a) , provides: “ 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 dollar s ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary.”
B

. Analysis It is undisputed that Colbert and his accomplice entered into commercial establishments during regular business hours with larcenous intent . The question is whether separate office areas

— areas off

- limits to the general public

— within an establishment are to be con sidered an undivided part of that commercial establishment
under section 459.5 , or are those areas to be treated separately? In ot her words, by crossing the threshold into the se office areas did Colbert and his accomplice exit the “commercial ” part of the establishme nt and enter a discrete area where their thefts could not be considered shoplifting ? We think they did.

“ Giving the te rm 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. (Webste r‟ s 3d New Internat. Dict. (2002) p. 4 56 [„commercial‟ means

„ occup ied with or engaged in commerce‟ and „commerce‟ means „ the exchange or buying and selling of co mmodities esp. on a large scale‟ ]; The Oxford English Reference Dict.

subdivision (e)(2)(C)( iv) or for an offense that requires r egistration under section 290, subdivision (c). (§ 1170.18, subd. (i).) It is undisputed that these provisions do n ot apply to Colbert.6

(2d ed. 1996) p. 290 [defining „commerce‟ as „ financial transactions, esp. the buying and selling o f merchandise, on a large scale‟]; Black‟ s Law Dict. (10th ed. 2014) p. 325 [„commercial ‟ means „ [o]f, relating to, or involving the buying a nd selling of goods; mercantile‟ ]; se e 37 C.F.R. § 258.2 (2015) [copyrigh t 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
institu tions, supermarkets, auto and boat dealerships, and other establishm ents with common business areas‟ ]; Gov. Code , § 6558 9.5, subd. (h)(2)(B) [defining „neighborhood commercial‟ land use as „ small

- scale general or specialty stores that furnish goods and ser vices primarily to residents of the neighborhood‟ ]; People v

. Cochran (2002) 28 Cal.4th 396, 404

- 405 [quoting dict ionary definition of commerce,

„ “ [t]he buying and selling of goods, especially on a large scale,” ‟ in interpreting statutory ph rase „commerc ial purpose‟ ].) ” ( In re J

. L

. (2015) 242 Cal.App.4th 1108, 1114.) The office areas from which Colbert and his accomplice stole money were not areas in which goods were bough t and sold. There was no merchandise offered for sale in those offices, or at leas t there is no evidence in the record suggesting there w as

. Colbert was not interested in stealing the goods on offer in these establishments, otherwise he and his accomplice would have remained in the area where those goods were displayed rather than intr uding into the private areas where the employees were likely to keep their personal belongings, such as purses and wallets, and where the business was likely to store larger amounts of cash. Based on this finding, we need not address the alternative basi s for the trial court‟s denial of Colbert‟s petition, i.e., that Colbert intended to take property valued in excess of $950 . Assuming we needed to reach the issue, however, we think the trial court‟s finding on this question is not supported by the limited evidence available

. It is true that the7

actual amount Colbert was able to take was less than $950 in three of the four counts. 5
The most that can said about Colbert‟s intent is that he and his accomplice intended to
take whatever they could , of whatever value, from the offices they entered . There is no evidence that property valued in excess of $950 was customarily present in those back

rooms , let alone that Colbert or his accomplice believed that to be the case. I t was therefore a matter of circumstance, not intent , which dictated the value of the property
taken

. III. D ISPOSITION The order denying the petition for resentencing is affirm ed

.

5 To recap, in count 1, $300 was taken. In count 2, Colbert and his accomplice made off with approximately $318. In count 4, they took nothing, but only because the cashier walked into the back office and interrupted Colbert‟s accomp lice.Premo, J.

I CONCUR:

Grover, J.

People v. Colbert H042499RUSHING, P.J., Dissenting

I respectfully dissent. In my view, Colbert‟s conduct constituted shoplifting under the plain language of Penal Code section 459.5. Because Colbert has established his eligibility for resentencing under Proposition 47, I would reverse the trial court‟s order denying the petition.
In each of the four offense s, Colbert and his companion entered a commercial establishment during business hours. They employed the same modus operandi in each instance: While Colbert distracted the store clerk, Colbert‟s companion snuck into a back
office to steal cash. In count 1, the companion stole about $300 in cash at a gas station. In count 2, he stole about $316 in cash at a 7

- Eleven convenience store. In count 3, he stole more than $3,000 in cash at another 7

- Eleven. 1 In count 4, also at a 7

- Eleven, he was interrupted before he could take anything. 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 tak en does not exceed nine hundred fifty dollars ($950).” (Pen. Code, § 459.5, subd. (a).) There is no dispute that each of the
four offenses occurred at a “commercial establishment”

— e.g., a gas station and three convenience stores. There is also no disput e that Colbert and his companion entered the establishments during business hours. The majority nonetheless reasons that Colbert and his companion did not commit shoplifting because in each instance the companion entered a private back office area to
take the property. The majority concludes that, by entering a private office, Colbert and his companion exited the commercial part of the establishment and entered a discrete

area.

1 Because the value of the c ash stolen in count 3 exceeded $950, Colbert does not contend this count constituted shoplifting.2

I respectfully disagree. Under the plain language of the statute, a defendan t commits shoplifting as soon as he or she enters a commercial establishment with the requisite intent. As evidenced by their modus operandi, it is obvious both Colbert and his companion had the intent to commit larceny as soon as they set foot in each

es tablishment. At that point, the offense of shoplifting was complete. Whatever they did after entering the establishment was relevant only insofar as it revealed their preexisting intent to commit larceny. Nothing in the statute or any other authority ci ted by the majority defines a “commercial establishment” to exclude nonpublic areas of the structure in question. And I do not think a defendant can “exit” an establishment by entering an office inside it. The Second District Court of Appeal recently con sidered this issue in People v.
Hallam ( 2016 ) 3 Cal.App. 5 th 905. Hallam stole an air compressor from an employee rest room at a computer store. After pleading no contest to commercial burglary, he petitioned under Proposition 47 to designate the convicti on as misdemeanor shoplifting. The trial court denied the petition for resentencing on the ground that Hallam did not enter into an area of a commercial establishment to which the public has access and where merchandise is sold. The court of appeal rever sed, holding that “we find no indication that shoplifting can occur only in specific areas of a commercial establishment. Nor does there appear any requirement that the business‟s commercial activity must be taking place in the area from which the theft o ccurs in order to qualify the offense as shoplifting. The trial court thus added an element to the offense that is absent from the plain language of the statute itself when it determined that appellant's theft would qualify as shoplifting only if it occur red in an area of the commercial establishment open to the public where merchandise is sold.” ( Id. at p. 912.) I find this reasoning persuasive and squarely on point with the facts of this case.
The trial court here also ruled that the offenses did not constitute shoplifting based on a finding that Colbert intended to take more than $950 from each establishment. But3

the statute sets the threshold at “the value of the property that is taken or intended to be
taken

. . . .” (Pen. Code, § 459.5, subd. (a) .) This language sets the threshold at the objective value of the targeted property, not some subjective dollar amount in the defendant‟s mind. This makes sense because the defendant may have no specific monetary value in mind. Here, for example, Colber t and his companion apparently intended to take whatever cash they could find, regardless of whether it was $300 or $3,000. With the exception of count 3, I see no evidence that the property they intended to take was valued at more than $950. Because the value of the stolen property in

counts 1 and 2 fell within the $950 limit, I conclude those offenses constituted shoplifting. Accordingly, I would reverse the order denying the petition and remand for further proceedings to determine Colbert‟s eligibility on count 4 and his risk of danger to public safety.

_______________________________ RUSHING, P.J.

People v. Colbert H042499Trial Court: Santa Clara County Superior Court Superior Court No. 206805
Trial Judge: Hon. Linda R. Clark
Counsel for Plaintiff/Respondent: The People Kamala D. Harris Attorney General Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General

René A. Chacon Supervising Deputy Attorney General

Victoria Ratnikova Deputy Attorney General
Counsel for Defendant/Appellant: Mark Anthony Colbert Under appointment by the Court of Appeal Kimberly Taylor

People v. Colbert H0 42499