IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

GUILLERMO VILLALOBOS VALENCIA,

Petitioner,

v.

RIVERSIDE COUNTY SUPERIOR COURT

Respondent.

)))))))))))))))))))

DOCKET NO. S(Ct. App. No. E063481;Sup. Ct. No. INF1302664)

THE PEOPLE OF THE STATE OF CALIFORNIA, BY THEIR ATTORNEY, MICHAEL HESTRIN, DISTRICT ATTORNEY FOR THE COUNTY OF RIVERSIDE,

Real Party in Interest.

PETITION FOR REVIEW

From the Order of the Court of Appeal Fourth Appellate District, Division Two Summarily Denying a Petition for Writ of Mandate

____________

STEVEN L. HARMONPublic Defender,County of Riverside LAURA ARNOLDSt. Bar No. 177978Deputy Public Defender30755 D Auld Rd., Ste. 2233Murrieta, CA 92563Telephone: (951) 304-5600Facsimile: (951) 304-5605

Attorneys for PetitionerGUILLERMO VILLALOBOS VALENCIA

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

GUILLERMO VILLALOBOS VALENCIA,

Petitioner,

v.

RIVERSIDE COUNTY SUPERIOR COURT

Respondent.

)))))))))))))))))))

DOCKET NO. S(Ct. App. No. E063481;Sup. Ct. No. INF1302664)

THE PEOPLE OF THE STATE OF CALIFORNIA, BY THEIR ATTORNEY, MICHAEL HESTRIN, DISTRICT ATTORNEY FOR THE COUNTY OF RIVERSIDE,

Real Party in Interest.

TO: THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:

Petitioner, Guillermo Villalobos Valencia, by and through his

attorney, hereby petitions this honorable court to grant review of the May

12, 2015 order of the Court of Appeal of the State of California, Fourth

Appellate District, Division Two, summarily denying his petition for writ

of mandate and remand the matter with instructions to the Court to issue an

Order to Show Cause and address the merits of the petition.1

1 The Court’s order summarily denying his petition is attached hereto as Exhibit A.

1

ISSUE PRESENTED

The instant Petition, filed on behalf of a criminal defendant pending

trial, raises a question of statutory construction of first impression and of

statewide importance, what was contemplated by the Voters when they

adopted Proposition 47 and created the new substantive offense of

“Shoplifting,” codified in Penal Code2 section 459.5?

WHY REVIEW SHOULD BE GRANTED

This court has supervisory jurisdiction over state criminal procedure,

and regrettably, for the third time in fourteen months, the Law Offices of

the Public Defender, on behalf of a criminal defendant, must request this

court’s assistance with respect to yet another summary denial of a writ

petition raising an important question of law in which a prima facie

showing has been made.3

Penal Code section 999a specifically authorizes a petition for a writ

of prohibition predicated upon the commitment of a defendant on an

information without reasonable or probable cause. (§999a.) The purpose of

2 Subsequent statutory references are to the Penal Code unless otherwise indicated.3 There is a disparity in the manner in which writ petitions filed by criminal justice agencies in Riverside County are treated by the Fourth District Court of Appeal, Division Two. Since January, 2010, 52% of writ petitions filed by the Public Defender have been summarily denied without any request for a response. In contrast, only 1.7% of petitions initiated by the District Attorney have suffered the same fate. See Exhibit A to Request for Judicial Notice, filed concurrently with this petition for review.

2

a writ of prohibition is to arrest proceedings of a trial court when such

proceedings are without or in excess of that court’s jurisdiction (Code

Civ.Proc. § 1102), and when there does not exist a plain, speedy, or

adequate remedy in the ordinary course of law. (Code Civ.Proc. § 1103.)

The function of the writ is “to provide a remedy when rigidity of the

ordinary procedure fails to protect a litigant from the wrongful exercise of

jurisdiction by a court.” (C.S. Smith Metropolitan Market Co. v. Superior

Court in and for Los Angeles County (1940) 16 Cal.2d 226, 228.)

Pursuant to section 999a, Petitioner filed a timely petition for a writ

of prohibition and made a prima facie showing that he had been committed

without probable cause for felony violations of section 459, when, as a

matter of law, the crimes established by the preliminary hearing evidence

were punishable only under newly enacted section 459.5. Section 459.5 did

not exist prior to November, 2015. Although there are a mounting number

of appeals pending in District Courts throughout California, as yet, there is

no published opinion interpreting this statute. The Judicial Council has not

even developed a criminal jury instruction pertaining to this new crime.

Notwithstanding the prima facie showing made by petitioner and the fact

that he has no adequate remedy at law, not to mention the importance of

judicial guidance as to the issue presented, the Fourth District Court of

Appeal, Division Two summarily denied the petition without even

requesting an informal response from the District Attorney.

3

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Petitioner is committed upon an Information charging two felony

counts of second degree burglary (§459) and a misdemeanor violation of

section 476a (Insufficient Funds). The offenses, separately or cumulatively

involved property valued at less than $950.

At his preliminary hearing, the District Attorney presented evidence

that, on two separate occasions, Petitioner entered a Cash Mart

establishment during normal business hours and presented his own photo-

identification and checks drawn on Von’s-Safeway’s corporate account,

made payable to himself. On the first occasion, the check was cashed, and

Petitioner was paid $383.79. The next time, Petitioner left after being

questioned about the check, was not paid, and did not return.

After he was arraigned on the information, Petitioner filed a motion

to dismiss pursuant to section 995, which was denied. A petition for writ of

prohibition was then filed in the Fourth District Court of Appeal within the

statutory time period.

STANDARD OF REVIEW

“‘To support a felony information, there need be only “some rational

ground for assuming the possibility that an offense has been committed and

the accused is guilty of it” [citation], and an information will not be set

aside or a prosecution prohibited thereon if this standard is met.’” (People

v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842.) On review of

4

the superior court’s denial of a motion brought pursuant to section 995, ‘the

appellate court in effect disregards the ruling of the superior court and

directly reviews the determination of the magistrate holding the defendant

to answer.’” (People v. Superior Court (Lujan) (1999) 73 Cal.App.4th

1123, 1127, quoting People v. Laiwa (1983) 34 Cal.3d 711, 718.) Where

the facts are undisputed, the determination of probable cause “constitute[s]

a legal conclusion which is subject to independent review ….” (People v.

Watson (1981) 30 Cal.3d 290, 300.)

MEMORANDUM OF POINTS AND AUTHORITIES

BECAUSE PROBABLE CAUSE EXISTS TO BELIEVE THAT THE CRIMES PETITIONER COMMITTED COME WITHIN THE

SCOPE OF SECTION 459.5, PROSECUTION UNDER SECTION 459 IS PROHIBITED

On November 4, 2014, the voters approved Proposition 47, the Safe

Neighborhoods and Schools Act (hereafter “Proposition 47” or “the Act”).

The Act’s purpose was to reduce the number of inmates populating state

and local detention facilities due to convictions for simple drug possession

and low level property crime offenses, to generate savings, and to invest

these savings in public safety. Essentially, the Voters sought to accomplish

this purpose by divesting prosecutors of the power to charge these crimes as

felonies.

5

Among the changes made by Proposition 47 was the enactment of

section 459.5, which 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 dollars ($950). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.

(§459.5, subd. (a).)

Subdivision (b) of section 459 prohibits the prosecution of such

offenses under section 459. “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.” (§ 459, subd. (b), emphasis added.)

Respondent Court denied Petitioner’s section 995 motion,

concluding that the crimes shown to have been committed were not

punishable under section 459.5, because they are not what it classically

understood as “shoplifting.” This ruling violated the mandate that

Proposition 47 be liberally construed to effectuate its purposes as well as

fundamental rules of statutory interpretation.

6

The first task of statutory construction is to “look to the words of the

statute itself.” (People v. Cardwell (2012) 203 Cal.App.4th 876, 881.) The

court must “give the words of the statute ‘a plain and commonsense

meaning’ unless the statute specifically defines the words to give them a

special meaning.” (Ibid. [citations omitted]; Haswsan v. Mercy American

River Hospital (2003) 31 Cal. 4th 709, 720 [interpreting statutory language

in accordance with its usual and ordinary meaning].) “The plain meaning

controls if there is no ambiguity in the statutory language.” (People v.

Cornett (2012) 53 Cal.4th 1261, 1265, quoting People v. King (2006) 35

Cal. 4th 617, 622.)

The language of section 459.5 is clear and unambiguous. Its plain

language cannot reasonably be misunderstood, including the phrase

“commercial establishment,” understood as incorporating a nonresidential

structure housing a business where goods and services are bought and sold.

(See http://www.merriam-webster.com/dictionary/commercial; see 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”].)

Without any specific statutory definition, California courts have readily

recognized this for decades. (See e.g. Sundance Saloon, Inc. v. City of San

Diego (1989) 213 Cal.App. 3d 807 [cabaret is a commercial establishment

for purpose of Municipal Code ordinances restricting hours of operation];

7

City of Velljo v. Adult Books (1985) 167 Cal.App. 3d 1169 [“commercial

establishment” is actually the term used in defining “adult bookstore” for

purposes of zoning ordinance].)

The phrase “commercial establishment” is not new to California

penal law. It has existed in the context of section 667.61 since the statute

was enacted in 1994, and over the past twenty years no California appellate

court has had occasion to interpret its meaning, because everyone knows

what it means. The phrase “commercial establishment” is ordinarily

understood as encompassing any type of business involved in the buying or

selling of goods or services, including a check cashing business like Cash

Mart.4

Even if the phrase “commercial establishment” could reasonably be

considered to be ambiguous, there is no evidence that the Voters, when

adopting the initiative, intended section 459.5 to incorporate only to

burglaries of retail stores with the intent to grab items off the shelves and

leave without paying as advanced by Real Party below. To the contrary,

the Voters, in enacting section 459.5, defined this new crime of

“shoplifting” 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

4 Even the word “Mart,” commonly understood as an abbreviation for the word “market” is consistent with the plain language of section 459.5.

8

does not exceed nine hundred fifty dollars ($950).)” (§459.5.) “When a

statute includes an explicit definition, we must follow that definition, even

if it varies from that term’s ordinary meaning.” (Stenberg v. Carhart (2000)

530 U.S. 914, 942-943, citing Meese v. Keene (1987) 481 U.S. 465, 484-

485.)

While the title of the statute alone, “Shoplifting,” might be

consistent with the interpretation advanced by Real Party and adopted by

Respondent Court, this is not dispositive of the Voters’ intent. A statute’s

title may be considered in determining legislative intent and is entitled to

“considerable weight” (People v. Hull (1991) 1 Cal. 4th 266, 272);

however, the broad language of section 459.5 is inconsistent with such a

restrictive reading and nothing in the text of the initiative or the ballot

materials demonstrates that this was the intent of the Voters. To the

contrary, by its very terms, Proposition 47 “shall be liberally construed to

effectuate its purposes.” (CA Prop. 47 (2014), §18, 2014 Cal. Legis. Serv.

Prop. 47.) These purposes include ensuring that “prison spending is

focused on violent and serious offenses” and maximizing “alternatives for

nonserious, nonviolent crime.” (CA Prop. 47 (2014), §2, 2014 Cal. Legis.

Serv. Prop. 47.) The Act lessened the degree of offense and punishment for

low level theft-by-taking crimes, most likely to occur in a retail store, and

low level theft-by-deceit crimes, such as counterfeiting and forgery (§ 473,

subd. (b)), most likely to occur in commercial establishments other than

9

retail stores. Construing section 459.5 broadly is consistent both with the

language of the statute and with the express intent of the Voters.

CONCLUSION

Because the evidence adduced at Petitioner’s preliminary hearing

proved that he had violated section 459.5, he cannot be prosecuted under

section 459. Petitioner’s commitment under the information is unlawful,

and the Court of Appeal should not have summarily denied his petition.

This is one of those occasions where this court is called upon the exercise

its supervisory power to insure that important legal issues of statewide

importance, properly raised by a litigant, are addressed on their merits by

the lower appellate courts and do not evade review. Petitioner respectfully

requests that this court grant review and remand the matter to the Court of

Appeal with instructions to issue an Order to Show Cause and resolve the

unanswered question presented so that Petitioner is not tried on charges that

are statutorily barred.

Dated: _____________________________________________LAURA ARNOLDDeputy Public Defender

Attorney for PetitionerGUILLERMJO VILLALOBOS VALENCIA

10

CERTIFICATE OF WORD COUNT

According to the Word count of my computer program, this petition

contains 3,056 words

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct and that this declaration was

executed on May 20, 2015, at Murrieta, California.

_____________________________LAURA ARNOLDDeputy Public Defender

TABLE OF AUTHORITIES PAGE

FEDERAL CASESMeese v. Keene

(1987) 481 U.S. 465..................................................................9

Stenberg v. Carhart(2000) 530 U.S. 914..................................................................9

STATE CASES C.S. Smith Metropolitan Market Co. v. Superior Court in and for Los

Angeles County(1940) 16 Cal.2d 226.................................................................3

City of Velljo v. Adult Books (1985) 167 Cal.App. 3d 1169....................................................8

Haswsan v. Mercy American River Hospital(2003) 31 Cal. 4th 709...............................................................7

People v. Cardwell(2012) 203 Cal.App.4th 876......................................................7

People v. Cornett(2012) 53 Cal.4th 1261..............................................................7

People v. Hull(1991) 1 Cal. 4th 266.................................................................9

People v. King(2006) 35 Cal. 4th 617...............................................................7

People v. Laiwa(1983) 34 Cal.3d 711.................................................................5

People v. Superior Court (Lujan)(1999) 73 Cal.App.4th 1123......................................................5

People v. Superior Court (Shamis)(1997) 58 Cal.App.4th 833........................................................5

People v. Watson(1981) 30 Cal.3d 290.................................................................5

Sundance Saloon, Inc. v. City of San Diego(1989) 213 Cal.App. 3d 807......................................................7

Wasatch Property Management v. Degrate(2005) 35 Cal. 4th 1111.............................................................7

i

Penal CodeSection 459......................................................................................4, 6, 10

Section 459.5....................................................................................passim

Section 473................................................................................................9

Section 476a..............................................................................................4

Section 667.61...........................................................................................8

Section 995........................................................................................4, 5, 6

Section 999a..........................................................................................2, 3Secondary Authori ty

http://www.merriam-webster.com/dictionary/commercial.......................7Code of Civil Procedure

Section 1102..............................................................................................3

Section 1103..............................................................................................3BALLOT INITIATIVES

Proposition 47, Criminal Sentences, Misdemeanor Penalties,

Initiative Statute.(The Safe Neighborhoods and Schools Act).................2, 5, 6, 9

ii

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES....................................................................................i

ISSUE PRESENTED...............................................................................................2

WHY REVIEW SHOULD BE GRANTED............................................................2

RELEVANT FACTUAL AND PROCEDURAL HISTORY.................................4

STANDARD OF REVIEW.....................................................................................4

MEMORANDUM OR POINTS AND AUTHORITIES.........................................5

BECAUSE PROBABLE CAUSE EXISTS TO BELIEVETHAT THE CRIMES PETITIONER COMMITTED COME WITHIN THE SCOPE OF SECTION 459.5, PROSECUTIONUNDER SECTION 459 IS PROHIBITED.............................................................5

CONCLUSION......................................................................................................10

CERTIFICATE OF WORD COUNT

ATTACHMENT

i

CERTIFICATE OF SERVICERule 1.21(c)

CASE NAME: GUILLERMO VILLALOBOS VALENCIA V. SUPERIOR COURTDOCKET NO. SCt. Appeal 4th DCA, Div. 2 No.: E063481Trial Court No.: INF1302664

I, Debra Lewis, declare as follows:I am employed in the County of Riverside, State of California; I am over the

age of eighteen years and am not a party to this action; my business address is 30755-D Auld Rd., Murrieta, California 92563, in said County and State.

On May 20, 2015, I served the foregoing document:

PETITION FOR REVIEW; ATTACHMENT

on the parties stated below, by the following means of service: BY MAIL: Pursuant to Rule 1.21(b), on the above-mentioned date I

personally deposited in the United States Mail true and correct copies thereof, each in a separate envelope, postage thereon fully prepaid, addressed to the following [See Service List]. .

BY PERSONAL SERVICE: On the date of execution of this document, I personally served true and correct copies of the above-mentioned document(s) on each of the following Riverside County District Attorney, Attn: Writs & Appeals, 3960 Orange Street, Riverside, CA 92501

BY FAX: From fax number (619) 338-4847, I caused each such document to be transmitted by fax machine, to the parties and numbers indicated above, under California Rules of Court, Rule 2.306. The fax machine that I used complied with Rule 2.301 and no error was reported by the machine. 

BY E-MAIL: On the above-mentioned date, I caused a true copy of said document to be emailed to said parties’ e-mail addresses as indicated on the attached Service List. (Rules of Court, Rule 2.251(c)(1))

STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on ______________________

____________________________Debra LewisDeclarant

SERVICE LIST

Clerk of the Superior Courtc/o JUDICIAL SERVICES4100 Main StreetRiverside, Ca. 92501Phone: (951).777-3147

Court of Appeals – 4th DCA. Div. 2Attn: Clerk of the Court3389 12th St.Riverside, CA 92501

Kamala D. HarrisCalifornia Attorney GeneralAttn: Appellate Division110 West 'A' Street, Suite 1100San Diego, CA 92101Phone: (619) 645-2001

Riverside County District AttorneyAttn: APPELLATE DIVISION3960 Orange StreetRiverside, CA 92501

Mr. Guillermo Villalobos Valencia (through counsel)

Attachment A