People v. Smith

Defendant Michael Lee Smith appeals from the summary denial of his Proposition 47 resentencing petition. (Pen. Code, § 1170.18.) Using Riverside County Superior Court’s standard petitioning form, Smith sought to have two felony second degree commercial burglary (§ 459) convictions (counts 1, 2) designated as misdemeanor shoplifting (§ 459.5). As part of his petition, Smith declared as to both counts that ‘“[t]he value of the check or property does not exceed $950.00.” The People responded by representing Smith “is entitled to resentencing” on count 2 and requesting a hearing to determine the new sentence. The People did not contest the value of the loss in count 1, but did request a hearing to determine eligibility because the ‘“People do not believe count one is eligible as” the victim check exchange business ‘“is not a commercial establishment,” which is a required element of shoplifting under new section 459.5. The superior court agreed the victim in count 1 was not a commercial establishment and denied relief, and also summarily denied Smith’s petition as to count 2 without explanation.

Smith argues the victim check exchange business is a commercial establishment and…