People v. Smith

SLOUGH J.

*719 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) 1 convictions (counts 1, 2) designated as misdemeanor shoplifting (§ 459.5) because "[t]he value of the check or property does not exceed $950.00." The People responded, also using the standard form, by checking the box *720 conceding Smith " is entitled to resentencing" and requesting a hearing to determine "[r]e-sentencing on Ct 2." The People did not contest the value of the loss in count 1, but did check the box requesting a hearing because the "People do not believe count one is eligible as [the victim] 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 there is otherwise insufficient…