Metropolitan News-Enterprise


Friday, March 24, 2017


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S.C. Adopts Broad Interpretation of ‘Shoplifting’

Rejects Contention That the Term, as Used in Proposition 47, Is Limited to Theft of Merchandise;

Majority Says Man Who Came Into Bank to Cash Stolen Checks Is Eligible for Resentencing


By a MetNews Staff Writer


A man who entered a bank to cash stolen checks is eligible, under Proposition 47, to have his conviction for second degree burglary reduced to misdemeanor shoplifting, the California Supreme Court declared yesterday in a 5-2 opinion.

The decision comes one day after a published Fifth District Court of Appeal opinion said that a defendant who stole coins from a machine was eligible for a reduction of his offense to shoplifting.

Yesterday’s majority opinion rejects the stance of the Attorney General’ Office that “shoplifting” should be interpreted in terms of the “common understanding” of the term—a position that has been rebuffed in a number of Court of Appeal decisions, mostly unpublished.

Under Proposition 47, enacted by voters in 2014 as the Safe Neighborhoods and Schools Act, shoplifting is defined, in Penal Code §459.5, 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).”

Terms Argument ‘Unpersuasive’

Writing for the majority, Justice Carol Corrigan labeled as “unpersuasive” the argument of the Attorney General’s Office that “shoplifting” should be construed as the taking of “tangible merchandise.” She wrote:

“First, section 459.5 provides a specific definition of the term ‘shoplifting.’ In doing so, it creates a term of art, which must be understood as it is defined, not in its colloquial sense. Indeed, by defining shoplifting as an entry into a business with an intent to steal, rather than as the taking itself, section 459.5 already deviates from the colloquial understanding of that term….

“Second, the Penal Code defines property to include ‘both real and personal property’ and further defines personal property to include ‘money, goods, chattels, things in action, and evidences of debt.’…There is no indication of an intent to use the term ‘property’ in section 459.5 more narrowly than the definition of the same term already existing in the Penal Code.”

Corrigan went on to say:

“[I]f the electorate had intended to limit the shoplifting statute to an entry with intent to steal retail merchandise, it could have done so by using language similar to that in [Penal Code] section 490.5. That provision specifies, in part, the punishment for ‘petty theft involving merchandise taken from a merchant’s premises’…, and defines ‘merchandise’ as ‘any personal property, capable of manual delivery, displayed, held, or offered for retail sale by a merchant’….No similar language is found in section 459.5.”

The jurist pointed out in a footnote that the trial court, on remand, need not resentence the defendant as a misdemeanant if it finds applicable a statutory exception: that he “would pose an unreasonable risk of danger to public safety” if resentenced.

Chin’s Dissent

Justice Ming Chin, joined by Justice Goodwin Liu, dissented. He wrote:

“We are interpreting an initiative measure. Our goal is to discern the electorate’s intent. The majority’s interpretation of ‘shoplifting’ would modify that term from its commonly understood meaning and expand it beyond all recognition. Shoplifting has always been understood to involve larceny, that is, the stealing of merchandise, not embezzlement and not false pretenses….

He quoted, with approval, the statement of the Attorney General’s Office that “[o]ne would be hard-pressed to find any California voter who would define fraudulently cashing forged and stolen checks as shoplifting.”

Chin stressed that §459.5 requires an entry into a commercial establishment to commit “larceny.” He said:

“[C]ashing a fraudulent check is not larceny. It is obtaining property by false pretenses. Entering a bank with intent to obtain property by false pretenses is not entering a commercial establishment with intent to commit larceny. Accordingly, defendant did not commit the crime of shoplifting as section 459.5 defines it.”

He criticized the majority for “[a]uto correcting ‘larceny’ to ‘theft,’ arguing that by doing so, “the majority essentially says that the Legislature or electorate cannot use the word ‘larceny’ to define a crime even when, as here…that is the precise word intended.”

Necessary Divergence

Chin also wrote:

“I do recognize that, in one respect, the statutory definition of ‘shoplifting’ does diverge from the common understanding. It applies to anyone entering a commercial establishment with the intent to commit larceny and does not require an actual completed act of larceny. The common understanding of ‘shoplifting’ no doubt contemplates an actual taking. This divergence from the common understanding was necessary to accomplish the obvious intent behind this part of the initiative—to replace felony burglary of a commercial establishment with misdemeanor shoplifting when the dollar amount is limited. If the crime of shoplifting had not been expanded in this way, the result would have been absurd: A person who enters a store intending to steal, say, a six-pack of beer, but is foiled before actually stealing it, would be guilty of felony burglary, but the person who actually stole the beer would be guilty only of misdemeanor shoplifting. The drafters of Proposition 47 knew how to diverge from the common understanding when that was their intent, and how to otherwise come within the common understanding by using the word ‘larceny,’ rather than ‘theft.’ ”

The case is People v. Gonzales, 2017 S.O.S. 1555.

Court of Appeal Case

In a case filed yesterday interpreting a different aspect of Proposition 47, Div. One of the Fourth District Court of Appeal held that a man who stole his girlfriend’s car following an argument, drove it into a reservoir, and left it there, may have his conviction for unlawful taking or driving a vehicle, in violation of Vehicle Code section 10851, reduced to petty theft.

Under Penal Code §490.2, petty theft is redefined as “obtaining any property by theft where the value of taken does not exceed nine hundred fifty dollars ($950).”

The car in question had a value of about $700.

Slough’s Opinion

The Attorney General’s Office argued that Proposition 47 is inapplicable to §10851 convictions. Writing for the panel’s majority, Justice Marsha G. Slough said:

“No one disagrees Proposition 47 was intended to prohibit prosecutors from charging low-value car thefts as felony Penal Code section 487, subdivision (d)(1) violations. Interpreting Proposition 47 to exclude section 10851 creates an end-run around this prohibition. It allows prosecutors to simply choose to charge low-value car thieves as felons under section 10851 instead of as misdemeanants. Such an outcome contravenes the voters’ clear intent to reduce prison spending and redirect the savings to community-based programs by lessening the punishment for low-value car thefts to misdemeanors.”

Noting that the question presented by the case is presently before the California Supreme Court, Acting Presiding Justice Thomas E. Hollenhorst wrote:

“I would affirm, pending the California Supreme Court’s final resolution of the issue.”

The case is People v. Orden, E066432.


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