Metropolitan News-Enterprise


Thursday, March 23, 2017


Page 1


Court of Appeal Declares:

Stealing From Coin-Operated Machine Was ‘Shoplifting’

Published Opinion Says That Under Proposition 47, Second Degree Burglary Convictions Can Be Lowered to Misdemeanor-Shoplifting Without Theft of Merchandise


By a MetNews Staff Writer


The Fifth District Court of Appeal held yesterday that a man convicted of second degree burglary for stealing money from a coin-operated soap dispenser in a commercial laundromat is eligible to be resentenced, under Proposition 47, for misdemeanor shoplifting, its reasoning echoing that expressed by this district in an unpublished opinion two days earlier, and found in various other recent decisions.

Proposition 47—enacted by voters on Nov. 4, 2014, created “the Safe Neighborhoods and Schools Act” which reduces certain felonies to misdemeanors, including second degree burglaries which meet the definition in  Penal Code §459.5 of “shoplifting.”

The definition there is “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).”

The Office of Attorney General has taken the position that the commonly understood meaning of “shoplifting” should be applied and some trial judges have agreed—but courts of appeal have rejected that view.

In yesterday’s published decision, the Fifth District reversed a decision by Merced Superior Court Judge Harry L. Jacobs denying a resentencing petition by Randy Bunyard, who pilfered coins from a machine in a laundromat. Jacobs held that Bunyard’s act did not come “under any regular definition of shoplifting.”

He elaborated that “prying open a box with tools... entails more than simply lifting goods from a shelf, or for that matter, even tapping the till.  It involves a level of…destruction that…seems to me higher than the level required by shoplifting.”

‘Five Finger Discount’

Disagreeing, Justice Jennifer R.S. Detjen said that giving the term shoplifting “a broader scope than merely what is colloquially referred to as a ‘five-finger discount’…furthers voters’ intent in enacting Proposition 47.”

Quoting from the Voter Information Guide, she said the intent was to reduce punishment for “nonserious, nonviolent crimes like petty theft and drug possession” in order “to ensure that prison spending is focused on violent and serious offenses....”

The jurist remarked:

“It would make no sense to distinguish, for purposes of misdemeanor versus felony treatment, between the intended theft of merchandise worth $10 to $15 and the intended theft of coins worth $10 to $15, simply because the former is openly displayed and offered for sale and the latter is not.”

 She noted that under Proposition 47, resentencing is mandatory “unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.”

Detjen said that the trial court must determine, on remand, if that exception applies.

The case is People v. Bunyard, 2017 S.O.S. 1534.

Private Office

On Monday, Div. Eight of this district’s Court of Appeal held that a man who stole a laptop computer from a private office in a furniture store is eligible to have his conviction for second degree burglary reduced to misdemeanor shoplifting, reversing a decision by Los Angeles Superior Court Judge Laura Laesecke:

Justice Douglas Sortino explained:

“Although the lay person might understand ‘shoplifting’ to mean entry into a retail store during regular business hours with the intent to steal displayed merchandise, that is not how the voters defined ‘shoplifting’ in section 459.5. Whatever the common definition of shoplifting, the voters defined ‘shoplifting’ in section 459.5 to mean entry into a commercial establishment during regular business hours with the intent to commit larceny where the property taken or intended to be taken is not worth more than $950, not—in respondent’s proposed revision of the statute—the entry into a retail establishment, while the establishment is open during regular business hours, with the intent to steal openly-displayed merchandise valuing not more than $950….Had the voters intended to adopt the common understanding of shoplifting, we should be able to find some indication of that in the text. We have not. Instead, we would have to rewrite the statute to accept respondent’s interpretation, which is beyond both our charge and our power as a judicial body.”

The matter was remanded to Laesecke for a determination of whether the value of the laptop exceeded $950.

That case is People v. Glover, B267239.

Credit Card Fraud

On March 14, the Sixth District Court of Appeal, in an unpublished opinion, held that a woman who made fraudulent credit card purchases is eligible for reduction of her conviction for second degree burglary to shoplifting. Justice Patricia Bamattre-Manoukian said, in People v. Williams, H043110:

“We are not persuaded by the Attorney General’s contrary argument that voters intended the shoplifting statute to encompass only the ‘common understanding’ of shoplifting.”

Div. Four of this district’s Court of Appeal on Feb. 8 reversed a determination by Los Angeles Superior Court Judge Michael K. Kellogg that a man who stole property from a law firm did not commit shoplifting, as defined by §459.5 because such an office is not “a commercial establishment.” Presiding Justice Norman Epstein expressed his division’s contrary view, saying:

“Respondent argues that a law office is not primarily engaged in commerce, but in securing its clients’ legal rights, and that the confidential fiduciary nature of the attorney-client relationship distinguishes a law office from a bank that offers financial services or a club that offers recreational services. But even the rules of professional conduct, on which respondent relies, recognize that lawyers generally provide legal services for a fee….Exchanging legal services for a fee qualifies as selling those services.”

The decision came in People v. Thomas, B268555.

Theft From LAX

The reasoning in these cases parallels that put forth in People v. Camera, an unpublished decision by this district’s Div. Three, filed Nov. 18, 2016. The opinion, by Presiding Justice Lee Edmon, reversed a determination that a man who stole luggage at Los Angeles International Airport was not eligible for resentencing.

Edmon wrote:

“The plain language of section 459.5 defines ‘shoplifting’ to mean entry into a commercial establishment during regular business hours with the intent to commit larceny, and we may not revise that definition to accept respondent’s view that ‘shoplifting’ includes only the theft of ‘openly displayed merchandise’ from a retail store.”

The Office of Attorney General argued that the baggage claim area is not a “commercial establishment,” but Edmon rejected the distinction, saying:

“[S]ection 459.5 does not state that only certain areas of a commercial establishment qualify under the statute, and we therefore decline to subdivide businesses into areas that qualify or do not qualify under section 459.5.”

In a published decision issued July 11, 2016, Justice Richard D. Huffman of the Fourth District’s Div. One said:

“The People urge us to apply the definition of “shoplifting” as used in dictionaries and as discussed in Wharton’s treatise on criminal law….We decline to take that approach. The statute does not contain any definition of shoplifting other than setting forth the elements of the offense in the specific language of section 459.5. We decline to speculate whether the voters had to resort to dictionaries in formulating their views on the statute. We find it even more unlikely that they were familiar with Wharton’s criminal law treatise. Indeed, we wonder how many law-trained professionals have considered that resource. In short we remain satisfied that analysis of the language of the statute, in light of the case law defining the terms, is the best indicator of the voters’ intent.”

In that case—People v. Fusting, 1 Cal.App.5th 404—the defendant was found eligible for resentencing for shoplifting though he removed no property from the commercial establishment he entered. He came there to try to sell a stolen surf board.

Huffman observed:

“Ultimately our high court will provide guidance on the interpretation and application of the statute. In the interim, it is our obligation to make our best efforts to correctly interpret and apply the section.”


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