Metropolitan News-Enterprise


Friday, January 25, 2019


Page 1


California Supreme Court:

Proposition 47 Inapplicable to Entries in Non-Public Areas


By a MetNews Staff Writer


Proposition 47, the 2014 initiative that reclassifies certain second degree burglaries as “shoplifting,” does not apply where the thief enters private offices and other non-public areas, the California Supreme Court held yesterday in a unanimous opinion.

Under the voter-approved Safe Neighborhoods and Schools Act, Penal Code §459.5(a) defines “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 does not exceed nine hundred fifty dollars ($950).”

The high court opinion, by Justice Leondra R. Kruger, affirms a 2-1 Sixth District Court of Appeal opinion holding that appellant Mark Anthony Colbert is not entitled to have his felony convictions for second-degree burglary reduced to misdemeanor shoplifting convictions. On four occasions, Colbert pilfered cash from back rooms while an accomplice distracted the store clerk.


“We conclude that entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary’” Kruger wrote.

Colbert sought to rely on the state Supreme Court’s 2017 decision in People v. Gonzales. There, broad effect was given Proposition 47, with the court holding that it extends to any thefts or intended thefts in commercial establishments, not solely those involving merchandise on display.

In that case, Kruger said in yesterday’s opinion, the court did not deal with thefts from non-public areas of businesses.

Burglary Statute’s Purpose

The burglary statute, she said, is intended to deter threats to personal safety of occupants and invasions on property. The jurist wrote:

“In enacting the shoplifting statute as part of Proposition 47, the electorate signaled that these interests do not apply in the same way when a person intends to steal property in a place where he or she has been invited to peruse the goods and services that are on offer. Store owners and employees do not, of course, consent to the theft of property. But the core of the crime of burglary is not theft but physical intrusion, and owners and employees have every reason to expect that members of the public will enter where they have been invited.

“But it is different when members of the public venture into private back offices, employee locker rooms, or other interior rooms that are objectively identifiable as off-limits. The nature of the intrusion, and the potential risk to personal safety, when a person exceeds the physical scope of his or her invitation to enter are not dissimilar from those associated with exceeding the temporal scope of the invitation by entering after regular business hours—conduct that clearly remains punishable as burglary after the enactment of section 459.5.”

The case is People v. Colbert, 2019 S.O.S. 396.


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