Tuesday, May 28, 2019
Court of Appeal:
Opinion Says Site of Pilfering Was Not ‘Objectively Identifiable As Off-Limits to the Public’ Which Precludes Shoplifting Under Supreme Court Decision
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal, following a remand from the California Supreme Court for reconsideration in light of a recent decision by that court, on Friday came up with the same ruling as before: a juvenile who stole items from a locker room restricted to use by players committed the misdemeanor of shoplifting, not the felony of second degree burglary.
Acting Presiding Justice Richard M. Aronson wrote the opinion which reverses a finding that a youth designated E.P. perpetrated a burglary, but affirms findings that he received stolen property and was a minor in possession of alcohol.
The crime of shoplifting was created through enactment by voters on Nov. 4, 2014, of Proposition 47, “the Safe Neighborhoods and Schools Act.” It defines shoplifting, 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).”
On May 24, 2018, the Court of Appeal issued its first decision in E.P.’s case, then granted a rehearing and issued a new opinion last Dec. 11. Aronson cited the Sept. 29, 2016 of opinion from this district’s Div. One in People v. Hallam.
There, the court reversed an order by Los Angeles Superior Court Judge Laura Laesecke denying a petition for resentencing by a man who stole an air compressor from an employee restroom in a store. Justice Elwood Lui wrote that the restroom “was separate from the main part of the business and was not generally open to the public” but the area nonetheless “lacked any objective indications of a heightened expectation of privacy and security beyond what the store itself provided such that the offense should be deemed burglary rather than shoplifting.”
The California Supreme Court on Jan. 24, in People v. Colbert, said in a footnote that Hallam “is disapproved insofar as it is inconsistent with this opinion.”
Justice Leondra R. Kruger wrote:
“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.”
On March 28, the Supreme Court denied E.P.’s petition for review, then granted review on its own motion, and remanded the case to the Court of Appeal for reconsideration in light of Colbert.
Aronson said in Friday’s opinion:
“Colbert does not change our conclusion that the prosecution failed to prove E.P. committed burglary. The evidence showed the locker rooms of the public ice hockey facility were not ‘objectively identifiable as off-limits to the public.’…Accordingly, we reverse the finding E.P. committed burglary….”
He went on to explain:
“No evidence showed management locked the locker rooms, displayed signs prohibiting entry, or took other steps to prevent public access by family, friends, or bystanders watching the skaters. To the contrary, the evidence establishes a public use. The players’ use of the locker rooms shows Anaheim ICE offered this amenity to its customers, a feature presumably reflected in the fees the facility charged its customers. Accordingly, the evidence does not support the Attorney General’s contention the locker room was not part of Anaheim ICE’s commercial establishment.”
In finding that E.P. committed a burglary, Orange Superior Court Lewis W. Clapp commented that the shoplifting statute applies to “stealing property from a commercial establishment, not from private citizens.” Aronson said:
“Section 459.5 does not distinguish between property belonging to a commercial establishment and property belonging to private citizens. The juvenile court’s ruling that a person can commit shoplifting only if he or she intends to steal property from the commercial establishment erroneously adds an element not included within the statutory definition of shoplifting. Accordingly, the court erred in ruling that as a matter of law E.P.’s theft of property from private citizens could never be shoplifting.”
The case is In re E.P., G054375.
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