Date: May 4, February 29, 2016

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1 Date: May 4, 2015 February 29, #2- IPG (RODRIGUEZ - SASSER- SEDILLO - KEITH) 2016-IPG#16: PROPOSITION 47 UPDATE PT I On November 4, 2014, the voters in California passed Proposition 47, an initiative that, among other things, reduced various theft-related, forgery, and drug possession crimes previously prosecutable as felonies to misdemeanors and established a procedure for most defendants convicted of those crimes to return to court and have their felony convictions for those crimes reduced to a misdemeanors. This IPG memo is the first part of an outline of the laws enacted or amended by Proposition 47, the over 70 cases published since its enactment interpreting those laws, and the legal issues created by Proposition 47. This memo is the first in a series on Proposition 47 and will focus on some issues arising in interpreting the scope of two statutes first enacted by Proposition 47: Penal Code sections and When the final IPG memo in the series is published, it will be incorporate this memo into a comprehensive outline covering all the published cases and issues. This memo does not reflect policy determinations of the Santa Clara County District Attorney s Office. This IPG memo had its genesis in a P&A memo that, in turn drew directly from a memo put together by the incomparable Santa Clara County Deputy District Attorney Kathy Storton. This IPG memo is accompanied by a podcast featuring Prop 47 experts, Santa Clara County Deputy District Attorneys Dana Veazey and Eunice Yang. The podcast provides 35 minutes of general MCLE credit and may be accessed at the following link: 1

2 What Prosecutors Need to Know About Prop 47 If There is Only Five Minutes to Learn It Prop 47 eliminated a prosecutor s ability to charge a wide variety of common drug and theft-related crimes as felonies except when the defendants have convictions requiring sex offender registration or for crimes listed in Penal Code section 667(e)(2)(c)(iv), e.g., forcible sexual assaults, child molestation, homicides, serious or violent felonies punishable by life imprisonment or death. Crimes listed in section 667(e)(2)(c)(iv) are referred to by the (pretty cool) term: super strikes. Prop 47 created a new crime of shoplifting (PC 459.5) that makes it a misdemeanor to enter a commercial establishment during regular business hours with the intent to steal property worth $950 or less, requires the crime to be charged if applicable, and bars charging of theft or burglary in the alternative. It can be a felony if the defendant has been convicted of a crime requiring sex offender registration or of a super strike. Petty theft with a prior (PC 484/666) is longer a wobbler it is a simple misdemeanor unless the person has been convicted of a crime requiring sex offender registration or super strikes. Certain types of grand theft, including theft from the person (PC 487(c)), theft of a firearm (PC 487(d)(2)), and theft of an automobile (PC 487(d)(1)), are no longer wobblers if the value of the property taken is $950 or less; the crimes are simple misdemeanors unless the person has been convicted of a crime requiring sex offender registration or a super strike. Forgeries (PC 470) of certain types of items (e.g., checks, money orders) are no longer wobblers if the value of the item does not exceed $950. They are simple misdemeanors unless the person has been convicted of a crime requiring sex offender registration or of a super strike and/or the defendant is also convicted of identity theft. Writing bad checks (PC 476) is no longer a wobbler if the amount of the checks written is less than $950. It is a misdemeanor unless the person has been convicted of a crime requiring sex offender registration or of a super strike and/or has three prior convictions for violating Penal Code sections 470, 475, 476 or 476a. Receiving stolen property (PC 496) is now only a felony if the property has a value over $950 unless the defendant has been convicted of a crime requiring sex offender registration or of a super strike in which case it remains a wobbler. The three simple drug-possession offenses (H&S 11350(a), 11377(a), 11357(a)) are no longer felonies or wobblers they are just misdemeanors unless the defendant has been convicted of a crime requiring sex offender registration or of a supers trike. Defendants who already have felony convictions for crimes reduced to misdemeanors by Prop 47 and who would have only been guilty of misdemeanors if Prop 47 had been in effect at the time they were convicted, may ask to have those convictions reduced to misdemeanors. The petition or application of a defendant meeting the aforementioned criteria must be granted unless a court determines that resentencing a defendant who is currently serving a sentence would pose an unreasonable risk the defendant would commit one of the super strikes in the future. 2

3 TABLE OF CONTENTS FOR THIS WEEK S MEMO 1. What is the expressed purpose behind Prop 47? 5 2. What is the effective date of Prop 47? 6 3. The new crime of shoplifting : Penal Code section A. What is the specific statutory language of Penal Code section 459.5? 6 B. What appears to be the purpose behind the enactment of section 459.5? 7 C. Is the requirement that the prosecution charge a defendant who commits shoplifting under section 459.5, and the limitation on the ability of the prosecution to charge theft or burglary in conjunction with a charge of shoplifting, a violation of the separation of powers? 7 D. What is a commercial establishment? 9 (i) Is entry into the noncommercial area of a commercial establishment or the commercial area of a noncommercial establishment a violation of section 459.5? 11 E. Does the crime of shoplifting apply to entry into a store with the intent to commit theft even if no theft is committed? 12 F. Does the crime of shoplifting apply to entry into a store after the store is closed? 13 G. Will there ever be any reason to charge shoplifting in violation of section instead of charging petty theft? 13 H. Will prosecutors ever want to charge a defendant with a violation of section instead of second degree burglary (i.e., when the defendant has prior convictions requiring sex offender registration or convictions for super strikes)? 14 I. If a defendant has to register as a sex offender, but he does not have a conviction for a crime listed in Health & Safety Code section 290(c), is the defendant eligible for felony punishment under section 459.5? 15 J. Does section bar charging automobile burglaries or other burglaries that do not that do not fit the definition of shoplifting? 16 K. Does entry into a commercial establishment with the intent to commit a crime (e.g., cashing forged checks) that does not meet the technical definition of larceny constitute a violation of section 459.5? 17 L. Kathy Storton s Penal Code section Chart The slowly disappearing punishment for, and crime of, petty with a prior (Penal Code 484/666) 21 3

4 A. Current statutory language of Penal Code section B. If a defendant with a disqualifying prior conviction commits a new theft, how many prior theft-related convictions does the defendant have to have in order for the defendant to be potentially eligible for state prison? 23 C. May a defendant who must register as a sex offender have his sentence enhanced to a felony for one of the theft-related crimes designated in section 666(a) even if the defendant does not have a conviction for a crime listed in Penal Code section 290(c)? 23 D. Does Proposition 47 impact violations of Penal Code section 666.5? 24 E. Kathy Storton s Penal Code section 666 chart The new definition of grand theft: Penal Code section A. The statutory language of Penal Code section B. What is the punishment for grand theft when the value of the money, labor, real or personal property taken does not exceed $950? 26 C. Are all statutes that define grand theft subject to Penal Code section 490.2? 26 D. What statutes make reference to theft and/or may potentially be impacted by section 490.2? 27 E. Does section cover burglaries in violation of Penal Code section 459 where the property taken during the burglary is less than $950? 36 F. Does section apply to acquiring or retaining access card information in violation of Penal Code section 484e(d)? 37 4

5 1. What is the expressed purpose behind Prop 47? Section 3 of Proposition 47 states: In enacting this act, it is the purpose and intent of the people of the State of California to: (1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act. (2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to the State Department of Education for crime prevention and support programs in K 12 schools, 10 percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for mental health and substance abuse treatment programs to reduce recidivism of people in the justice system. (3) Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes. (4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors. (5) Require a thorough review of criminal history and risk assessment of any individuals before resentencing to ensure that they do not pose a risk to public safety. (6) This measure will save significant state corrections dollars on an annual basis. Preliminary estimates range from $150 million to $250 million per year. This measure will increase investments in programs that reduce crime and improve public safety, such as prevention programs in K 12 schools, victim services, and mental health and drug treatment, which will reduce future expenditures for corrections. (People v. Shabazz (2015) 237 Cal.App.4th 303, 308 [identifying the factors as the stated purpose and intent of Proposition 47]; see also People v. Diaz (2015) 238 Cal.App.4th 1323, 1328 [declared purpose is to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated... into prevention and support programs in K 12 schools, victim services, and mental health and drug treatment while at the same time ensur[ing] that sentences for people convicted of dangerous crimes... are not changed. ] Section 15 of Proposition 47 provides the act shall be broadly construed to accomplish its purposes and Section 18 provides that it shall be liberally construed to effectuate its purposes. (See People v. Thompson (2015) 243 Cal.App.4th 413, 418; Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1222; People v. Gonzalez 2016 WL , *2.) 5

6 2. What is the effective date of Prop 47? Proposition 47 became effective on November 5, (See People v. Diaz (2015) 238 Cal.App.4th 1323, 1328; Cal. Const., art. II, 10 subd. (a) [an initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise].) 3. The new crime of shoplifting : Penal Code section Proposition 47 enacted a new crime entitled shoplifting that is a hybrid of a commercial burglary and a petty theft. The crime of shoplifting has three elements: (1) entry into a commercial establishment, (2) while the establishment is open during regular business hours, and (3) with intent to commit larceny of property valued at $950 or less. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114 citing to Pen. Code, ) Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 879 citing to People v. Rivera (2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, ) A. What is the specific statutory language of Penal Code section 459.5? Penal Code section states: (a) Notwithstanding Section 459, shoplifting is defined 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). Any other entry into a commercial establishment with intent to commit larceny is burglary. Shoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section 1170.* (b) Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property. *Editor s note: For a list of the offenses specified in Penal Code 667(e)(2)(C)(iv) and listed in Penal Code 290(c), see the next edition of IPG. These offenses have come to be known as super strikes (see Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th 1209, 1222, fn. 4; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092) which is how we will refer to them. 6

7 B. What appears to be the purpose behind the enactment of section 459.5? Under pre-existing law, a shoplifter who surreptitiously enters a store with the intent to steal commits burglary[.] (People v. Davis (1998) 18 Cal.4th 712, 734.) Although neither proponents nor the opponents of Proposition 47 touched upon section in the ballot arguments, it appears the proponents were trying to eliminate burglary convictions based solely on entries into retail stores in order to steal property valued under $950. Presumably, the proponents did not want prosecutors to charge this type of second degree burglary in a post- Proposition 47 world as an alternative means of obtaining a felony conviction when a defendant steals property from a commercial establishment under $950. That is why subdivision (b) requires that [a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting and prevents the charging of theft or burglary based on the property shoplifted as an alternative charge. C. Is the requirement that the prosecution charge a defendant who commits shoplifting under section 459.5, and the limitation on the ability of the prosecution to charge theft or burglary in conjunction with a charge of shoplifting, a violation of the separation of powers? Article III, section 3 of the California Constitution provides the basis for application of the separation of powers doctrine in California and states: The powers of state government are legislative, executive and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Certainly, the legislative branch has the authority to define what is or is not a crime and the punishment for that crime without violating the separation of powers. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [ subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch ].) However (as Alameda County Assistant DDA Mike O Connor has pointed out) an argument can be made that the restrictions placed on prosecutorial discretion to charge crimes by Proposition 47 renders that aspect of Prop 47 unconstitutional as a violation of the separation of powers rule embodied in Article III, section 3 of the California Constitution. Here is that argument: 7

8 [T]he prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from the complex considerations necessary for the effective and efficient administration of law enforcement. [Citations.] The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers, and generally is not subject to supervision by the judicial branch. [Citations.] (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 citing to People v. Birks (1998) 19 Cal.4th 108, 134, emphasis added by P&A.) Consider the following language from People v. Mikhail (1993) 13 Cal.App.4th 846, a case dealing with a question of the separation of powers between the judicial and executive branches: Based on article III, section 3 of the California Constitution, cases have held the charging function of a criminal case is within the sole province of the executive branch, which includes the Attorney General and the various district attorneys (Cal. Const., art. V, 13)... Thus while the legislative branch bears the sole responsibility and power to define criminal charges and to prescribe punishment, it is the executive branch which decides which crime to charge and the judicial branch which imposes sentence within the legislatively determined limits for the chosen crime. (Mikhail at p. 854, citing to People v. Navarro (1972) 7 Cal.3d 248, 258, emphasis added by IPG.) Accordingly, while an initiative (or statute) could prevent conviction for both a violation of the new crime of section and a violation of sections 459 or 484, it should not be able to prevent charging those crimes in the alternative without an amendment to the California Constitution. Moreover, the fact that section was added by way of an initiative enacted by the voters rather than statute enacted by the legislature does not make a difference when it comes to whether the new law violates the separation of powers doctrine. Under our constitutional system the Legislature is not the exclusive source of legislative power. The legislative power of this State is vested in the California Legislature which consists of the Senate and the Assembly, but the people reserve to themselves the powers of initiative and referendum. (Cal. Const., art. IV, 1.) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. (Cal. Const., art. II, 8, subd. (a).) (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1043.) As repeatedly pointed out in the California Supreme Court, [t]he electorate's legislative power is generally coextensive with the power of the Legislature to enact statutes. (Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1043; accord Manduley v. Superior Court 8

9 (2002) 27 Cal.4th 537, 552 [ the power of the people through the statutory initiative is coextensive with the power of the Legislature ]; Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675 [same].) The separation of powers principles are applicable to statutes passed by voter initiative and in applying these principles, courts essentially treat a voter-enacted statute as an act of the Legislature. (See e.g., Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [applying separation of powers analysis to statute enacted by initiative]; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [same].) All that being said, section is not the first statute to limit a prosecutor s ability to charge a crime. (See e.g., Pen. Code, 288.5(c) [ No other act of substantial sexual conduct, as defined in subdivision (b) of Section , with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim ].) And prosecutors inclined to charge both section and burglary or theft based on the taking of the same property should be prepared to address defense arguments that, assuming the separation of powers principles renders section 459.5(b) unconstitutional insofar as it restricts the ability of the prosecution to charge both offenses, the initiative should nonetheless be interpreted to bar conviction for anything other than section if the conduct underlying alternative burglary or theft charges is the same conduct underlying the section charge. D. What is a commercial establishment? As noted above, section requires that the defendant enter a commercial establishment with intent to commit larceny while that establishment is open during regular business hours[.] (Pen. Code, ) The statute, however, does not define the term commercial establishment. Neither the current statute defining the crime of burglary (Pen. Code 459) nor the statute defining the punishment for burglary (Pen. Code, 460) uses the term commercial establishment. Rather, first degree burglary is distinguished from second degree burglary solely on the basis of whether the structure entered is an inhabited dwelling. *Editor s note: The term commercial establishment was used in a former version of Penal Code section 667(e)(2) but was never interpreted. 9

10 Only a few published post-proposition 47 cases have directly addressed what constitutes a commercial establishment for purposes of section In re J.L. (2015) 242 Cal.App.4th 1108 In J.L., a juvenile court found a minor had committed burglary in violation of Penal Code section 459 based on the minor entering a school locker room and stealing another student s cell phone out of a school locker. After Proposition 47 passed, the minor petitioned to change his juvenile felony burglary offense to a misdemeanor shoplifting offense under newly-enacted section The petition was denied based on the trial court s determination that the minor had not entered a commercial establishment, as the term is used in section 459.5; and the minor appealed. (Id. at pp ) On appeal, the minor argued that a public high school is such an establishment because, as he put[] it, a school share[s] similar traits with a commercial establishment, such as maintaining regular hours of operation, being closed regular days and hours, engaging with members of the public, and conducting normal functions associated with most businesses (e.g. maintaining personnel, handling payroll, accounting, accepting phone calls, dealing with inventory, etc.). (Id. at p ) The appellate court was not persuaded, finding that [w]hatever broader meaning commercial establishment as used in section might bear on different facts, [the minor s] theft of a cell phone from a school locker room was not a theft from a commercial establishment. (Id. at p ) Although the J.L. court did not come up an unqualified definition of commercial establishment, the court did state that [g]iving the term its commonsense meaning, a commercial establishment is one that is primarily engaged in commerce, that is, the buying and selling of goods or services. (Id. at p [and noting this definition comported with use of the term in dictionaries and other legal sources], emphasis added by IPG.) The court also concluded that the term [s]hoplifting is commonly understood as theft of merchandise from a store or business that sells goods to the public and that the voters enacting Proposition 47 understood the reference to shoplifting in the ballot pamphlet materials, including in the title and text of section 459.5, in the same way. (Id. at pp ; cf., People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638, 640] [discussed in this IPG memo, section 3-K at p. 17, and finding the layperson s understanding of shoplifting does not define scope of section 459].) Considering a public high school is not an establishment primarily engaged in the sale of goods and services but an establishment dedicated to the education of students, the court simply [did] not 10

11 believe that the voters enacting Proposition 47 understood a public high school to be a commercial establishment or a theft from a school locker to be shoplifting. (J.L. at p ) Thus, the J.L. court found it was immaterial that a school maintains regular hours, accepts phone calls, or may handle payroll in connection with its personnel. (Ibid.) *Editor s note: Although the court did not purport to give a comprehensive definition of commercial establishment, the court cited various sources in support of its definition. One source that was cited was 37 C.F.R , which is a copyright regulation defining the term commercial establishment as an establishment used for commercial purposes, such as bars, restaurants, private offices, fitness clubs, oil rigs, retail stores, banks and financial institutions, supermarkets, auto and boat dealerships, and other establishments with common business areas. This is a fairly expansive definition. In People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] (a case discussed at length in this IPG memo, section 3-K at pp that held entry into a bank to cash a forged check worth less than $950 qualified as shoplifting ) the court agreed with the People that the term commercial establishment in section suggested that it applied to fewer structures than the structures defined in the burglary statute (Pen. Code, 459), which includes any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, etc. (Id. at p. 643.) However, the Vargas court also stated that nothing in Proposition 47 suggests the voters intended the term commercial establishment to mean retail establishment. (Ibid.) (i) Is entry into the noncommercial area of a commercial establishment or the commercial area of a noncommercial establishment a violation of section 459.5? One of the more hotly disputed issues concerning the scope of section is whether an entry and/or theft from an area of a commercial establishment that is not being used for commercial purposes (i.e., a bathroom, a breakroom, etc.,) is shoplifting. The inverse question can arise when the primary purpose of the building entered is not commerce, but some commerce takes place inside the building (i.e., where the building houses a cafeteria or gift shop). So far no published decision has provided a direct answer to either of these questions. In In re J.L. (2015) 242 Cal.App.4th 1108 (discussed in this IPG memo, section 3-D at pp ), the court held entry into a school locker room to steal a cell phone was not shoplifting because a school was not a commercial establishment. However, the court also stated, [e]xcept for perhaps a school cafeteria or bookstore (circumstances not at issue here, where the phone was stolen from a school locker), a 11

12 public school is not engaged in the business of selling merchandise or goods at all. (Id. at p ) This statement can be spun in two ways. It could be viewed as indicating the focus in defining the term is on the primary purpose of the establishment regardless of whether some portion of the establishment is used for commercial purposes. Alternatively, it could be viewed as suggesting that entry and theft from the cafeteria or bookstore in a school might qualify as shoplifting. In People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] (a case discussed at length in this IPG memo, section 3-K at pp ) the People argued that interpreting section to apply to entry into a bank to cash a forged check worth less than $950 (as the defendant in Vargas did) would mean it would also apply in the following situations: [When] a person... enters a restaurant and sneaks into the manager's office to steal $900 from the safe [;] [when] a person... enters the 24 hour supermarket and breaks into the locked pharmacy to steal drugs[;] [and when] a person... enters the locker room of a private club and steals personal items from the lockers[.] (Id. at p. 646.) The Vargas court responded by noting that none of those situations was before them but went on to say: We also doubt these acts would fall within our reading of section For instance, private areas of commercial establishments may not qualify as an establishment... open during regular business hours as required by section (Ibid.) *Editor s note: An excellent brief authored by Santa Clara County DDA Eunice Yang addressing the scope of the term commercial establishment is available upon request. E. Does the crime of shoplifting apply to entry into a store with the intent to commit theft even if no theft is committed? As indicated above, the crime defined in Penal Code section may be committed by entry to commit theft when it can be shown that the defendant simply intended to steal items worth less than $950. (See Pen. Code, 459.5(a) [ shoplifting is defined 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) ].) However, if property is not actually taken, it will be difficult to prove the specific intent to take a particular item worth more than $

13 F. Does the crime of shoplifting apply to entry into a store after the store is closed? Entry into a commercial establishment with intent to commit larceny outside the establishment s regular business hours is not shoplifting in violation of section 459.5(a); it is burglary in violation of Penal Code section 459. (Pen. Code, 459.5(a).) Expect issues to arise in deciding what constitutes regular business hours. For example, is it shoplifting (as opposed to burglary) when a defendant enters the store after posted business hours, but before the doors to the store are closed and store employees are still handling other commercial transactions? One case has suggested that private areas of commercial establishments (otherwise open for regular business hours) may not qualify as being an establishment... open during regular business hours for purposes of section (See People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638, 646].) G. Will there ever be any reason to charge shoplifting in violation of section instead of charging petty theft? It is unlikely that prosecutors will often want to charge a violation of section if the defendant takes property from a store worth less than $950 and does not have a prior conviction requiring sex offender registration or a prior conviction for a crime listed in section 667(e)(2)(c)(iv). Section 459.5(b) does not allow for charging a violation of section 484(a) as an alternative charge to section 459.5(a). Thus, a choice must be made. (But see this IPG memo, section 3-C at pp. 7-9 [discussing possibility this limitation is unconstitutional].) Assuming a theft has occurred, given the choice between charging shoplifting and theft, it will always be better to charge a theft. This is because it will always be easier to establish a theft in violation of Penal Code section 484(a) than a shoplifting in violation of section since there is no requirement in section 484(a) that the prosecution prove an intent to steal upon entry into the store and there is no difference in the punishment that may be imposed between the two crimes. The misdemeanor punishment language in section states it shall be punished as a misdemeanor unless the defendant has prior convictions requiring sex offender registration or prior convictions for crimes listed in Penal Code section 667(e)(2)(C)(iv). That language means punishment for shoplifting as a misdemeanor carries 13

14 a maximum of six months in jail pursuant to Penal Code section 19, which provides that every offense declared to be a misdemeanor is punishable by up to six months in jail unless a different punishment is prescribed. Penal Code sections (petty theft) similarly carries a maximum jail sentence of six months. Moreover, it cannot be assumed that if section is charged, it will be possible to obtain a conviction for section 484(a) as a lesser included offense because section does not necessarily include all the elements of theft albeit if the prosecution proceeded using specific complaint language alleging entry plus actual theft, then theft could arguably be a lesser included offense under the accusatory pleading test. (See People v. Birks (1998) 19 Cal.4th 108, 117 [ A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser ].) Indeed, it is theoretically possible that the defense may insist that the defendant be charged with shoplifting instead of theft (pursuant to section 459(b), which provides that any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting ) since it is more difficult to prove shoplifting than theft and the punishment for either crime is the same. On the other hand, if the defendant has prior convictions requiring sex offender registration or convictions for offense specified in Penal Code section 667(e)(2)(c)(iv), then, despite the greater difficulty in proving a violation of section as opposed to petty theft, the prosecutor may wish to proceed on the section charge because it can be punished as a felony instead of as a misdemeanor. (See Pen. Code, 459.5(a).) H. Will prosecutors ever want to charge a defendant with a violation of section instead of second degree burglary (i.e., when the defendant has prior convictions requiring sex offender registration or convictions for super strikes)? Even if a defendant has prior convictions requiring sex offender registration or convictions for offense specified in Penal Code section 667(e)(2)(c)(iv), it may not make sense to charge a defendant with a violation of section459.5(a) as opposed to second degree burglary. 14

15 This is because shoplifting is harder to prove than second degree burglary. Unlike with second degree burglary (which just requires entry with the intent to commit either petty or grand theft or any other felony), the crime of shoplifting requires the prosecution to prove the structure entered is a commercial establishment, was open during regular business hours, and that a petty theft occurred or the intent upon entry was to commit petty theft. It will be very difficult to prove the dollar value of what a shoplifter intended to steal (whether it was over or under $950), unless the shoplifter actually steals something. Moreover, there is no difference in the penalty that can be imposed between second degree burglary and shoplifting when the defendant has prior convictions requiring sex offender registration or convictions for offense specified in Penal Code section 667(e)(2)(c)(iv). Indeed, because it is more difficult to prove shoplifting than second degree burglary, defendants with prior convictions that allow for enhanced felony punishment who commit the crime of shoplifting may, in reliance upon subdivision (b) of section 459.5, insist upon being charged with section 459.5(a) instead of second degree burglary. It is also possible that the defense may insist that shoplifting be charged instead of a second degree burglary where there is some dispute over the actual value of the property. If a prosecutor chooses to charge second degree burglary, the prosecutor must be prepared to establish the value of the goods taken is over $950 and/or the store was entered after regular hours lest the defense argue that charging the second degree burglary violates Penal Code section 459.5(b) which states: Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. This is something that was unnecessary to do when prosecuting second degree burglaries before the passage of Proposition 47. I. If a defendant has to register as a sex offender, but he does not have a conviction for a crime listed in Health & Safety Code section 290(c), is the defendant eligible for felony punishment under section 459.5? Penal Code section 459.5(a), in pertinent part, states, [s]hoplifting shall be punished as a misdemeanor, except that a person with one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section (Emphasis added by IPG.) 15

16 Thus, if the defendant is registering as a sex offender for a crime not listed in section 290(c) (i.e., because a court has found the defendant committed the offense as a result of sexual compulsion or for purposes of sexual gratification pursuant to Penal Code section ; or because of a juvenile adjudication pursuant to Penal Code section ) the defendant is not eligible for felony punishment under section (Contrast with Penal Code section 666(a) [applying enhanced punishment to any person who is required to register pursuant to the Sex Offender Registration Act discussed in the IPG memo, section 4-A at p. 21].) J. Does section bar charging automobile burglaries or other burglaries that do not fit the definition of shoplifting? It does not appear that burglaries (including auto burglaries committed in violation of Penal Code section 459) that do not constitute shoplifting are impacted at all by Proposition 47. By its own terms, section only applies to entering a commercial establishment with the 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). (Pen. Code, 459.5(a).) Moreover, section specifically states: Any other entry into a commercial establishment with intent to commit larceny is burglary. (Pen. Code, 459.5(a).) In People v. Acosta (2015) 242 Cal.App.4th 521, the court rejected defendant s argument that his attempted auto burglary was covered by section 459.5: Section makes reference to no other type of burglary, and it provides no reason to believe that burglary of a locked motor vehicle is now a misdemeanor when the loss does not exceed $950. (Id. at pp ; see also People v. Gonzales (2015) 242 Cal.App.4th 35, [rev. gtd, docket # S231171] [defendant s entry into bank to cash forged checks was just a burglary and section does not permit resentencing for other theft offenses involving property under the threshold of $950 such as burglary].) The issue of whether section impliedly includes any second degree burglary involving property valued at $950 or less is pending before the California Supreme Court in People v. Gonzales, docket # S [formerly 242 Cal.App.4th 35].) 16

17 K. Does entry into a commercial establishment with the intent to commit a crime (e.g., cashing forged checks) that does not meet the technical definition of larceny constitute a violation of section As noted above, the crime of shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours[.] (Pen. Code, ) Whether larceny should be treated as synonymous with theft is subject to some dispute. (Compare People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171] [no] with People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] [yes].) In People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171] the defendant entered a bank and cashed two forged checks totaling $250. The checks were made payable to the defendant and had the forged signature of the defendant s grandmother. The defendant was convicted of commercial burglary in violation of Penal Code section 459 by way of a guilty plea after the forgery charge was dismissed. (Id. at pp ) After Proposition 47 passed, the defendant petitioned to be resentenced as a misdemeanant, claiming his offense qualified as shoplifting under section The trial court denied the request and defendant appealed. (Id. at pp ) Relying on the California Supreme Court case of People v. Williams (2013) 57 Cal.4th 776, the Gonzalez court upheld the denial, pointing out that larceny requires a trespassory taking, which is a taking without the property owner s consent and, in the instant case, the Bank of America consented to transferring title and possession to $250 to the defendant. (Id. at p. 39.) That is, the defendant used false representations that he was cashing valid checks made out to him to obtain the money from Bank of America. Relying on those representations, which the bank must have believed to be true, it consented to giving [the defendant] the money. (Id. at pp [and also rejecting the argument that section allows for resentencing for other theft offenses involving property under the threshold of $950 such as burglary even though burglary is not specified in the statute].) However, People v. Gonzales (2015) 242 Cal.App.4th 35 has been taken up for review by the California Supreme Court on the following issue: Was defendant entitled to resentencing under Penal Code section on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, 459.5) or on the ground that section impliedly includes any second degree burglary involving property valued at $950 or less? 17

18 (See People v. Gonzales, docket # S )* *Editor s note: On the California Supreme Court website, there is a caveat regarding the description of the identified issue: The statement of the issues is intended simply to inform the public and the press of the general subject matter of the case. The description set out above does not necessarily reflect the view of the court, or define the specific issues that will be addressed by the court. (See c_no=s On the other hand, in People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638], the trial court denied a defendant s request to reduce her second degree burglary conviction to a misdemeanor where the conviction was based on entry into a check cashing establishment with the intent to use a forged check for $148. The trial court believed section did not apply because the defendant did not to commit what the court commonly understood as shoplifting the entry into a retail establishment to steal displayed merchandise[.] (Id. at p. 639.) The appellate court disagreed with the trial court, finding defendant s entry into the check cashing establishment with the intent to commit theft by false pretenses met the requirements of section and qualified her for resentencing. (Id. at p. 640.) The Vargas court rejected the People s argument that section is limited to the common understanding of shoplifting (i.e., the unauthorized 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 ). (Id. at p. 640.) The Vargas court acknowledged that a lay person might understand shoplifting to mean entering a retail store during regular business hours with the intent to steal displayed merchandise, but stated that is not how it is defined in section 459.5: it is entering a commercial establishment during business hours with the intent to commit larceny. (Id. at p. 640.) The Vargas court was similarly not convinced that just because use of the term commercial establishment in section is more narrow in scope than the many different types of structure identified in section 459 (including any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, etc.), that this meant the voters intended the term commercial establishment to be synonymous with retail establishment. (Id. at p. 653.) Lastly, the Vargas court rejected the People s argument that because section 459.5, in contrast to section (which made certain theft offenses into petty theft when the value of the money, labor, real personal property taken does not exceed $950) makes no reference to money, labor, or real property, section only applies when the theft is of personal property (i.e., merchandise). The Vargas court rejected this argument because, while section

19 does not itself define the term property, nothing suggests voters intended to limit the term to personal property. And, in any event, section refers to the intent to commit larceny, thereby incorporating the definition of theft in section 484(a), which in turn defines theft by false pretenses as defrauding another person of money, labor or real or personal property, the nearly identical language in section (Id. at pp ) The Vargas court also rejected the People s argument, based on People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171] (discussed in this IPG memo, section 3-K at p. 17), that the intent to commit larceny element in section cannot be satisfied by entering a commercial establishment with the intent to commit theft by false pretenses. (Id. at p. 640.) The Vargas court concluded the phrase intent to commit larceny included the intent to commit theft by false pretenses because [l]arceny is statutorily equated with theft ( 490a), and theft is defined to include theft by false pretenses, that is, knowingly and designedly, by any false or fraudulent representation or pretense, defraud[ing] any other person of money, labor or real or personal property. ( 484, subd. (a).) (Vargas at p ) The Vargas court believed the Gonzalez court went astray by relying on People v. Williams (2013) 57 Cal.4th 776, which held that only theft by larceny, not by false pretenses, can fulfill the felonious taking requirement of robbery because the felonious taking element of robbery must be without the consent of the property owner, and theft by false pretenses involves the consensual transfer of possession as well as title of property. (Vargas at pp ) However, the Vargas court said section redefined certain second degree burglaries, and our high court has held [a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction. (Id. at p. 640 citing to People v. Parson (2008) 44 Cal.4th 332, 354.) Because Proposition 47 used the phrase intent to commit larceny in section 459.5, which mirrors the intent element in the general burglary statute ( 459), and that phrase includes theft by false pretenses, the Vargas court believed the voters intended section to include theft by false pretenses. (Id. at p. 646.) The Vargas court was also persuaded its interpretation was consistent with the general intent behind Proposition 47 to focus spending on violent and serious offenses and require misdemeanors instead of felonies for nonserious, nonviolent crimes since the defendant s conduct should unquestionably be viewed as a nonviolent offense given the fact Proposition 47 also reduced the offense of forgery involving less than $950 from a wobbler to a straight misdemeanor. ( 473, subd. (b).) (Ibid.) 19

20 In People v. Triplett 2016 WL , the appellate court agreed with Vargas that convictions for burglary based on entry into a bank with the intent to pass a fraudulent check under $950 and entry into a liquor store with a similar intent both qualified for reduction to misdemeanors because they would have been violations of section had they been committed after the passage of Proposition 47. (Id. at pp. *1, *5-*6.) The Triplett court rejected the People s argument that because the defendant entered the businesses to cash checks belonging to another person, the burglaries were based on felony identity theft, not larceny, and thus did not qualify for reduction. (Id. at p. *5.) The Triplett court reasoned that larceny is theft and theft is defined very broadly to include knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money - which would encompass fraudulent presentation of a check belonging to someone else to obtain money. (Ibid.) A similar argument made by the People that defendant s intent in both burglaries was to commit forgery, not larceny, was rejected for the same reason. (Ibid.) The Triplett court adopted very similar reasoning to the court in People v. Vargas (2016) 243 Cal.App.4th 1416 in support of its conclusion, finding that the court in People v. Gonzales (2015) 242 Cal.App.4th 35, [rev. gtd, docket # S231171] went astray by relying on what larceny means in the context of robbery cases instead of what it means in burglary cases. (Triplett at p. *5.) The court noted Penal Code section 490a replaced statutory references to larceny with theft and while section 490a has no application to robbery, it does apply to burglary and to shoplifting. (Id. at p. *6.) *Editor s note: Although it is unlikely the voters (or even the proponents) actually believed shoplifting would include entry into a bank to cash a forged check, the statutory language itself favors the interpretation of section adopted by the Vargas court rather than the Gonzalez court. 20