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People v. Powell

Mar 7, 2017
H043181 (Cal. Ct. App. Mar. 7, 2017)




THE PEOPLE, Plaintiff and Respondent, v. LACOREY POWELL, Defendant and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. EE014155)

Defendant Lacorey Powell was convicted of three felony offenses: first degree burglary (Pen. Code, §§ 459, 460, subd. (a)) (count 1), receiving stolen property (§ 496, subd. (a) (count 3), and second degree burglary (§§ 459, 460, subd. (b)) (count 8). Years after conviction, defendant filed a petition to redesignate counts 3 and 8 as misdemeanors pursuant to section 1170.18. The trial court granted his petition as to count 3 but denied his petition as to count 8.

All further statutory references are to the Penal Code unless otherwise stated.

Section 1170.18 was added in 2014 when the voters approved Proposition 47, known as the Safe Neighborhoods and Schools Act (Act). (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) Section 1170.18 establishes a procedure that a defendant may use to obtain redesignation of a felony conviction as a misdemeanor if the felony sentence has been completed and the offense would have been a misdemeanor under Proposition 47 if it had been committed when the proposition was in effect. (§ 1170.18, subds. (f), (g).) Among the crimes reduced to misdemeanors by Proposition 47 are certain second degree burglaries that constitute the new crime of misdemeanor shoplifting as defined in section 459.5, which was also added by Proposition 47. (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 5, p. 71; § 459.5, subd. (a).)

The record reflects that, on about March 9, 2000, defendant entered an open commercial establishment (a Ross store) during regular business hours with the intent to commit theft by using a stolen credit card to purchase $585 worth of clothing. On appeal, defendant principally argues that the trial court erred in failing to redesignate that conviction as a misdemeanor by (1) improperly going "outside the bounds of the pleading" to speculate that his intended crime was forgery or fraud rather than larceny, and (2) misconstruing the new misdemeanor shoplifting statute (§ 459.5). Defendant asserts that both his no-contest plea to second degree burglary and the facts underlying his conviction satisfy the intent element of shoplifting as defined by section 459.5.

The critical question is whether defendant had the requisite intent for shoplifting since, as we subsequently explain, the theft offense intended by him did not constitute larceny or larceny by trick but rather theft by false pretenses. The new statute establishing the crime of shoplifting indicates that "intent to commit larceny" is required (§ 459.5, subd. (a)). There is a split of authority whether the intent to commit any theft, including theft by false pretenses, suffices to establish the crime of shoplifting. The same or similar issue is currently pending before the California Supreme Court. (See People v. Gonzales (2015) 242 Cal.App.4th 35 (Gonzales), review granted Feb. 17, 2016, S231171; see also People v. Martin (2016) 6 Cal.App.5th 666 (Martin), review granted Feb. 15, 2017, S239205 [holding for lead case]; People v. Garner (2016) 2 Cal.App.5th 768, B266881, review granted Oct. 26, 2016, S237279 [same]; People v. Abarca (2016) 2 Cal.App.5th 475, review granted Oct. 19, 2016, S237106 [same]; People v. Smith (2016) 1 Cal.App.5th 266, review granted Sept. 14, 2016, S236112 [same]; People v. Garrett (2016) 248 Cal.App.4th 82, review granted Aug. 24, 2016, S236012 [same]; People v. Valencia (2016) 245 Cal.App.4th 730, review granted May 25, 2016, S233402 [same]; People v. Bias (2016) 245 Cal.App.4th 302, review granted May 11, 2016, S233634 [same]; People v. Root (2016) 245 Cal.App.4th 353, review granted May 11, 2016, S233546 [same]; People v. Triplett (2016) 244 Cal.App.4th 824, review granted April 27, 2016, S233172 [same]; People v. Vargas (2016) 243 Cal.App.4th 1416, review granted Mar. 30, 2016, S232673 [same].)

The Supreme Court's website states that Gonzales , supra, 242 Cal.App.4th 35, review granted Feb. 17, 2016, S231171, presents the following issue: "Was defendant entitled to resentencing under Penal Code section 1170.18 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 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?"(<> [as of March 6, 2017].) --------

We conclude, based upon the long-standing construction of the burglary statute (§ 459) in light of section 490a and the purposes of Proposition 47, that section 459.5 encompasses offenses otherwise qualifying as shoplifting where the offense was committed with intent to commit theft by false pretenses. Consequently, the trial court erred when it denied defendant's petition on the ground that his second degree burglary conviction did not meet the statutory definition of shoplifting. We will reverse its order.


Procedural History

An amended felony complaint, filed June 5, 2000, alleged that defendant committed first degree burglary (§§ 459, 460, subd. (a)) on or about March 2, 2000 (count 1), received stolen property (§ 496, subd. (a)) on or about March 9, 2000 (count 3), and committed second degree burglary (§§ 459, 460, subd. (b)) on or about March 9, 2000 (count 8). Count 8 of the amended felony complaint specifically alleged that defendant "enter[ed] a building, Ross, a commercial store, located at 119 E. El Camino Real, Sunnyvale, with the intent to commit theft."

On June 13, 2000, pursuant to a plea agreement, defendant pleaded no contest to the alleged crimes.

A probation report, dated September 18, 2000, described the offenses, including count 8. It indicated that defendant first entered the Ross store on March 2, 2000, and attempted to purchase almost $400 worth of clothing with a VISA credit card that did not belong to him. When asked for his identification, he stated that "he did not have it on him." Defendant left the store, impliedly to look for his identification, and when he returned, he reported that he could not find it. Defendant went back to the Ross store on about March 9, 2000. He attempted to purchase $585 worth of clothing with the same VISA credit card that did not belong to him. When defendant was asked for identification, he stated it was in his vehicle. Defendant left the store but came back without his identification. Later, on the evening of March 9, 2000, a woman entered the store and attempted to purchase $50 worth of merchandise with the same credit card. She left the store after being told the card could not be used because it was believed to be stolen.

On October 23, 2000, the trial court suspended imposition of sentence and placed defendant on three years of formal probation. A 12-month county jail term was imposed as a condition of probation.

On August 27, 2015, defendant filed a petition to redesignate two of his felony convictions, counts 3 and 8, as misdemeanors pursuant to section 1170.18. The petition stated that defendant had completed his sentence in this case.

In a written response to the petition, the Santa Clara County District Attorney (D.A.) agreed that the petition should be granted as to count 3, but asked the court to deny the petition as to count 8. The D.A. asserted that defendant had attempted to use a stolen credit card, which constituted forgery rather than shoplifting. In subsequent briefing, the D.A. argued that defendant's second degree burglary offense did not qualify as shoplifting as defined by section 459.5 because defendant had not committed larceny and the definition of shoplifting does not encompass all types of theft.

On December 7, 2015, a hearing was held on defendant's petition. The trial court redesignated count 3, but not count 8, as a misdemeanor. The court relied on section 459.5's explicit use of the term "larceny" and found that the crime of shoplifting requires a trespassory taking of property with the intent to permanently deprive and that there is no trespassory taking where property is obtained from a merchant by "forgery or other fraud."



A. Legal Background

" 'Proposition 47 makes certain drug-and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' [Citation.]" (People v. Morales (2016) 63 Cal.4th 399, 404.)

Section 1170.18, which as indicated was added by Proposition 47 (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 14, pp. 73-74), provides a procedure allowing a person who does not have a disqualifying prior conviction (§ 1170.18, subd. (i)) and who has completed a felony sentence for an eligible felony conviction to apply to have the conviction redesignated as a misdemeanor. (§ 1170.18, subd. (f).) Section 1170.18 states that, once a conviction is redesignated as a misdemeanor, the conviction "shall be considered a misdemeanor for all purposes." (§ 1170.18, subd. (k).)

Section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor." (§ 1170.18, subd. (g).) "Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subsection (f)." (§ 1170.18, subd. (h).)

As indicated, Proposition 47 also added sections 459.5 (see Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 5, p. 71). Section 459.5 now provides: "(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." Section 459.5 requires "[a]ny act of shoplifting as defined in subdivision (a) [to] be charged as shoplifting." (§ 459.5, subd. (b)) It states that "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property." (Ibid.)

As relevant here, section 459 provides that "[e]very person who enters any . . . store . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." (§ 459, italics added.) Proposition 47 did not amend section 459.

The analysis of Proposition 47 by the Legislative Analyst set forth in the Voter Information Guide explained: "Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Voter Information Guide, supra, analysis of Prop. 47 by Legislative Analyst, p. 35.) B. Nature of Second Degree Burglary Conviction

Defendant first contends that the trial court improperly went "outside the bounds of the pleading" to deny his redesignation request as to count 8 insofar as it found that defendant entered the Ross store with the intent to commit forgery or other fraud rather than theft. He argues that, "[h]aving . . . secured conviction based on an allegation that [he]entered Ross to commit theft . . . , the government may not now seek to repudiate that basis for the charge to prevent him from obtaining . . . relief under section 1170.18.

The record does not reflect that the trial court recast defendant's second degree burglary conviction as the entry of a commercial store with the intent to commit a felony other than theft. In discussing whether defendant's second degree burglary conviction qualified as misdemeanor shoplifting, the trial court made the general comment that crimes involving the "fraudulent return of property for receipt of cash or the purchase of property which is given over [by a merchant] . . . on the basis of [an] invalid access card, [a] stolen credit card or . . . [a forged] check" did not meet the common understanding of "shoplifting" because, in such cases, "the merchant willingly turns over the money or the merchandise based . . . upon some forgery or other fraud . . . ." The trial court found that Proposition 47 made a "clear distinction" between theft and larceny, and it observed that section 459.5 "expressly and explicitly uses the phrase 'larceny,' " which requires a trespassory taking. The court impliedly concluded that only second degree burglary convictions based upon intent to commit larceny (as opposed to other forms of theft) were eligible for relief under section 1170.18.

The court's remarks are most reasonably understood as differentiating between the various forms of theft, such as larceny and theft by false pretenses. Defendant has not affirmatively shown by reference to the record that the trial court "went outside the bounds of the pleading" "by introducing two new crimes (forgery or fraud) that could have served as the basis for the [second degree burglary] offense" rather than "relying on the pleadings, which stated [defendant] entered [a Ross store] with intent to commit theft . . . ." Accordingly, we reject any claim that the court improperly found that defendant had committed a crime other than the exact one to which he pleaded. "An order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)" (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.)

Insofar as defendant is also arguing that his no contest plea to "enter[ing] a building, Ross, a commercial store, . . . with the intent to commit theft" necessarily established his intent to commit larceny, he is mistaken. His plea merely established that he entered with the intent to commit some form of theft, not necessarily that he entered with the intent to commit larceny.

"Theft" is generally defined in section 484. That section was amended in 1927 to "amalgamate the crimes of larceny, embezzlement, false pretenses, and kindred offenses under the cognomen of theft." (People v. Myers (1929) 206 Cal. 480, 483 (Myers).) But, as the Supreme Court made clear in Myers, the amendment did not alter those crimes: "No elements of the former crimes have been changed by addition or subtraction. This is particularly true of the crime of larceny. All former elements of this offense are perpetuated and contained in section 484 as amended." (Ibid.) The Supreme Court has reiterated that the consolidation of "the formerly distinct offenses of larceny, embezzlement, and obtaining property by false pretenses . . . into the single crime of 'theft' defined by Penal Code section 484" did not abolish their "substantive distinctions." (People v. Davis (1998) 19 Cal.4th 301, 304 (Davis).)

Myers, which was decided not long after the Legislature enacted the 1927 statute amending section 484 and adding section 490a, indicated that an entry of a qualifying structure with the intent to commit any form of theft was burglary. In that case, an amended information charged that "[t]he said Frank A. Myers '. . . did willfully, unlawfully feloniously and burglariously enter the store, room and building of one August Wahlforth, located at number 124 North Main street, in the city of Los Angeles . . . with the intent then and there and therein to commit the crime of theft.' " (Myers, supra, 206 Cal. at p. 481.) Myers explained: "The amendment to section 484, in connection with other cognate legislation such as the amendments to sections 951 and 952 of the Penal Code (Stats. 1927, p. 1043), is designed not only to simplify procedure but also to relieve the courts from difficult questions arising from the contention that the evidence shows the commission of some other of these crimes than the one alleged in the indictment or information, a contention upon which defendants may escape just conviction solely because of the border line distinction existing between these various crimes." (Id. at p. 484.)

On appeal in Myers, the defendant argued that section 490a is "ineffectual to interpret the word 'larceny' to mean 'theft' in section 459 of the Penal Code because of [former] article IV, section 24, of the constitution, to the effect that the act revised or section amended shall be re-enacted and published at length as revised or amended." (Myers, supra, 206 Cal. at p. 485.) The Supreme Court rejected that argument. (Ibid.) The defendant also "contended that, inasmuch as section 484 now has these three crimes included within it, by charging the intent to be that of theft, the defendant is left without sufficient information as to which particular brand of theft he is supposed to have intended by the felonious entry of the building." (Ibid.) The court rejected that claim as well, finding it sufficient that the amended information told the defendant that "he is charged with the felonious entry of a certain building, at a certain time, with a certain intent." (Ibid.)

In a subsequent case, the Supreme Court explained that "[t]he elements of the several types of theft included within section 484 have not been changed . . . , and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses. [Citation.]" (People v. Ashley (1954) 42 Cal.2d 246, 258.) But "[a] jury need not unanimously decide what form of theft a defendant committed." (People v. Vidana (2016) 1 Cal.5th 632, 643 (Vidana); see People v. Nor Woods (1951) 37 Cal.2d 584, 586 ["it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which the theft fell"].)

Defendant's no contest plea to entering Ross with the intent to commit the crime of theft did not necessarily, in and of itself, establish that he entered Ross with the intent to commit larceny rather than some other form of theft. B. Circumstances Do Not Establish Entry with Intent to Commit Larceny

In his opening brief, defendant appears to be arguing that his conduct underlying the second degree burglary conviction could be viewed as showing intent to commit some form of larceny, either larceny by stealing or larceny by trick. Assuming for the sake of argument that the trial court correctly construed section 459.5 as requiring an intent to commit larceny, it was defendant's burden under section 1170.18 make a showing that the form of theft that he intended to commit was larceny. (People v. Pak (2016) 3 Cal.App.5th 1111, 1117; see People v. Sherow (2015) 239 Cal.App.4th 875, 880; Evid. Code, § 500.)

Defendant asserts that his intended crime fit the definition of larceny because he intended to steal when he entered the store, such intent negated the store's implicit consent to his picking up and carrying the merchandise to the cashier, and therefore he engaged in a trespassory taking when he picked up the merchandise. Alternatively, defendant contends that his intended offense could be viewed as larceny by trick because his "use of the stolen credit card was the fraudulent device or deception [by which he] attempt[ed] to take Ross merchandise."

"The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away. [Citations.]" (Davis, supra, 19 Cal.4th at p. 305.) "The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property. [Citation.]" (Ibid., fns. omitted.) "This is not traditional trespass onto real property, of course, but trespass de bonis asportatis or trespass 'for goods carried away.' [Citation.]" (Id. at p. 305, fn. 2.) "When the consent [to possession] is procured by fraud it is invalid and the resulting offense is commonly called larceny by trick and device. [Citations.]" (Id. at p. 305, fn. 3; see People v. Rae (1885) 66 Cal. 423, 424-425.)

"The reasoning supporting larceny by trick's inclusion within the crime of larceny—that fraud vitiates the property owner's consent to the taking—was not extended, however, to cases involving the fraudulent transfer of title. [Citations.] Under the common law, if title was transferred, there was no trespass and hence no larceny. [Citations.] The theory was that once title to property was voluntarily transferred by its owner to another, the recipient owned the property and therefore could not be said to be trespassing upon it. [Citations.]" (People v. Williams (2013) 57 Cal.4th 776, 784 (Williams).)

"[T]heft by false pretenses involves the consensual transfer of possession as well as title of property; therefore, it cannot be committed by trespass." (Williams, supra, 57 Cal.4th at p. 788, second italics added; see id. at p. 789 ["the acquisition of title involved in the crime of theft by false pretenses precludes a trespass from occurring"].) In addition, "theft by false pretenses, unlike larceny, has no requirement of asportation." (Id. at p. 787.) "The offense requires only that '(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.' [Citation.] The crime of theft by false pretenses ends at the moment title to the property is acquired . . . ." (Ibid.)

In entering the Ross store with the intent to purchase merchandise with a stolen credit card, defendant was intending to obtain the voluntary transfer of possession and title. Defendant concedes as much, stating that he "attempted to obtain possession and ownership of these goods from Ross by deceitfully representing, by his use of the [stolen] credit card, that he was making a valid purchase." (Italics added.)

Thus, the circumstances of this case are distinguishable from the situation where a person takes an item from a store display with the intent of falsely claiming ownership and obtaining a "refund" for its return from a cashier, such as occurred in Davis. In Davis, which defendant cites, the California Supreme Court rejected an argument that defendant Davis did not intend to steal "because he had no intent to permanently deprive Mervyn's of the shirt" in that "he intended to have the shirt in his possession only long enough to exchange it for a 'refund.' " (Davis, supra, 19 Cal.4th. at p. 305.) The court stated that "a self-service store like Mervyn's impliedly consents to a customer's picking up and handling an item displayed for sale and carrying it from the display area to a sales counter with the intent of purchasing it; the store manifestly does not consent, however, to a customer's removing an item from a shelf or hanger if the customer's intent in taking possession of the item is to steal it." (Id. at p. 306.) The court observed that "the risk that such a taking will be permanent is not a mere theoretical possibility" "because if the defendant's attempt to obtain a refund for the item fails for any reason, he has a powerful incentive to keep the item in order to avoid drawing attention to the theft." (Id. at 316.) It concluded: "[The] defendant's intent to claim ownership of the shirt and to return it to Mervyn's only on condition that the store pay him a 'refund' constitutes an intent to permanently deprive Mervyn's of the shirt within the meaning of the law of larceny, and hence an intent to 'feloniously steal' that property within the meaning of Penal Code section 484, subdivision (a) . . . . Because Mervyn's cannot be deemed to have consented to defendant's taking possession of the shirt with the intent to steal it, defendant's conduct also constituted a trespassory taking within the meaning of the law of larceny." (Id. at p. 317.)

Defendant's conduct did not indicate that he entered Ross with the intent to take merchandise and seek a refund for its return. Rather, his conduct reflected an intent to obtain both possession and title to clothing by using a credit card that he falsely presented as his own to purchase it, in other words theft by false pretenses. (See Williams, supra, 57 Cal.4th at p. 788 [the defendant did not commit larceny where he acquired ownership of gift cards by falsely representing that "he was using valid payment cards to purchase the gift cards" and "Walmart, through its store employees, consented to transferring title to the gift cards" to him].) C. Construction of Section 459.5 in Light of Sections 459 and 490a

Lastly, defendant argues that section 490a requires the word "theft" to be substituted for the word "larceny" in section 459.5 and that, therefore, his second degree burglary offense meets the legal definition under section 459.5, even if his intended crime was theft by false pretenses. He contends that, if the electorate had not intended that result, section 459.5 would have included language expressly making section 490a inapplicable.

Section 490a was added in 1927 (Stats. 1927, ch. 619, § 7, p. 1047) as part of the same legislation amending section 484 to consolidate the crimes known as larceny, embezzlement, and obtaining property under false pretenses into a single statutory offense of theft. (See Stats. 1927, ch. 619, § 1, p. 1046; Vidana, supra, 1 Cal.5th at pp. 640-641, 648.) Section 490a, which has never been amended, provides: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor." Section 490a's legislative history "states: 'It is recommended that this new section be added, providing that wherever any law or statute of this State mentions larceny, embezzlement, or stealing, it shall hereafter be read and interpreted as if theft were the crime referred to, thus obviating the necessity of amending several sections which relate to the crimes now sought to be consolidated into the new crime of theft.' (Com., Rep., [(Jan. 13, 1927)], published in 1 Sen. J. (47th Sess. 1927) p. 156, reprinted at 5 Appen. to Sen. & Assem. JJ. (47th Sess. 1927) pp. 11-12.)" (Vidana, supra, at p. 641.)

Defendant in effect argues that section 490a automatically substitutes "theft" for "larceny" in any statutory text, including section 459.5. There are cases supporting this position. (See e.g. People v. Nguyen (1995) 40 Cal.App.4th 28, 30 (Nguyen); People v. Dingle (1985) 174 Cal.App.3d 21, 30 (Dingle).)

Recently, however, the California Supreme Court stated in another context that "section 490a should not be read literally." (Vidana, supra, 1 Cal.5th at p. 647.) It explained: "[L]iteral application of section 490a would render many statutes nonsensical. Although this court long ago said that 'the essence of section 490a is simply to effect a change in nomenclature without disturbing the substance of any law' (Myers, supra, 206 Cal. at p. 485; accord, Williams, supra, 57 Cal.4th at p. 789), it does not appear we have ever applied section 490a to effect a change in nomenclature or to change the language of any statute." (Ibid., fn. omitted.) It found that "[a]lthough the terms of section 490a are awkward in their literal application, the obvious intent of this statute . . . was to create a single crime of theft." (Id. at p. 648; see id. at p. 649 [holding larceny under section 484(a) and embezzlement under section 503 are different statements of the same offense].)

Relying in part upon Vidana's admonishment against literal application of section 490a, an appellate court recently concluded that the term "larceny" in section 459.5 should not be read as the term "theft" in light of section 490a because that would be literally changing the language of section 459.5 as enacted. (Martin, supra, 6 Cal.App.5th at p. 678.) It determined that the defendant in that case intended to commit the historical common law crime of theft by false pretenses rather than larceny and, therefore, his conduct did not qualify as shoplifting. (Id. at p. 684.) The flaw in Martin's reasoning is that it does not take into account the judicial construction of "larceny" in section 459.

We review de novo the purely legal question of statutory construction. (See People v. Arroyo (2016) 62 Cal.4th 589, 593.) "As in any case involving statutory interpretation, our fundamental task here is to determine the [legislative] intent so as to effectuate the law's purpose. [Citation.]" (People v. Murphy (2001) 25 Cal.4th 136, 142.) While "[w]e begin by examining the statute's words" (ibid.), we do not "consider the statutory language 'in isolation.' [Citation.]" (Ibid.) "Rather, we look to 'the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]' [Citation.] That is, we construe the words in question ' "in context, keeping in mind the nature and obvious purpose of the statute . . . ." [Citation.]' [Citation.] We must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (Ibid.) "The general principles that govern interpretation of a statute enacted by the Legislature apply also to an initiative measure enacted by the voters. [Citation.] Thus, our primary task here is to ascertain the intent of the electorate [citation] so as to effectuate that intent [citation]." (Arias v. Superior Court (2009) 46 Cal.4th 969, 978-979.)

Sections 459 and 459.5 are closely tied together. The statutory definition of shoplifting expressly refers to both burglary and section 459. Both statutes indicate that the crime's intent element is satisfied by an intent to commit larceny. (See § 459 ["with intent to commit grand or petit larceny or any felony"]; 459.5 ["with intent to commit larceny"].) Both sections are found in the same chapter of the Penal Code, entitled "Burglary." In addition, subdivision (b) of section 459.5 provides: "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." Thus, section 459.5 effectively carves out or splits off a new crime of shoplifting from the crime of second degree burglary (§§ 459, 460, subd. (b)).

"Statutes in pari materia should be construed together. [Citation.]" (Long Beach Police officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 744.) " 'It is an established rule of statutory construction that similar statutes should be construed in light of one another [citations], and that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]' (People v. Caudillo (1978) 21 Cal.3d 562, 585, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 229, 237, fn. 6.)" (People v. Lamas (2007) 42 Cal.4th 516, 525.) Thus, "[i]t is presumed, in the absence of anything in the statute to the contrary, that a repeated phrase or word in a statutory scheme is used in the same sense throughout. (See People v. Hernandez (1981) 30 Cal.3d 462, 468.)" (People v. Burns (1997) 53 Cal.App.4th 1171, 1175.)

The term "larceny" in the context of the burglary statute (§ 459) has been construed as including all forms of theft. The California Supreme Court has stated that "the substantive crime of burglary is defined by its elements as: (1) entry into a structure, (2) with the intent to commit theft or any felony. (§ 459; see also CALCRIM No. 1700.)" (People v. Anderson (2009) 47 Cal.4th 92, 101, fn. omitted; see e.g. People v. Wallace (2008) 44 Cal.4th 1032, 1077 ["Burglary requires an entry into a specified structure with the intent to commit theft or any felony."]; People v. Tafoya (2007) 42 Cal.4th 147, 170-171 [same]; People v. Hughes (2002) 27 Cal.4th 287, 351 ["intent to commit any felony (or theft) suffices for burglary"]; People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18 ["An entry with [intent to commit theft] is, by statutory definition (Pen.Code, § 459), a burglary"].) In People v. Montoya (1994) 7 Cal.4th 1027, the California Supreme Court explained that a person "may b[e] liable for burglary upon entry with the requisite intent to commit a felony or a theft (whether felony or misdemeanor), regardless of whether the felony or theft committed is different from that contemplated at the time of entry, or whether any felony or theft actually is committed. [Citations.]" (Id. at pp. 1041-1042; see CALCRIM No. 1700 [burglary instruction requires the People to prove that, when defendant entered qualifying structure, "(he/she) intended to commit (theft/ [or] ___<insert one or more felonies>)"; see also People v. Carter (2005) 36 Cal.4th 1114, 1145 [Oregon conviction "of 'knowingly and unlawfully enter[ing] a dwelling . . . with the intent to commit the crime of theft therein[]' " "satisf[ied] the necessary elements to convict defendant of first degree burglary in California"]; Myers, supra, 206 Cal. at pp. 483, 485.)

Case law further confirms that an entry into a qualifying structure with the intent to obtain property by false pretenses, one of the forms of theft incorporated into section 484, constitutes burglary. For example, in Williams, the California Supreme Court stated that "if a defendant enters a store with the intent to commit theft by false pretenses (as defendant did here), and if that defendant, while fleeing, kills a store employee, that defendant can be convicted of felony-murder burglary." (Williams, supra, at p. 789, fn. 4.) In People v. Parson (2008) 44 Cal.4th 332, the California Supreme Court stated that "[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction. (E.g., People v. Nguyen (1995) 40 Cal.App.4th 28, 30-31 [false pretenses].)" (Id. at p. 354.)

In Nguyen, the case cited in Williams, supra, 57 Cal.4th 776, the defendant was convicted of three counts of burglary committed when he entered the victims' homes and paid for items advertised for sale by writing a check on an account that he had already personally closed. (Nguyen, supra, 40 Cal.App.4th at p. 30.) The defendant argued that "the burglary statute requires an entry with an intent to commit 'grand or petit larceny or any felony' (§ 459, emphasis added) and he intended neither a 'larceny' nor a felony but rather a 'petit [i.e., misdemeanor]' theft by false pretenses." (Ibid.) Relying on section 484 as amended in 1927 and on section 490a as added in 1927, the appellate court concluded that "the Legislature has indicated a clear intent that the term 'larceny' as used in the burglary statute should be read to include all thefts, including 'petit' theft by false pretenses." (Nguyen, supra, at p. 31.) The court concluded that the defendant "was properly convicted of burglary pursuant to the clear language of section 459." (Id. at p. 35.)

In Dingle, the defendant was charged with, among other crimes, entering the victim's home with the intent to commit theft, which allegedly occurred when he placed an unauthorized long distance call that was billed to the victim. (Dingle, supra, 174 Cal.App.3d at p. 29.) The defendant maintained that his conduct was not theft, or even if it was theft, it was not larceny and "larceny is the only form of theft contemplated by the burglary statute." (Ibid.) The appellate court rejected defendant Dingle's arguments, stating: "Section 490a not only changed section 484 so that the word 'larceny' formerly used therein became superseded by the word 'theft,' but plainly means that the word 'larceny' in section 459 shall now be read and interpreted as if the word 'theft' were substituted." (Id. at p. 30) The court indicated that former section 502.7, subdivision (a)(1),—which made it unlawful to obtain telephone service "with intent to defraud"—was akin to theft by false pretenses and therefore sufficient to satisfy the theft element in an allegation of burglary. (Dingle, supra, at pp. 29, fn. 8, 30.)

The People nevertheless argue that the word "shoplifting" "has long and commonly been understood to encompass only the taking and carrying away without payment of openly displayed merchandise from commercial establishments" and that the voters, who were presumably aware of that meaning, intended the word "larceny" in the shoplifting statute to have its common law meaning. The People maintain that, since the ballot materials did not state otherwise, "any voter who read the ballot pamphlet materials could only have understood 'shoplifting' by its normal and everyday meaning." They state that "there is no reason to conclude that the voters had anything in mind other than the traditional and more limited sense of larceny" in enacting section 459.5. The People acknowledge, however, that "a burglary . . . , which may be committed with the intent to commit a 'larceny,' may be satisfied by evidence showing an intent to commit any kind of theft, per section 490a."

"[T]he Legislature is deemed to be aware of existing laws and judicial decisions in effect at the time legislation is enacted and to have enacted and amended statutes ' "in the light of such decisions as have a direct bearing upon them." ' [Citations.]" (People v. Overstreet (1986) 42 Cal.3d 891, 897.) "This principle applies to legislation enacted by initiative. [Citation.]" (People v. Weidert (1985) 39 Cal.3d 836, 844 (Weidert).) The People submit that this presumption should not be applied where a statute is enacted by voters, citing People v. Davenport (1985) 41 Cal.3d 247 (Davenport).

In Davenport, the California Supreme Court mentioned in a footnote that "there may be some basis for the argument that some of the principles which guide courts in their efforts to ascertain the intent of particular statutory provisions enacted through the legislative process may not carry the same force and logic when applied to an initiative measure." (Davenport, supra, 41 Cal.3d at p. 263, fn. 6.) But the Supreme Court observed that "[t]he courts have not heretofore recognized different rules for interpreting statutes enacted by initiative," and it declined to "decide whether it might be appropriate to do so in some future case." (Ibid.) It found that a statutory presumption regarding the voters' intent governed resolution of the case. (Id. at pp. 263-264, fn. 6)

Nothing in the ballot materials supports the People's position that the statutory definition of shoplifting is confined to the layperson's conception of "shoplifting." In the absence of any evidence rebutting the presumption that "[t]he enacting body is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted[]" (Weidert, supra, 39 Cal.3d at p. 844) or a conflict with another salutary principle of statutory interpretation, we apply the presumption. We presume that the voters were aware of the law of burglary (§ 459) when they enacted section 459.5 and the "judicial decisions interpreting the language they chose to employ. [Citations.]" (See People v. Cruz (1996) 13 Cal.4th 764, 775.) We conclude that the word "larceny" in section 459.5 was intended to have the same, well-established meaning as it does in the context of section 459.

Our conclusion is entirely consistent with, and buttressed by, the purposes and intent underlying Proposition 47. Those purposes and intent include "ensur[ing] that prison spending is focused on violent and serious offenses" (Voter Information Guide, supra, text of Prop. 47, § 2, p. 70), generally "[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft" (id., § 3, subd. (3), p. 70), "[a]uthoriz[ing] consideration of resentencing for anyone who is currently serving a sentence for any of the offenses listed herein that are now misdemeanors" (id., § 3, subd. (4), p. 70), and "sav[ing] significant state corrections dollars on an annual basis" (id., § 3, subd. (6), p. 70).

Where the property involved is valued at $950 or less, we discern no basis to distinguish the culpability of persons entering an open commercial establishment during regular business hours based upon the form of petty theft that they intended to commit. (See §§ 484, 486-488, 490.2.) Such an offense constitutes the very kind of nonserious, nonviolent crime at which Proposition 47 is aimed.

We conclude that the trial court erred in refusing to designate defendant's second degree burglary conviction (count 8) as misdemeanor shoplifting on the ground that only intent to commit theft by larceny meets the intent element of shoplifting. D. People Not Entitled to Withdraw From Plea Bargain

The People assert that the prosecutor should be allowed to withdraw from the plea bargain with defendant if the trial court reduces defendant's second degree burglary conviction to misdemeanor shoplifting. The California Supreme Court has now held the People are not entitled to have the plea agreement set aside if defendant seeks to have his sentence recalled under Proposition 47. (Harris v. Superior Court (2016) 1 Cal.5th 984, 987, 993.) The court's reasoning in Harris is equally compelling and applicable here. (See id. at pp. 991-993.) The Harris decision binds this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and is dispositive of the People's argument.


The denial of defendant's petition to redesignate his second degree burglary conviction (count 8) as misdemeanor shoplifting under section 1170.18 is reversed. The matter is remanded to the trial court for further proceedings.


ELIA, ACTING P.J. WE CONCUR: /s/_________

Summaries of

People v. Powell

Mar 7, 2017
H043181 (Cal. Ct. App. Mar. 7, 2017)
Case details for

People v. Powell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. LACOREY POWELL, Defendant and…


Date published: Mar 7, 2017


H043181 (Cal. Ct. App. Mar. 7, 2017)