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Name: In re E.P.
Case #: G054375
District 4 DCA
Division: 3
Opinion Date: 05/24/2019

Juvenile court erred in sustaining second degree burglary allegation when conduct (theft of items from locker room at public hockey facility) fell under the definition of shoplifting. A juvenile court found minor E.P. committed burglary (Pen. Code, § 460, subd. (b)) and receiving stolen property (Pen. Code, § 496) among other allegations. E.P. admitted stealing items from bags left by players in a locker room at a public ice hockey facility. E.P. moved to dismiss the burglary charge, arguing that the prosecution failed to prove he had not committed shoplifting (Pen. Code, § 459.5). In denying this motion, the juvenile court concluded the ice rink’s locker rooms were not part of the commercial establishment and the crime of shoplifting covered thefts from the business, not from private citizens. After the Court of Appeal’s initial opinion, the California Supreme Court transferred the case to the Court of Appeal for reconsideration in light of People v. Colbert (2019) 6 Cal.5th 596. Held: Reversed in part. Proposition 47 created a new misdemeanor crime of shoplifting, which is defined as entering a commercial establishment with intent to steal while that establishment is open during regular business hours, where the value of the property taken does not exceed $950. (Pen. Code, § 459.5, subd. (a).) No person who is charged with shoplifting may also be charged with burglary or theft of the same property. The prosecution has the burden of proving that a defendant did not commit shoplifting. Section 459.5 does not distinguish between property belonging to a commercial establishment and property belonging to private citizens. Thus, the juvenile court’s ruling erroneously added an element not included within the statutory definition of shoplifting. Further, although nonpublic areas are not part of a commercial establishment for the purposes of the shoplifting statute, the ice rink locker rooms were part of the commercial establishment, as they were accessible by the public, unlocked, and contained no signs prohibiting entry.

The receipt of stolen property allegations were affirmed because a reversal of the juvenile court’s finding on the burglary count is not a finding that the minor committed shoplifting. E.P. argued on appeal that the receipt of stolen property findings should also be reversed because he cannot be charged or convicted of both shoplifting and receiving the same property. The Attorney General conceded that if E.P.’s offense was shoplifting, he cannot be prosecuted for receiving stolen property. However, E.P. was not charged with shoplifting, and the juvenile court did not find that he committed shoplifting. This court’s reversal of the court’s finding on the burglary count is not a finding that E.P. actually committed shoplifting. Therefore, the court’s findings for each of the receiving stolen property allegations were affirmed.