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Name: People v. Abarca
Case #: E063687
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 08/12/2016

Banks are “commercial establishments” within the meaning of the new shoplifting statute. Abarca pleaded guilty to second degree burglary (Pen. Code, § 459) based on his entry into a bank to cash a forged $300 check. After Proposition 47 passed in November 2014, Abarca petitioned to reduce his felony to misdemeanor shoplifting (Pen. Code, § 459.5, subd. (a)). The prosecution opposed the motion, claiming a bank was not a “commercial establishment” under the shoplifting statute. The trial court granted the petition. The prosecution appealed. Held: Affirmed. Proposition 47 reduced some theft and drug felonies to misdemeanors for eligible defendants. It created a resentencing procedure whereby defendants may petition to have qualified offenses reduced to misdemeanors (Pen. Code, § 1170.18). It also added the new offense of “shoplifting” to the Penal Code (§ 459.5), which is defined as entering a commercial establishment with the intent to commit larceny while the establishment is open during regular business hours, where the value of the property taken does not exceed $950. The definition of “establishment” is “an institution or place of business.” “Commerce” is “the exchange of goods and services.” Banks satisfy this definition. This interpretation effectuates the purpose of Proposition 47, which is to reclassify certain nonviolent theft and drug offenses to misdemeanors and thereby reduce the number of incarcerated defendants.

The prosecution forfeited the claim that petitioner entered the bank to commit identity theft because it failed to assert this claim in the trial court. On appeal the prosecution urged reversal because identity theft, not larceny or forgery, was the predicate act for Abarca’s burglary conviction. However, the prosecution did not previously raise identity theft in relation to the original conviction, and did not mention it at the plea hearing or at the resentencing proceedings. Any such claim was forfeited.

The full opinion is on the court’s website here: