Defendant’s felony second degree burglary conviction was not subject to reduction under Proposition 47 because his conduct did not constitute “shoplifting” under new Penal Code section 459.5. In January 2012, Chen was charged with perjury in his application for a driver’s license (Pen. Code, § 118, subd. (a); count 1) and second degree commercial burglary (Pen. Code, § 459; count 2). The burglary charge alleged Chen entered the Department of Motor Vehicles with the intent to commit larceny and any felony. Chen pled no contest to the burglary. After Proposition 47 passed in November 2014, Chen petitioned for reduction of his burglary conviction to a misdemeanor. The trial court granted his petition. The prosecution appealed. Held: Reversed. Under Penal Code section 459 a person who enters a building with the intent to commit grand or petit larceny or any felony is guilty of burglary. Section 460 provides that entry into a commercial establishment with the requisite intent is second degree burglary. Proposition 47 reduced a number of drug and theft offenses to misdemeanors, but made no changes to sections 459 and 460, except to the extent the new shoplifting section (Pen. Code, § 459.5) applies. “Shoplifting” is defined as the entry into a commercial establishment with the intent to commit larceny while that establishment is open during regular business hours, where the property taken or intended to be taken does not exceed $950. Chen entered the DMV with the intent to commit the felony of perjury, and this conduct does not constitute shoplifting.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B264693.PDF