Theft of property worth less than $950 from business establishment’s private office area during business hours is not misdemeanor shoplifting. Colbert was convicted of four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and given a state prison sentence consecutive to a term for robbery. The burglary offenses, committed in 1996 and 1997, involved Colbert and an accomplice’s entry into convenience stores. While one of them distracted the cashier, the other would sneak into the private office of the store and take money. In three of the four burglaries, the amounts taken were less than $950. In 2015, Colbert petitioned for redesignation of the burglary offenses to misdemeanor shoplifting. The trial court denied the petition because the office area of the store was not accessible to the public. Colbert appealed. Held: Affirmed. Proposition 47 reclassified certain theft-related felonies as misdemeanors for eligible defendants. It added misdemeanor shoplifting to the Penal Code (Pen. Code, § 459.5), defined as 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 taken does not exceed $950. A defendant may petition to reduce an enumerated offense to a misdemeanor (Pen. Code, § 1170.18, subd. (f)). In this case, the question is whether separate office areas that are off-limits to the general public are part of the “commercial establishment” within the meaning of the shoplifting statute. Here, the office was separate from the commercial part of the business, was not open to the public, and was not an area where goods were bought and sold. As such, by crossing the threshold into the office area, Colbert and his accomplice exited the “commercial” part of the establishment and entered a discrete area where their thefts could not be considered shoplifting.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042499.PDF