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Name: People v. Franske
Case #: C081591
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/01/2018

The theft of items from an employee’s purse in a commercial establishment while open during regular business hours may qualify as shoplifting under Penal Code section 459.5. In 2010, Franske went into Dole Transportation to inquire about a motor home for sale and an employee left the main lobby to contact the owner. When the employee returned she found Franske had taken items from her purse, which had been in her office. Franske pleaded no contest to second degree burglary (in addition to other offenses committed earlier), and her sentence was enhanced under Penal Code section 12022.1, because she was out of custody on bail for another offense when she committed the burglary. The trial court later granted Franske’s Proposition 47 petition in part and reduced the burglary to shoplifting, but denied her request to strike the on-bail enhancement. Franske and the People both appealed. Held: Affirmed. Proposition 47 added section 459.5, subdivision (a), which defines shoplifting “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).” Based on the plain language of the statute, Franske’s conduct fits within the definition of misdemeanor shoplifting. The Court of Appeal disagreed with the People’s argument that “shoplifting” is meant to cover only the stealing of openly displayed merchandise. [Editor’s Note: In an unpublished part of the opinion, the Court of Appeal concluded that the trial court properly denied Franske’s request to strike the on-bail enhancement because her conviction was final when Proposition 47 passed. (See People v. Buycks (2018) 5 Cal.5th 857.)]

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