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Name: People v. Franske
Case #: C081591
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/19/2016

Theft of wallet and cigarettes from store employee’s purse qualifies as shoplifting for purposes of Proposition 47 relief. Franske entered Dole Transportation shortly before 11:45 a.m. to “inquire about a motor home that was possibly for sale.” While inside, she took cigarettes and a wallet containing $242 from an employee’s purse. Franske pleaded no contest to felony second degree commercial burglary and other offenses. In 2016, the court granted her relief under Proposition 47 and reduced her second degree burglary conviction to misdemeanor shoplifting. The People appealed. Held: Affirmed. Under Penal Code section 495.5, “shoplifting is defined 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 and fifty dollars ($950).” Here, Franske’s offense meets the statutory definition of shoplifting: Dole Transportation was a commercial establishment engaged in the sale of motor homes, Franske entered during regular business hours, and she committed a theft of cigarettes and a wallet containing $242 dollars, which is a form of larceny. Applying principles of statutory construction, the court disagreed with the People’s argument that shoplifting requires the stealing of “openly displayed merchandise.” The express definition of “shoplifting” provided in the statute, and not the “common understanding” of the word, governs. Because Franske’s conduct meets the statutory definition of shoplifting, the trial court properly reclassified her offense. [Editor’s Note: The California Supreme Court is currently reviewing whether a defendant convicted of second degree burglary for entering a bank to cash forged checks is entitled to resentencing under Proposition 47 on the ground that the offense meets the definition of shoplifting under section 495.5. (See People v. Gonzales (2015) 242 Cal.App.4th 35, review granted 2/17/2016 (S231171/D067554); People v. Vargas (2016) 243 Cal.App.4th 1416, review granted 3/30/2016 (S232673/B262129).]

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