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Name: People v. Garner
Case #: B266881
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 08/18/2016

Felony second degree burglary that was based on defendant’s entry into a commercial establishment with the intent to commit theft by false pretenses constitutes misdemeanor shoplifting (Pen. Code, § 459.5). In 2006 Garner entered a grocery store and attempted to purchase merchandise with a forged $100 traveler’s check. She was arrested and subsequently entered a no contest plea to two counts of felony forgery (Pen. Code, §§ 470, subd. (d), 475, subd. (a)) and one count of felony second degree burglary (Pen. Code, § 459). After the passage of Proposition 47, Garner successfully petitioned to reduce her forgery counts to misdemeanors. Her petition to reduce the second degree burglary to shoplifting was denied because she entered the store with the intent to commit theft by false pretenses. Garner appealed. Held: Reversed. In November 2014, Proposition 47 reduced certain drug and theft-related offenses to misdemeanors for qualified defendants. It created a mechanism whereby defendants who are currently serving a felony sentence for an offense that would now be a misdemeanor to request resentencing (Pen. Code, § 1170.18). Proposition 47 also added the new offense of misdemeanor shoplifting (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 items taken does not exceed $950. The phrase “intent to commit larceny” in section 459.5 is similar to the “intent to commit grand or petit larceny” language in the burglary section (Pen. Code, § 459). Penal Code section 490a provides that whenever any law refers to larceny, embezzlement, or stealing, it shall be interpreted as if the word “theft” were substituted therefore. Thus, section 459.5, is intended to include all forms of theft, including theft by false pretenses. [Editor’s Note: The California Supreme Court granted review of this issue in People v. Gonzales (2015) 242 Cal.App.4th 35, review granted 2/17/2016 (S231171/D067544).]

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