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Name: People v. Gonzales
Case #: D067554
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/12/2015
Subsequent History: Review granted 2/17/2016: S231171

Second degree commercial burglary conviction based on cashing forged checks in a bank is not eligible for reduction to misdemeanor shoplifting under Proposition 47. In December 2013, Gonzales took two checks from his grandma, made each payable to himself in the amount of $125, signed his grandma’s name to the checks, and cashed the checks at a bank. He pleaded guilty to second degree commercial burglary (Pen. Code, § 459). After Proposition 47 passed, Gonzales petitioned to reduce his second degree burglary conviction to misdemeanor shoplifting. (See Pen. Code, §§ 1170.18, 459.5 [added by Proposition 47]). The trial court denied the petition, reasoning that Gonzales’s offense did not qualify as shoplifting because there was no larceny. Gonzales appealed. Held: Affirmed. Section 459.5 defines the offense of 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” $950. Larceny requires a taking without the property owner’s consent. (People v. Williams (2013) 57 Cal.4th 776, 788.) Here, Gonzales made false representations to the bank that he was cashing valid checks. Relying on these representations, the bank consented to transferring possession of the $250 to Gonzales. As a result, there was no larceny and Gonzales’s offense did meet the statutory definition of shoplifting, which requires an “intent to commit larceny.” The trial court properly refused to reduce his second degree commercial burglary conviction to misdemeanor shoplifting.

Proposition 47 does not permit resentencing of section 459 offenses. Gonzales also argued that his conviction under section 459 should be reduced to a misdemeanor because Proposition 47 permits resentencing for other theft offenses involving property under the threshold of $950. The Court of Appeal disagreed. Although Proposition 47 reduced a number of theft offenses to misdemeanors (see Pen. Code, §§ 459.5 [shoplifting], 473 [forgery], 476a [issuing checks without sufficient funds], 490.2 [petty theft], 496 [receiving stolen property]), section 459 was not included. One rule of statutory construction, “unius est exclusion alterius,” provides that where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed in the absence of a clear legislative intent to the contrary. The failure to include section 459 among the offenses that qualify for misdemeanor sentencing if the property in question had a value of less than $950 demonstrates an intent to exclude it from Proposition 47’s resentencing provisions.