Entering a bank to cash a forged check qualifies as shoplifting under Proposition 47 (Pen. Code, §§ 459.5, 1170.18). Gonzales pleaded guilty to second degree burglary (Pen. Code, § 459) for entering a bank and cashing two $125 forged checks. After Proposition 47 passed he filed a petition to reduce the felony second degree burglary conviction to misdemeanor shoplifting. The trial court denied his petition and the Court of Appeal affirmed. The Supreme Court granted review. Held: Reversed and remanded. Proposition 47 turned a number of drug and theft offenses from wobblers or felonies into misdemeanors and, as relevant here, created the new offense of misdemeanor shoplifting: “Notwithstanding Section 459, 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 [$950].” Eligible individuals can petition to have old felony convictions reduced to misdemeanors if their offense would have been a misdemeanor had Proposition 47 been in effect at the time of the offense. (Pen. Code, § 1170.18.) Gonzales’s felony second degree burglary conviction would have been a misdemeanor had Proposition 47 been in effect because he entered a commercial establishment (a bank) to commit larceny during normal business hours where the property taken was worth $950 or less. While larceny traditionally had a limited meaning distinguishable from false pretenses (which is what cashing a forged check would be), the Legislature eliminated that distinction in 1927, by consolidating all the offenses into a general theft offense and stating that “theft” and “larceny” must be used interchangeably. (See Pen. Code, § 490a.) Cashing a forged check is theft is larceny.

Even if defendant entered the bank with an intent to commit identity theft (Pen. Code, 530.5, subd. (a)), he could only be charged with shoplifting under section 459.5, subdivision (b). The Attorney General argued that, even if the defendant engaged in shoplifting, he was still not eligible for resentencing under Proposition 47 because he also entered the bank intending to commit identity theft, which would constitute felony burglary. The Supreme Court disagreed. Section 459.5, subdivision (b) requires that any act of shoplifting “shall be charged as shoplifting” and no one charged with shoplifting “may also be charged with burglary or theft of the same property.” The court concluded that “the shoplifting statute would have precluded a burglary charge based on an entry with intent to commit identity theft here because the conduct underlying such a charge would have been the same as that involved in the shoplifting, namely, the cashing of the same stolen check to obtain less than $950.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S231171.PDF