Opinion By: Justice Chin (unanimous decision)
Penal Code section 459.5, subdivision (b) prohibits a prosecutor from charging shoplifting and theft of the same property, even in the alternative. Lopez entered a Walmart and stole items worth $496. He was charged with shoplifting and petty theft but was convicted solely of theft because the jury could not reach a verdict on shoplifting. On appeal, Lopez argued that his conviction must be reversed because he had been charged in violation of section 459.5, subdivision (b), which prohibits charging burglary or theft and shoplifting of the same property. The Court of Appeal affirmed, reasoning that Lopez was not prejudiced by his counsel’s failure to object because section 459.5, subdivision (b) would have permitted the prosecutor to amend the information to charge shoplifting and theft in the alternative, resulting in the same theft conviction. The California Supreme Court granted review. Held: Reversed and remanded. Proposition 47 added the crime of “shoplifting,” which is defined as any entry into a commercial establishment with the intent to commit larceny if the establishment is open during regular business hours and the property taken or intended to be taken is worth $950 or less. (Pen. Code, § 459.5, subd. (a).) A shoplifter, by taking property without consent and with the intent to permanently deprive the owner of the property, also commits theft (Pen. Code, § 484, subd. (a)). Applying the rules of statutory construction, the California Supreme Court concluded that section 459.5, subdivision (b) unambiguously prohibits charging shoplifting and theft of the same property, even in the alternative, and the plain meaning of the directive should control. The Court of Appeal was concerned that this interpretation could lead to the unintended consequence of a defendant who has committed theft escaping criminal liability because he is charged with shoplifting and the jury entertains a reasonable doubt about one of the elements. However, prosecutors may avoid this unintended consequence by charging shoplifting such that petty theft is a lesser included offense.

When a defendant is charged with shoplifting such that petty theft would be a lesser included offense under the accusatory pleading test, the trial court is required to instruct the jury on the lesser included offense if there is substantial evidence from which a jury could conclude that the defendant committed petty theft but not shoplifting. The Attorney General argued that Lopez was not prejudiced by his trial counsel’s failure to object to the charges because the prosecutor could have responded to an objection by amending the information to charge shoplifting such that petty theft would be a lesser included offense under the accusatory pleading test. The California Supreme Court agreed that a prosecutor may charge shoplifting such that petty theft is an uncharged lesser included offense under the accusatory pleading test. A trial court has a sua sponte duty to instruct the jury on any uncharged lesser offense that is necessarily included in a charged offense if there is substantial evidence from which the jury could reasonably conclude that the defendant committed the lesser included offense but not the charged offense. Under the accusatory pleading test, if the facts alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. Consistent with section 459.5, subdivision (b), a prosecutor may charge shoplifting with an allegation that the value of the property taken does not exceed $950, such that petty theft is an uncharged lesser included offense of shoplifting. Because lesser included offenses are not formally charged in separate counts of an accusatory pleading, this practice of instructing on the lesser included offense of theft would not violate section 459.5, subdivision (b)’s prohibition of charging of both shoplifting and theft. [Editor’s Note: In a footnote, the court noted that petty theft is not a necessarily included offense of shoplifting under the elements test because the elements of shoplifting do not require a taking.]

Even when there is probable cause that a defendant committed shoplifting, a prosecutor may charge burglary or theft instead of shoplifting if there is a theory supported by the evidence under which the defendant would be guilty of the charged offense but not shoplifting. The California Supreme Court agreed with the Attorney General’s argument that the general rule regarding charging in section 459.5, subdivision (b) (a prosecutor is prohibited from charging burglary or theft instead of shoplifting when there is probable cause that a defendant has committed shoplifting of the same property) is subject to a few narrow exceptions. First, where there is probable cause to support charges of shoplifting and second degree burglary (Pen. Code, §§ 459, 460) or grand theft (Pen. Code, § 487, subd. (a)), a prosecutor may charge (either initially or in an amendment to the accusatory pleading within the constraints of Penal Code section 1009) the wobblers of second degree burglary or grand theft instead of shoplifting if the prosecutor can articulate a theory supported by the evidence under which the defendant would be guilty of the charged offense but not shoplifting. But in order to return a guilty verdict on these charges, the jury must actually make findings that effectively double as a determination that the defendant did not commit shoplifting (e.g., that the property in question is worth more than $950, that the structure defendant entered was not a commercial establishment, or that the defendant entered the establishment outside of its regular business hours). Second, where there is probable cause to support charges of shoplifting and petty theft, a prosecutor may charge petty theft instead of shoplifting under a theory supported by the evidence that the defendant formed the intent to steal only after entering the commercial establishment. However, the petty theft must be charged as a misdemeanor unless the defendant has a prior conviction specified in Proposition 47. [Editor’s Note: The court did not express a view on the proper resolution of Lopez’s claims and remanded for further proceedings consistent with the opinion in this case.]