Defendant’s entry into a bank to cash forged checks in amounts less than $950, i.e., to commit theft by false pretenses, was misdemeanor “shoplifting” under newly enacted Penal Code section 459.5. In 2008, Root was convicted of multiple theft, forgery, and burglary offenses. He filed a Proposition 47 petition in 2015 seeking reduction of his felony convictions to misdemeanors. The trial court granted the petition in part but denied resentencing as to seven burglary convictions, finding they were not “shoplifting” under the newly enacted statute (Pen. Code, § 459.5). Root appealed. Held: Reversed. Proposition 47 reduced certain drug and theft offenses to misdemeanors. It added Penal Code section 1170.18, which provides that a qualified defendant may petition for reduction of certain felonies to misdemeanors. It also added Penal Code section 459.5, a new offense of shoplifting, which is defined as entering a commercial establishment while the business is open to the public, with the intent to commit larceny, where the value of the property taken or intended to be taken does not exceed $950. The term “larceny” as used in the burglary statutes has been interpreted to include all thefts, including theft by false pretenses. In People v. Vargas (2016) 243 Cal.App.4th 1416, the Second District held that theft by false pretenses satisfies the “intent to commit larceny” requirement of section 459.5 because this phrase mirrors the intent element in the general burglary statute (Pen. Code, § 459), which includes theft by false pretenses.

The new shoplifting statute (Pen. Code, § 459.5), is not limited to the theft of merchandise openly displayed for sale in retail stores. The prosecution argued that, in enacting Proposition 47, the voters did not intend the new shoplifting statute to apply outside the context of goods and merchandise openly displayed for sale in retail stores. However, such a restriction is not evident from the plain language of the statute, which is worded substantially similar to the burglary statute (Pen. Code, § 459), the intent for which encompasses all thefts. This finding is consistent with the voters’ intent in passing Proposition 47, which was to require misdemeanor punishment for certain nonserious, nonviolent theft and drug offenses.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068235.PDF