Second degree burglary based on entry of check cashing store with intent to cash forged check for $950 or less is a misdemeanor under Proposition 47. Vargas entered a check cashing store and attempted to cash a forged personal check in the amount of $148. She pleaded guilty to second degree burglary and was given a split sentence in county jail. After the passage of Proposition 47, she petitioned for resentencing, arguing that her offense came within the newly enacted offense of shoplifting (Pen. Code, § 459.5). The trial court denied the petition, finding Vargas’ conduct did not constitute “shoplifting” because it included the intent to commit fraud in addition to the larceny. Vargas appealed. Held: Reversed. Proposition 47 reduced certain theft and drug offenses to misdemeanors and created a procedure by which qualified defendants who are currently serving a sentence for an eligible offense may seek reduction of their felony offense (Pen. Code, § 1170.18). “As enacted by Proposition 47, section 459.5 redefines certain second degree burglaries as ‘shoplifting’ if the value of the property involved is less than $950.” Shoplifting is defined as entering a commercial establishment while that business is open to the public with the intent to commit larceny, where the value of the property taken or attempted to be taken is not more than $950. Section 459.5 has its roots in burglary, which may be satisfied by the intent to commit theft by false pretenses. “[B]ecause voters adopted the phrase ‘intent to commit larceny’ in section 459.5, which mirrors the intent element in the general burglary statute (§ 459), and that phrase includes theft by false pretenses,” section 459.5 similarly includes theft by false pretenses. The court disagreed with the contrary holding in People v. Gonzales (2015) 242 Cal.App.4th 35.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B262129.PDF