Filed 9/19/16 P. v. Huberty CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069103

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD255367)

LARA JENE HUBERTY et al.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Robert F.

O'Neill, Judge. Reversed and remanded with directions.

         Paul Kleven, under appointment by the Court of Appeal, for Defendant and

Appellant Lara Jene Huberty.

         Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and

Appellant Jesse Cartwright.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen

Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
       In April 2014, Lara Jene Huberty and Jesse Cartwright entered a no contest plea to

one count of second degree burglary (Pen. Code,1 § 459). They were granted probation.

       Following the passage of Proposition 47 (§ 1170.18, the Safe Neighborhoods and

Schools Act), Huberty and Cartwright filed petitions to reduce their convictions to a

misdemeanor under newly enacted section 459.5. The trial court concluded that

obtaining merchandise from a commercial establishment by means of the use of a stolen

credit card did not qualify as "shoplifting" as defined in section 459.5. The trial court

concluded that shoplifting was restricted to the taking of items of merchandise by means

of common law larceny. Accordingly, the trial court denied the petition.

       On appeal Huberty and Cartwright contend that theft by false pretenses or the

fraudulent use of a credit card qualifies as shoplifting as defined in section 459.5.2

       We will conclude the use of a stolen credit card at a Rite Aid store to obtain $134

in merchandise qualifies as shoplifting as defined in the new statute. Accordingly, we

will reverse the order denying the petitions and remand the case to the trial court with

1      All further statutory references are to the Penal Code unless otherwise specified.

2       Section 459.5 provides: "(a) 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 nine hundred fifty dollars ($950). Any
other entry into a commercial establishment with intent to commit larceny is burglary.
Shoplifting shall be punished as a misdemeanor, except that a person with one or more
prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph
(2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290 may be punished pursuant to subdivision (h) of Section
1170. [¶] (b) Any act of shoplifting as defined in subdivision (a) shall be charged as
shoplifting. No person who is charged with shoplifting may also be charged with
burglary or theft of the same property."
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directions to grant the petitions. In light of our decision on the merits of the petition we

decline to discuss Huberty's remaining arguments.

                                       DISCUSSION

       This case involves entry by Huberty and Cartwright into a Rite Aid store, during

regular business hours. During that visit, the defendants used a stolen credit card to

purchase a small amount of goods. The dispute here surrounds the term "larceny" as used

in section 459.5 and whether it should be read to include all thefts as is required by the

same language in the burglary statute (§ 459)3 as it has been interpreted in light of

section 490a. The People focus solely on the word "shoplifting" and insist,

notwithstanding the similarity of the wording of sections 459 and 459.5, we must

interpret the statute in light of dictionary meanings of the term shoplifting, out of context

from the language of the statute actually enacted. We are satisfied we must interpret the

actual language of the statute in light of the established meaning of its terms. We have



3       Section 459 provides: "Every person who enters any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent,
vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as
defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad
car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach,
as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362
of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code,
vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by
Section 21012 of the Public Utilities Code, or mine or any underground portion thereof,
with intent to commit grand or petit larceny or any felony is guilty of burglary. As used
in this chapter, "inhabited" means currently being used for dwelling purposes, whether
occupied or not. A house, trailer, vessel designed for habitation, or portion of a building
is currently being used for dwelling purposes if, at the time of the burglary, it was not
occupied solely because a natural or other disaster caused the occupants to leave the
premises."
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found nothing in the materials connected with the voters' approval of Proposition 47 that

would lead us to believe the voters intended to distinguish between types of essentially

petty thefts that happen to occur within a building.

       We think it important to bear in mind the theft in this case was only prosecutable

as a possible felony because the defendants entered a store with the intent to commit

theft. We think the better analysis of the new statute is that the voters intended petty

thefts in open businesses not be elevated to felonies by the happenstance they occur

inside the store rather than outside.

       Finally, by way of introductory comment, we are aware our Supreme Court has

granted review in virtually every published or nonpublished opinion construing this

section. We are aware the court will ultimately provide guidance on the proper

interpretation. In the interim it is our task to decide the cases before us to the best of our

ability.

       Appellants contend the trial court's analysis of sections 459.5 and 490a was

flawed. They argue that the intent to commit larceny as used in section 459.5 must be

read consistently with the case law analyzing the same language in section 459. The

People, on the other hand, argue we should focus on the common sense meaning of the

term "shoplifting" and give it a dictionary meaning without reference to sections 459 and

490a. The People also argue that the appellants did not enter the Rite Aid store with the

intent to commit theft by larceny. They contend they entered with the intent to commit

theft with a stolen credit card.



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       The question presented here is whether we restrict our analysis of section 459.5 to

the dictionary meaning of the term shoplifting or whether we should interpret the

statutory language in light of well-established definitions existing prior to the enactment

of section 459.5. We opt for the latter approach.

                                     A. Legal Principles

       Proposition 47 added section 1170.18, which allows "[a] person currently serving

a sentence for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under [Proposition 47 had it] been in effect at the time

of the offense" to "petition for a recall of sentence" and request resentencing. (§ 1170.18,

subd. (a).) A person seeking resentencing under section 1170.18 must show he or she fits

the criteria in subdivision (a). If the person satisfies the criteria the person shall have his

or her sentence recalled and resentenced to a misdemeanor, unless the court, in its

discretion, determines that resentencing the petitioner would pose an unreasonable risk of

danger to public safety. (§ 1170.18, subd. (b); T. W. v. Superior Court (2015) 236

Cal.App.4th 646, 649, fn. 2.)

       Relevant here, Proposition 47 also added a new crime of shoplifting, which 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 nine hundred fifty dollars ($950)."

(§ 459.5, subd. (a).)

       In interpreting section 459.5, appellants urge we must look to section 490a for

guidance. Section 490a provides, "[w]herever any law or statute of this state refers to or

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mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read

and interpreted as if the word 'theft' were substituted therefor."

       Specifically, our issue requires us to find the correct interpretation of the term

"larceny" as used in section 459.5. " 'In interpreting a voter initiative like [Proposition

47], we apply the same principles that govern statutory construction.' [Citation.] " 'The

fundamental purpose of statutory construction is to ascertain the intent of the lawmakers

so as to effectuate the purpose of the law. [Citations.]' " [Citation.] In the case of a

provision adopted by the voters, 'their intent governs.' [Citation.] [¶] 'In determining

such intent, we begin with the language of the statute itself.' [Citation.] We look first to

the words the voters used, giving them their usual and ordinary meaning. " 'If there is no

ambiguity in the language of the statute, then . . . the plain meaning of the language

governs.' " [Citation.] "But when the statutory language is ambiguous, 'the court may

examine the context in which the language appears, adopting the construction that best

harmonizes the statute internally and with related statutes.' " [Citation.] [¶] In

construing a statute, we must also consider " 'the object to be achieved and the evil to be

prevented by the legislation.' " [Citation.] 'When legislation has been judicially

construed and a subsequent statute on a similar subject uses identical or substantially

similar language, the usual presumption is that the Legislature [or the voters] intended the

same construction, unless a contrary intent clearly appears.' " (People v. Rivera (2015)

233 Cal.App.4th 1085, 1099-1100.)




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                                         B. Analysis

       The People contend appellants did not commit shoplifting when they entered a

Rite Aid store with the intent to commit theft by use of a stolen credit card because

shoplifting requires an intent to commit common law larceny. Also, the People argue

section 490a is inapplicable because it does not redefine larceny as any theft. We are not

persuaded by these arguments. Historically, the term "larceny" as used similarly in the

burglary statute has been interpreted to include all thefts, including theft by false

pretenses. (People v. Dingle (1985) 174 Cal.App.3d 21, 30; People v. Nguyen (1995) 40

Cal.App.4th 28, 31; People v. Parson (2008) 44 Cal.4th 332, 353-354.)

       In People v. Williams (2013) 57 Cal.4th 776 (Williams), our high court discussed

whether a man who committed theft by false pretenses and subsequently pushed a

security guard in an attempt to flee could satisfy the "felonious taking" requirement of

robbery. (Id. at pp. 779-780.) One element of robbery, which is not present in any other

type of theft, is the "felonious taking" requirement. The defendant argued that the

"felonious taking" requirement could only be satisfied by the crime of theft by larceny,

and not theft by false pretenses. (Id. at p. 781.) The court, after analyzing the common

law meanings of the different theft offenses, found that larceny is a necessary element of

robbery. (Id. at pp. 786-787.) Thus, Williams held that theft by false pretenses could not

support a robbery conviction, because only theft by larceny could fulfill the "felonious

taking" requirement.

       The analysis in Williams, supra, 57 Cal.4th 776 is distinguishable from our current

issue of whether section 459.5 can be satisfied by theft by false pretenses. This is

                                              7
because the term "larceny" is not actually present in the statute defining robbery (§ 211).

As such, Williams looked at the common law meaning of larceny in order to reach the

conclusion that larceny is a necessary element of robbery. Therefore, the court was not

analyzing the statutory interpretation of the term "larceny," but was analyzing the

common law meanings and relations of the different theft crimes.

       Conversely, in People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), we

discussed whether a defendant could be convicted of burglary for entering the premises

of another with the intent to commit theft by false pretenses. Nguyen held that the term

"larceny" as used in the burglary statute included theft by false pretenses. In reaching our

conclusion, we noted that section 490a shows "the Legislature has indicated a clear intent

that the term 'larceny' as used in the burglary statute should be read to include all thefts,

including 'petit' theft by false pretenses." (Id. at p. 31.) The Nguyen holding is more on

point with the issue here, because, unlike Williams, supra, 57 Cal.4th 776, we analyzed

the interpretation of the term "larceny" as used in a statute.

       Additionally, the People argue, in enacting section 459.5, the voters intended to

restrict its application to stealing goods or merchandise openly displayed in retail stores.

The People assert that "shoplifting" has long and commonly been understood to

encompass only the theft of openly displayed merchandise from commercial

establishments. As such, the People contend the voters' reasonable belief was that the

crime of "shoplifting" referred only to the common understanding of that crime.

However, in viewing the plain text of the statute, we find nothing to support that

contention. Had the voters intended for "shoplifting" to be confined to that limited

                                               8
meaning, that intention could have easily been expressed in the text of the statute.

Instead, the statute was worded substantially similar to the burglary statute (§ 459), which

has been judicially interpreted to encompass all thefts. As previously noted, "[w]hen

legislation has been judicially construed and a subsequent statute on a similar subject

uses identical or substantially similar language, the usual presumption is that the

Legislature [or the voters] intended the same construction, unless a contrary intent clearly

appears." (Rivera, supra, 233 Cal.App.4th at p. 1100.) We find no indication that a

distinction was intended to be made between sections 459 and 459.5 in regard to the

interpretation of the term "larceny."

       The People urge us to apply the definition of "shoplifting" as used in dictionaries

and as discussed in Wharton's treatise on criminal law (3 Wharton's Criminal Law (15th

ed. 2015) § 343). "Shoplifting" is simply the name of the new offense, not its definition.

We decline to take that approach. The statute does not contain any definition of

shoplifting other than setting forth the elements of the offense in the specific language of

section 459.5. We decline to speculate whether the voters had to resort to dictionaries in

formulating their views on the statute. We find it even more unlikely that they were

familiar with Wharton's criminal law treatise. In short we remain satisfied that analysis

of the language of the statute, in light of the case law defining the terms, is the best

indicator of the voters' intent.

       Our interpretation is consistent with the voters' overall intent in passing

Proposition 47. Proposition 47 was intended to "[r]equire misdemeanors instead of

felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the

                                               9
defendant has prior convictions for specified violent or serious crimes." (Ballot Pamp.,

Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, p. 70.) Petty theft by false pretenses is

precisely the type of nonserious, nonviolent crime Proposition 47 was aimed towards

affecting. For example, Proposition 47 also made the crimes of forgery and drafting

checks without sufficient funds of less than $950 misdemeanors. (§ 473, subd. (b);

§ 476a.) Moreover, theft by false pretenses is less likely to involve violence than a

situation where a person has the intention to steal openly displayed merchandise from a

store. To provide misdemeanors for common law larceny, but not for theft by false

pretenses, would contradict the voters' general intent of requiring misdemeanor treatment

for nonserious, minor, nonviolent theft crimes.

       In considering section 490a, we find that it requires us to have the word "larceny"

read as "theft" in section 459.5. As such, the "intention to commit larceny" requirement

of section 459.5 can be satisfied by the broader sense of an intent to commit theft. Thus,

an intent to commit theft by false pretenses would satisfy that element. Not only is this

consistent with prior case law regarding the interpretation of the term "larceny" as used in

section 459, but it is also consistent with the voters' intent in passing Proposition 47.

Lastly, interpreting the term "larceny" differently in section 459.5 than we would in

section 459 would cause the interpretations of the two related statutes to be inconsistent

and would ignore the mandate of section 490a.




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                                      DISPOSITION

       The order denying Huberty's and Cartwright's petitions to reduce the burglary

count to shoplifting is reversed and remanded, with directions to grant the petitions.




                                                                            HUFFMAN, J.

WE CONCUR:


             BENKE, Acting P. J.


                      HALLER, J.




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