Filed 2/27/19
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A153191
v.
DARIUS BROWN,                                       (Napa County
                                                    Super. Ct. No. CR184279)
        Defendant and Appellant.


        Napa law enforcement officers initiated a traffic stop of appellant Darius Brown
(Brown) and found him in possession of clothing stolen from the Ralph Lauren and
Calvin Klein outlet stores. Brown was charged with a single felony violation of Penal
Code1 section 496, subdivision (a) (receiving stolen property in excess of $950 in value).
A jury found Brown guilty as charged.
        Brown appeals, arguing that he should have been charged with shoplifting, not
receiving stolen property. In the alternative, Brown contends that the People improperly
aggregated the values of the items stolen from the two stores, charging him with a single
felony count of receiving stolen property, rather than two misdemeanors. We disagree
with Brown’s first argument but find merit in his second.
                                       BACKGROUND
        Shortly after 4:30 p.m. on August 13, 2017, police, responding to a dispatch
regarding a theft at the Napa Outlets retail shopping center, found Brown in his car and in
possession of various items of clothing stolen from the Calvin Klein and Ralph Lauren
outlet stores. Further investigation determined that the items stolen from the Calvin


        1
            All subsequent statutory references are to the Penal Code unless otherwise noted.

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Klein store would have sold for $754, while the items stolen from the Ralph Lauren store
would have sold for $206.84.
       Brown was arrested and charged by information with one felony count of
receiving stolen property in excess of $950 in value. At trial, the prosecution introduced
video evidence showing Brown and three other individuals entering the Ralph Lauren
store at 3:55 p.m. on August 13, 2017, and leaving shortly thereafter. Testimony from
the supervisor at the Calvin Klein store established that Brown walked into that store with
two other men at 4:15 p.m. The three men walked around the store, looked at store
employees, and left. At about 4:30 p.m., Brown and the two other men returned, and
Brown walked out of the store with several clothing items. At trial, a Calvin Klein
supervisor identified Brown as the person who took the merchandise; her identification
was corroborated by the testimony of a second Calvin Klein store employee who also
witnessed the theft.
       The jury found Brown guilty of felony receiving stolen property in excess of $950
in value (§ 496, subd. (a)).
                                        DISCUSSION
       Brown raises two issues on appeal. First, Brown argues that because he
committed shoplifting within the meaning of section 459.5, the People were precluded by
that statute from charging him with receiving stolen property under section 496,
subdivision (a). In the alternative, Brown argues that even if receiving stolen property
was properly charged, because he took possession of that property in two discrete
transactions, the People were not entitled to aggregate the value of the property in order
to charge a felony offense (receiving stolen property over $950 in value). We reject
Brown’s first argument, but we agree with his second.

       I.     The People Were Not Required to Charge Shoplifting.
       Brown argues that the text of section 459.5, created in 2014 by the passage of the
Safe Neighborhoods and Schools Act (Proposition 47), required the People to charge
shoplifting instead of receiving stolen property. As a question of statutory construction,


                                             2
this issue is reviewed de novo. (Pineda v. Williams-Sonoma Stores, Inc. (2011)
51 Cal.4th 524, 529.)
       Statutory construction begins with reading the words of the statute according to
“their ordinary and usual meaning and . . . []in their statutory context.” (Fluor Corp. v.
Superior Court (2015) 61 Cal.4th 1175, 1198.) “ ‘If the statutory language is
unambiguous, ”we presume the Legislature [or electorate] meant what it said, and the
plain meaning of the statute governs.” ’ ” (People v. Salcido (2008) 166 Cal.App.4th
1303, 1311.)
       Section 459.5, subdivision (a), reads in relevant part: “Notwithstanding [the
definition of burglary in] 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.”
       Careful textual analysis of subdivision (a) demonstrates that in both of its first two
sentences, shoplifting is contrasted with burglary. The first clause—“[n]otwithstanding
Section 459”—alerts the reader that section 459.5, subdivision (a), defining shoplifting,
applies to circumstances that might otherwise be governed by section 459, defining
burglary. Indeed, section 459 provides that “[e]very person who enters any . . . shop . . .
with intent to commit . . . petit larceny . . . is guilty of burglary.” Thus, where a person
enters a shop during regular business hours with the intent to commit petit larceny, that
person’s conduct is described in both the definition of shoplifting in section 459.5 and the
definition of burglary in section 459.
       Building on that context, the first sentence of section 459.5, subdivision (b), then
provides that “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as
shoplifting,” thereby eliminating a prosecutor’s power to charge the same conduct as
burglary instead. The next sentence, providing that “[n]o person who is charged with
shoplifting may also be charged with burglary or theft of the same property,” further
narrows the scope of the prosecutor’s charging discretion. Not only is a prosecutor


                                              3
precluded from charging burglary instead of shoplifting; the prosecutor is also precluded
from charging burglary (or theft) in addition to shoplifting.
       In sum, the meaning of the text is clear. Despite the fact that many cases of
shoplifting also fall within the definition of burglary, if a prosecutor wishes to charge
those cases as either shoplifting or burglary, then he must charge shoplifting and
shoplifting alone. Here, on the other hand, the prosecution charged Brown with neither
shoplifting nor burglary; instead, Brown was charged with receiving stolen property
under section 496. Taking into account both the context and plain language of section
495.5, no issue arises under that statute in the instant case.2
       Brown’s reliance on People v. Gonzales (2018) 2 Cal.5th 858 is misplaced. In that
case, Gonzales pled guilty to one felony count of burglary, based on his entry into a bank
to cash a stolen check in an amount less than $950. (Id. at 862.) Relying on section
459.5, our Supreme Court agreed that the conduct underlying the burglary charge
constituted misdemeanor shoplifting and remanded to the trial court for misdemeanor
resentencing. (Id. at 862, 877.) Gonzales thus involved a case originally charged as a
felony burglary under section 459, the very statute expressly referenced and targeted in
section 459.5. The Gonzales court’s statement that “[a] defendant must be charged only
with shoplifting when the statute [section 459.5] applies” therefore does nothing to
advance Brown’s assertion that section 459.5 extends to defendants convicted under



       2
           This reading is consistent with People v. Martin (2018) 26 Cal.App.5th 825,
which addressed whether a defendant convicted of felony conspiracy to commit petty
theft—based on conduct that unquestionably constituted shoplifting under section
459.5—was eligible for resentencing after the enactment of Proposition 47. Construing
section 459.5, Martin rejected the defendant’s argument: “The statute does not say that a
conspiracy to commit shoplifting shall be charged as simple shoplifting. Without such
language, we cannot construe section 459.5 as prohibiting the charging of a conspiracy.”
(Id. at p. 835.) Brown’s reliance on section 490.4, which became effective on January 1,
2019, fares no better for the same reason. Section 490.4, which creates the new crime of
“organized retail theft,” nowhere prevents the prosecution from charging section 496
when the conduct at issue would also support a section 490.4 charge. (§ 490.4.)


                                               4
section 496, subdivision (a).3 (Id. at 876.)
       Citing People v. Allen (1999) 21 Cal.4th 846, 861, footnote 16, Brown further
argues that section 496 “is a form of theft.” Allen, however, did not so hold. In that case,
the Supreme Court held that under the “plain meaning” of section 496, subdivision (a)
(id. at p. 861), an actual thief could be convicted of violating section 496 regardless of
whether the statute of limitations had run on a theft charge. (Id. at pp. 858–861.) In so
holding, the Supreme Court noted in passing that the Model Penal Code and other states
“defin[e] receiving stolen property as a form of theft,” (id. at p. 861, fn. 16); that
observation, which is plainly dictum, has no bearing on our construction of the California
Penal Code.
       Accordingly, there is no merit to Brown’s argument that section 459.5 precluded
the prosecution from charging him with receipt of stolen property under section 496,
subdivision (a).
       II.    The People Improperly Aggregated the Value of the Stolen Property.
       In the alternative, Brown argues that because the stolen property found in his car
was received in different transactions and from different owners, it was improper to
aggregate the stolen property’s value; thus, Brown argues, he was guilty of multiple
misdemeanor counts of receiving stolen property valued below $950, not a single felony
count of the same crime. As another question of statutory construction, this issue is
reviewed de novo. (Pineda v. Williams-Sonoma Stores, Inc., supra, 51 Cal.4th at p. 529.)
       Assuming a defendant’s knowledge that the property at issue was stolen, section

       3
          In 1992, the Legislature amended section 496, subdivision (a) to provide that “a
principal in the actual theft of the property may be convicted pursuant to this section.”
(Stats. 1992, ch. 1146, § 1.) Then, in 2014, voters passed Proposition 47, which created
section 459.5 (shoplifting) and also amended section 496 to require only misdemeanor
punishment where “the value of the property does not exceed nine hundred fifty dollars
($950).” (§ 496, subd. (a).) If, as Brown suggests, Proposition 47 also barred
prosecution under section 496 of a thief whose conduct in fact constituted shoplifting,
then surely the language of section 496 would have been amended accordingly. Instead,
Proposition 47 left intact the language expressly permitting a prosecutor to charge a
principal in the actual theft with violating section 496.


                                               5
496, subdivision (a) may be violated in either of two ways: (1) by buying or receiving
“any property that has been stolen” or (2) by “conceal[ing], sell[ing], withhold[ing], or
aid[ing] in concealing, selling, or withholding any property from the owner.” (§ 496,
subd. (a).) “[E]ach of the prohibited acts listed in section 496, subdivision ([a]) are
separate and distinct offenses.” (People v. Boyce (1980) 110 Cal.App.3d 726, 734.) In
particular, “[r]eceiving stolen property and concealing stolen property are separate
offenses.” (Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343.)
       Accordingly, the People’s argument that Brown “received the property stolen from
different stores and concealed it in his car when he drove away from the Outlets,”
necessarily entails the proposition that Brown committed two separate offenses, each of
which violated section 496, subdivision (a).
       In light of the distinction between receipt and concealment, two questions arise in
the instant case. First, was it proper for the People to aggregate the value of the stolen
goods with respect to the crime of receiving stolen property? Second, was such
aggregation proper with respect to the crime of concealing stolen property?
       “The crime of receiving stolen property congeals and is completed upon taking
possession of the property with knowledge that it is stolen.” (Williams v. Superior Court,
supra, 81 Cal.App.3d at p. 343.) Here, Brown was found on August 13, 2017, with
property stolen from two separate owners: (1) the Ralph Lauren store he entered at 3:55
p.m., and (2) the Calvin Klein store he entered at 4:15 p.m. and then again at 4:30 p.m.
Brown’s receipt of stolen property from the Ralph Lauren store, therefore, “congeal[ed]
and [was] completed” (ibid.) upon his taking possession of those items. In turn, his
receipt of stolen property from the Calvin Klein store was necessarily a separate




                                               6
transaction.4 It follows that those distinct transactions were separate crimes of receiving
stolen property, and thus ought to have been charged separately.
       Seemingly in passing, the People argue in the alternative that aggregating the
value of the stolen property was justified by the fact that Brown was “concealing more
than $950 in his car when he drove away from the Outlets.” In People v. Mitchell (2008)
164 Cal.App.4th 442, 463, the Court of Appeal addressed a case in which the “defendant
possessed both the [stolen] checks of Billy C. . . . and the [stolen] Discover card of
Barbara C.” Although the stolen items belonged to two different owners, because the
prosecution in Mitchell alleged that the defendant concealed the items “on or about the
same date,” the defendant could only be charged with a single count of concealing stolen
property. (Ibid.) Similarly here, when he was caught with stolen items in his car, Brown
possessed property stolen from two different owners in separate transactions; the
prosecution argues that he was properly charged with a single count of violating section
496, subdivision (a), with the value of the stolen items properly aggregated under
Mitchell.
       However, in Mitchell, the jury was instructed that “[t]o prove that the defendant is
guilty of [receiving stolen property], the People must prove that: [¶] The defendant
received, concealed, or withheld from its owner property that had been stolen.”
(Mitchell, supra, 164 Cal.App.4th at p. 464, italics added.) Furthermore, “[n]o evidence
was presented as to defendant’s buying, receiving, or selling any of the property. Thus,
on each count, defendant's guilt turned on when she concealed or withheld the property
from its owner. In her argument to the jury, the prosecutor explained these counts were
based on defendant’s possession of the property, i.e., her concealing or withholding the

       4
        The People note that Brown was accompanied by two or three other persons
when he entered each store and suggest that Brown might have been “the aggregator who
received the property stolen from different stores,” presumably from his accomplices.
But Brown was identified at trial as the man who stole the merchandise from the Calvin
Klein store. Thus, even if the property stolen from the Ralph Lauren store was received
from certain accomplices in a post-theft transaction, that transaction would have been
separate from the receipt of the Calvin Klein goods, which Brown took directly from the
victim.

                                              7
property, on the indicated days.” (Id. at p. 463.) Accordingly, the People “were not
required to prove when defendant received the property, as that was not their theory of
liability.” (Ibid.)
       In contrast, the jury in the instant case was instructed on receiving stolen property
and on that theory of liability alone. The evidence at trial concerned two thefts in which
Brown was alleged to have taken part; with respect to the Calvin Klein theft, Brown was
identified as the person who took and thereby received the stolen property directly from
the store. Although the prosecutor repeatedly referred to “possession” in her argument to
the jury, she told jurors that receiving stolen property means “to take possession and
control of it” (italics added). She further argued that “we know that [Brown] stole the
property from Calvin Klein.” At no time in her closing did the prosecutor use any form
of the words “withhold” or “conceal.” And, consistent with the prosecution’s single
theory of liability, the verdict form referred only to receiving stolen property, not to
withholding or concealing it.
       Mitchell is therefore inapplicable to the instant case. Here, the People presented
the jury with direct evidence concerning one transaction in which Brown received stolen
property from the Calvin Klein store. The People presented further evidence implying
that a second receipt-transaction took place concerning property stolen from the Ralph
Lauren store. The proposed jury instructions, the prosecution’s closing argument, and the
verdict form referred only to receiving stolen property, not to concealing it. By virtue of
these choices, the People wittingly or unwittingly elected to try Brown on a receipt theory
of liability and placed this matter outside the orbit of the Mitchell case. Gesturing
slightly toward an alternative theory of liability on appeal cannot bring it back.
       In sum, in light of the receipt theory of liability elected by the People at trial,
aggregating the value of the stolen property received by Brown was improper. Because
neither the value of the goods from the Ralph Lauren store nor the value of the goods
from the Calvin Klein store exceeded $950, there was insufficient evidence to support
Brown’s felony conviction under section 496. Brown’s receipt of the stolen property in
question could have been charged as two misdemeanors under section 496, but not a


                                               8
single felony.
                                    DISPOSITION
       The matter is remanded to the trial court, which shall reduce Brown’s section 496,
subdivision (a) conviction from a felony to a misdemeanor and resentence him
accordingly.




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                                 _________________________
                                 BROWN, J.


WE CONCUR:



_________________________
POLLAK, P. J.



_________________________
TUCHER, J.




                            10
People v. Brown (A153191)




                            11
Trial Court: Napa County Superior Court

Trial Judge: Hon. Rodney G. Stone

Counsel:

Paul Couenhoven, Marc McKenna, under appointment by the Court of Appeal, for
Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin, Supervising
Deputy Attorney, Allen R. Crown, Deputy Attorney General for Plaintiff and
Respondent.




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