        IN THE SUPREME COURT OF
               CALIFORNIA

                           PEOPLE,
                  Plaintiff and Respondent,
                              v.
                     ANTHONY LOPEZ,
                  Defendant and Appellant.

                           S250829

                   Fifth Appellate District
                          F074581

                Tulare County Superior Court
                        VCF314447



                        April 30, 2020

Justice Chin authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and Groban concurred.
                       PEOPLE v. LOPEZ
                            S250829


                Opinion of the Court by Chin, J.


       Defendant Anthony Lopez entered a Walmart and stole
items worth $496.37. He was charged with shoplifting and
theft, but was convicted solely of theft because the jury could not
reach a verdict on shoplifting. On appeal, defendant raised a
claim that his conviction must be reversed because he had been
charged in violation of Penal Code section 459.5, subdivision (b)1
(section 459.5(b)), which provides: “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.” (Italics added.) The
Court of Appeal recognized that defendant had been improperly
charged with shoplifting and theft of the same property.
Nevertheless, it affirmed the conviction, reasoning that
defendant was not prejudiced by his trial counsel’s failure to
object to the charges, because section 459.5(b) would have
permitted the prosecutor to respond to any such objection by
amending the information to charge shoplifting and theft in the
alternative, which would have resulted in the same theft
conviction. We granted review to determine the scope of section
459.5(b)’s limits on prosecutorial charging discretion.
      Before this court, the parties agree that section 459.5(b)
precludes charging shoplifting and theft of the same property,

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


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


even in the alternative. But they disagree whether section
459.5(b) would have permitted the prosecutor to amend the
information (1) to charge shoplifting such that petty theft would
have been a lesser included offense under the accusatory
pleading test or (2) to charge solely petty theft.
      We hold that section 459.5(b) prohibits charging
shoplifting and theft of the same property, even in the
alternative. But a prosecutor may charge shoplifting with an
allegation stating that “the value of the property taken does not
exceed $950,” such that petty theft is an uncharged lesser
included offense under the accusatory pleading test. Consistent
with the principles governing instructions on lesser included
offenses, if shoplifting is so charged, and if there is substantial
evidence from which a jury could conclude that the defendant
committed petty theft but not shoplifting, the trial court is
required to instruct the jury on petty theft, and the jury is
required to return an acquittal on shoplifting before it may
return a verdict on petty theft.
      Additionally, we hold that, as a general rule, section
459.5(b) prohibits a prosecutor from charging theft when there
is probable cause that a defendant has committed shoplifting of
the same property. As an exception to this general rule,
however, even when there is probable cause that a defendant
has committed shoplifting, a prosecutor may charge theft
instead of shoplifting if the prosecutor can articulate a theory
supported by the evidence under which the defendant would be
guilty of theft but not shoplifting.
      Having so interpreted section 459.5(b), we reverse the
judgment of the Court of Appeal and remand for further
proceedings consistent with our opinion.



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                        PEOPLE v. LOPEZ
                  Opinion of the Court by Chin, J.


           I. FACTUAL AND PROCEDURAL HISTORY
      On February 12, 2015, defendant Anthony Lopez and a
female companion were inside a Walmart store when they
attracted the attention of a Walmart asset protection officer.
After noticing defendant select a home stereo unit, the asset
protection officer followed defendant throughout the store and
watched as defendant placed items into an empty Walmart
plastic bag within his shopping cart. When the couple reached
the register, defendant’s female companion paid for the items
that she had placed in the cart, but defendant pushed the cart
towards the exit without paying for his items. As soon as the
couple exited the store, the asset protection officer confronted
defendant, who admitted that he had not paid for the
merchandise.      The asset protection officer identified the
unpurchased items—a home stereo unit, a candle wax warming
kit, a flashlight, and a TV wall mount—and determined their
combined value to be $496.37.
      Later, defendant told the police that he had gone to
Walmart with $5 to purchase a few items, but with no intention
of stealing anything. According to defendant, once he was inside
the store, he decided he needed money, so he placed some items
into his shopping cart and left without paying for them.
      Initially, the prosecutor filed a complaint charging
defendant with felony shoplifting under section 459.5,
subdivision (a) (section 459.5(a)). Ultimately, the prosecutor
filed an amended information charging defendant with felony
shoplifting under section 459.5(a) and felony petty theft with
priors under sections 484, subdivision (a), and 666. For
purposes of both felony charges, the amended information
alleged that defendant had suffered a prior conviction requiring



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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


him to register as a sex offender under section 290. (See §§
459.5(a); 666, subds. (a), (b).) For purposes of the petty theft
with priors charge only, the information also alleged that
defendant had suffered multiple prior theft convictions and
served multiple prior prison terms.2 (See § 666, subd. (a).)
Defendant did not demur to the amended information or
otherwise object to the charges.
      On August 29 to 30, 2016, the court held a bifurcated trial.
After requesting a read-back of testimony and asking three
questions, the jury submitted a note to the court stating that it
was “split on the decision for shoplifting, based on intent.”
Ultimately, the jury found defendant guilty of petty theft, but it
could not reach a verdict on shoplifting. The court declared a
mistrial on the shoplifting charge and, upon the prosecution’s
motion, dismissed it. In a bench trial, the court found true all
the remaining allegations.3
       On appeal, defendant raised a claim that his conviction
must be reversed because section 459.5(b) prohibits a person
who is “charged with shoplifting” from “also be[ing] charged
with burglary or theft of the same property.” Anticipating that
this claim may have been forfeited, defendant also raised a claim
that his trial counsel had rendered constitutionally ineffective
assistance by failing to demur to the amended information or
otherwise object to the charges.


2
      The amended information included several additional
allegations that are not relevant to the issues before us.
3
      For purposes of the petty theft with priors charge, the
parties had stipulated to the truth of the allegation that
defendant had suffered a qualifying prior theft conviction. (See
§ 666, subd. (a).)


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                          PEOPLE v. LOPEZ
                    Opinion of the Court by Chin, J.


       In response, the Attorney General conceded that the
prosecutor had violated section 459.5(b) by charging shoplifting
and theft in the conjunctive but contended that defendant’s
improper charging claim had been forfeited. Additionally, the
Attorney General argued that defendant was not prejudiced by
his trial counsel’s failure to object to the charges, because section
459.5(b) would have permitted the prosecution to respond to
such an objection by amending the information to charge
shoplifting and theft of the same property in the alternative,
which would have resulted in the same theft conviction.
      The Court of Appeal agreed with the Attorney General and
affirmed the conviction. We granted defendant’s petition for
review and ordered briefing on several questions related to
section 459.5(b).
                          II. DISCUSSION
      “Proposition 47 has generated many interpretive issues
for this court.” (People v. Valenzuela (2019) 7 Cal.5th 415, 423
(Valenzuela).) This case is no exception.
      In the 2014 general election, Californians passed this
voter initiative to “ ‘[r]equire misdemeanors instead of felonies
for nonserious, nonviolent crimes like petty theft and drug
possession, unless the defendant has prior convictions for
specified violent or serious crimes.’ ” (People v. Gonzales (2017)
2 Cal.5th 858, 870 (Gonzales), quoting Voter Information Guide,
Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 3, subd. (3), p. 70
(Voter Information Guide).) As is relevant here, the measure
added section 459.5 to the Penal Code, “carving out” the new
offense of “ ‘shoplifting’ ” from the preexisting offense of
burglary. (People v. Martinez (2018) 4 Cal.5th 647, 651.) Before
Proposition 47, any entry into a commercial establishment with


                                   5
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


the intent to commit larceny was second degree burglary.
(§§ 459 [definition of burglary], 460 [degrees of burglary].) After
Proposition 47, this conduct is shoplifting if the establishment
is open during regular business hours and the property taken or
intended to be taken is worth $950 or less, but “[a]ny other entry
into a commercial establishment with intent to commit larceny”
continues to be second degree burglary. (§ 459.5(a), italics
added.) While shoplifting “shall be punished as a misdemeanor”
unless the defendant has a prior conviction as specified in
section 459.5(a), second degree burglary remains an alternative
felony-misdemeanor or wobbler. (§§ 459.5(a) [punishment for
shoplifting], 461 [punishment for burglary]; see People v. Colbert
(2019) 6 Cal.5th 596, 599 (Colbert).)
      Of course, if a person enters a commercial establishment
with the intent to commit theft and carries out his or her
intent—by taking another’s property without consent and with
the intent to permanently deprive the owner of the property—
that person also commits theft.4 (§ 484, subd. (a).) Therefore, a

4
      After Proposition 47, this conduct is petty theft if the
property taken is worth $950 or less. (§§ 486–488, 490.2.)
Under section 490.2, petty theft is punishable as misdemeanor
petty theft unless the defendant has a prior conviction as
specified in that section. But under section 666, petty theft is
punishable as wobbler petty theft with priors if the defendant
has a qualifying prior theft conviction, has served a term in a
penal institution as a result of that theft conviction, and has
another qualifying prior conviction as specified in that section.
Proposition 47 eliminated the former wobbler of petty theft with
three theft priors, as defined by former section 666, subdivision
(a), and amended the former wobbler of petty theft with one
theft prior and one additional prior, as previously defined by
former section 666, subdivision (b) and as currently defined by



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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


single course of conduct may constitute both shoplifting and
theft or both burglary and theft.
      Section 459.5(b) limits a prosecutor’s charging discretion
in this context. It provides: “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.” We granted review to determine
whether these directives permit a prosecutor to charge
shoplifting and theft of the same property in the alternative; to
charge shoplifting such that petty theft would be a lesser
included offense under the accusatory pleading test; or to charge
theft instead of shoplifting when there is evidence that the
defendant may have committed shoplifting.
    A. Charging Shoplifting and Theft of the Same
Property
            1. Background
      On appeal, both the Attorney General and the Court of
Appeal acknowledged that the plain meaning of section
459.5(b)’s second directive—“[n]o person who is charged with
shoplifting may also be charged with burglary or theft of the
same property”—prohibits charging shoplifting and theft, even
in the alternative. (See People v. Lopez (2018) 26 Cal.App.5th
382, 386–392 (Lopez).) But the Attorney General argued, and
the court agreed, that a literal reading of this language would
lead to absurd results and contradict voters’ intent in cases
where it is unclear whether defendant formed the intent to



section 666, subdivisions (a) and (b). (Voter Information Guide,
text of Prop. 47, § 10, p. 72.) For ease of reference, we refer to
the current wobbler as “petty theft with priors.”


                                  7
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


commit theft before or after he entered the commercial
establishment. In these cases, if the prosecution charges theft,
an “act of shoplifting” could be charged as theft—apparently in
violation of section 459.5(b)’s first directive that “[a]ny act of
shoplifting . . . shall be charged as shoplifting.” But if the
prosecution charges shoplifting, a defendant who has committed
theft could escape criminal liability simply because the jury
entertains a reasonable doubt that he possessed the intent to
commit theft upon entry—an “absurd” result in the view of the
Attorney General and the Court of Appeal. (Lopez, at p. 392.)
       Using the facts of this case, the Attorney General
illustrated these points: “[The prosecutor] could have charged
appellant [Lopez] with petty theft. By the plain meaning of
section 459.5, she could not have also charged shoplifting, even
as an alternative charge—in choosing to charge appellant with
petty theft, she would be precluded from charging shoplifting.
However, appellant could then simply argue that his intent to
commit theft was formed prior to his entry into Walmart. As
the prosecutor pointed out, he only had five dollars at the time
and also brought an empty bag to conceal merchandise. If the
jury found this to be true, then appellant’s conduct would
constitute shoplifting and the prosecutor will necessarily have
violated section 459.5’s requirement that conduct constituting
shoplifting be charged as shoplifting. [¶] Alternatively, the
prosecutor could have charged appellant with shoplifting.
Under the plain meaning of section 459.5, the prosecutor could
not also charge petty theft, even as an alternative charge. But
appellant could then argue that his intent to commit theft was
formed after his entry into Walmart. And if the jury found this
to be true, . . . then the prosecutor has failed to prove the
shoplifting charge.     Because she was not permitted to


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


alternatively charge petty theft (or any other theft offense),
appellant faces no criminal consequences even though it may be
apparent that he has committed a crime.”
      In sum, the Attorney General took the position that the
section 459.5(b) “should be interpreted to permit alternative
charging of shoplifting and other theft-related offenses while
continuing to prevent multiple convictions based on theft of the
same property.” The Court of Appeal agreed, holding that
section 459.5(b) does not prohibit charging shoplifting and theft
of the same property in the alternative “when the element of
intent upon entering the commercial establishment is absent or
in question.” (Lopez, supra, 26 Cal.App.5th at p. 390.)
           2. Discussion
      Despite prevailing below, the Attorney General adopts a
different position before this court. He now agrees with
defendant that section 459.5(b)’s second directive “prohibits a
prosecutor from charging a defendant with both shoplifting and
petty theft of the same property, even in the alternative.”
      Before interpreting section 459.5(b), we briefly review the
canons that guide our process. In construing a voter initiative,
“ ‘[W]e apply the same principles that govern statutory
construction.’ [Citation.] As a law adopted by the voters, ‘their
intent governs.’ [Citation.] In ascertaining that intent, ‘we turn
first to the language of the statute, giving the words their
ordinary meaning.’ [Citation.] This language is interpreted in
the context of the statute as a whole, as well as the overall
statutory scheme. [Citation.]” (Valenzuela, supra, 7 Cal.5th at
p. 423.)
     We begin with the observation that section 459.5(b)’s
second directive—“[n]o person who is charged with shoplifting


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


may also be charged with burglary or theft of the same
property”—must be read together with its first directive—“[a]ny
act of shoplifting . . . shall be charged as shoplifting.” Together,
these directives must be understood in light of section 459.5(a)’s
provision that “[s]hoplifting shall be punished as a
misdemeanor” unless the defendant has suffered a specified
prior conviction, and in light of Proposition 47’s purpose to
“ ‘[r]equire misdemeanors instead of felonies for nonserious,
nonviolent crimes like petty theft and drug possession, unless
the defendant has prior convictions for specified violent or
serious crimes.’ ” (Gonzales, supra, 2 Cal.5th at p. 870, quoting
Voter Information Guide, text of Prop. 47, § 3, subd. (3), p. 70;
see Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [“One of
Proposition 47’s primary purposes is to reduce the number of
nonviolent offenders in state prisons, thereby saving money and
focusing prison on offenders considered more serious under the
terms of the initiative.”].)
      When section 459.5(b) is read in this context, it appears
that Proposition 47’s voters primarily intended the subdivision’s
charging directives to ensure that defendants who commit an
“act of shoplifting”—but who have not suffered a specified prior
conviction—are charged with and convicted of a single
misdemeanor offense. In other words, the voters made a
determination that the conduct that they defined as shoplifting
deserves a single misdemeanor conviction, and they wanted to
prevent prosecutors from circumventing this determination by




                                 10
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


charging and convicting such conduct as felony burglary, felony
theft, both shoplifting and theft, or both burglary and theft.5
      Although we are not bound by their interpretation of the
law, we agree with the parties that section 459.5(b)’s second
directive unambiguously prohibits charging shoplifting and
theft of the same property, even in the alternative, and that the
plain meaning of the directive should control. (See Desny v.
Wilder (1956) 46 Cal.2d 715, 729 [court not bound to accept
parties’ concessions on issues of law]; Bradley v. Clark (1901)
133 Cal. 196, 209–210 [same].) We recognize the Court of
Appeal’s concern that this interpretation may lead to the
unintended consequence that a defendant who has committed
theft may escape criminal liability simply because he is charged
with shoplifting and the jury entertains a reasonable doubt
about one of shoplifting’s elements. But we are not persuaded
that this possibility is so absurd as to justify a departure from
the plain meaning of the statutory language. (See Lopez v. Sony
Electronics, Inc. (2018) 5 Cal.5th 627, 638 [“To justify departing
from a literal reading of a clearly worded statute, the result
must be so unreasonable that the Legislature could not have
intended it.”].)
      First, as we explain below, we believe prosecutors can
avoid this unintended consequence by charging shoplifting such


5
      As previously explained, a single course of conduct may
constitute both shoplifting and theft or both burglary and theft.
(See ante, at pp. 6–7.) Generally, a defendant may be charged
with and convicted of (but not punished for) multiple offenses
based on the same course of conduct. (See §§ 954 [permitting
multiples charges and multiple convictions], 654 [prohibiting
multiple punishment]; People v. Reed (2006) 38 Cal.4th 1224,
1225.)


                                 11
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


that petty theft is an uncharged lesser included offense under
the accusatory pleading test. (See post, at pp. 12–18.) Second,
both the statutory language and the Voter Information Guide
indicate that Proposition 47 was intended to prohibit multiple
charges based on shoplifting conduct—not merely multiple
convictions, as the Attorney General argued on appeal. To this
end, the Voter Information Guide specifically informed voters
that “shoplifting property worth $950 or less” could have been
“charged as burglary, which is a wobbler” prior to Proposition
47, but “would always be a misdemeanor and could not be
charged as burglary” if the Proposition 47 passed. (Voter
Information Guide, analysis of Prop. 47 by Legislative Analyst,
p. 35, italics added; see Colbert, supra, 6 Cal.5th at p. 599
[“[Section 459.5(b)] limits a prosecutor’s discretion in charging.”
(Italics added.)].) Although we do not know why Proposition 47’s
drafters chose to prohibit multiple charges rather than multiple
convictions, one possible reason is that a prohibition on multiple
convictions would have allowed a jury to find a defendant guilty
of burglary or theft charged as a felony before returning a
verdict on an alternative charge of misdemeanor shoplifting.
(See §§ 459.5, subds. (a) [“Shoplifting shall be punished as a
misdemeanor” unless defendant has a specified prior
conviction.], (b) [“Any act of shoplifting . . . shall be charged as
shoplifting.”].) Accordingly, we read section 459.5(b) to be a
prohibition on multiple charges, as it is written.
     B. Charging Shoplifting with Petty Theft as a
Lesser Included Offense
     Before this court, the Attorney General advances two
arguments as to why defendant was not prejudiced by trial
counsel’s failure to object. First, we consider his contention that
the prosecutor could have responded to an objection by

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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


amending the information to charge shoplifting such that petty
theft would be a 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. (People
v. Smith (2017) 57 Cal.4th 232, 244.) “To determine if an offense
is lesser and necessarily included in another offense for this
purpose, we apply either the elements test or the accusatory
pleading test. ‘Under the elements test, if the statutory
elements of the greater offense include all of the statutory
elements of the lesser offense, the latter is necessarily included
in the former. Under the accusatory pleading test, if the facts
actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included
in the former.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404,
quoting People v. Reed (2006) 38 Cal.4th 1224, 1227–1228.)
Once instructed on a lesser included offense, a jury may find
defendant guilty of that offense, but only after it has returned
an acquittal on the charged offense. (People v. Kurtzman (1988)
46 Cal.3d 322, 330 (Kurtzman); see § 1159 [“The jury, or the
judge if a jury trial is waived, may find the defendant guilty of
any offense, the commission of which is necessarily included in
that with which he is charged, or of an attempt to commit the
offense.”]) The defendant may not be convicted of both offenses;
if substantial evidence supports the conviction of the charged
offense, a conviction of the lesser included offense will be set
aside. (People v. Moran (1970) 1 Cal.3d 755, 763.)



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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


      Here, the Attorney General argues that section 459.5(b)
does not prevent a prosecutor from charging shoplifting with an
allegation that “the value of the property taken does not exceed
$950,” such that petty theft is a necessarily included offense of
shoplifting under the accusatory pleading test.6 He posits that,
had defendant’s trial counsel objected to the charges, the
prosecutor could have responded by amending the information
to charge shoplifting in this manner and, if so, the court would
have been required to instruct the jury on petty theft as an
uncharged lesser included offense of shoplifting.7 In the
Attorney General’s view, this would have led to a conviction of
petty theft. In response, defendant contends that this practice
would constitute an improper end run around section 459.5(b)’s
prohibition on charging shoplifting and “also” theft, thereby
allowing the prosecution “to do implicitly what it was prohibited


6
       Petty theft is not a necessarily included offense of
shoplifting under the elements test because the elements of
shoplifting do not require a taking. In other words, a defendant
can commit shoplifting without also committing petty theft—as
when he enters a commercial establishment while it is open
during regular business hours with the intent to commit theft of
property worth $950 or less, but does not take anything.
7
       In the shoplifting count of the amended information, the
prosecutor alleged that defendant “did unlawfully, with intent
to commit theft, enter a commercial establishment during
regular business hours, to wit, WALMART, where the property
taken or intended to be taken was valued at less than $950.00.”
(Italics added.) The Attorney General acknowledges that, as
charged in the amended information, petty theft was not a
necessarily included offense of shoplifting under the accusatory
pleading test, because defendant could have committed
shoplifting as charged without also committing petty theft—if
he entered Walmart with the intent to commit theft, but did not
take anything.


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


from doing explicitly” and “[e]ffectively restoring the
prosecutorial discretion that the voters plainly intended to take
away.” Additionally, defendant warns that this practice would
mark an “unwarranted and problematic expansion of the
accusatory pleading test,” inviting prosecutors to allege
extraneous facts to make “nearly any crime” a lesser included
offense of a charged offense.
      We agree with the Attorney General that, consistent with
section 459.5(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 under the accusatory pleading test. In
accord with the principles governing instructions on lesser
included offenses, if shoplifting is so charged and if there is
substantial evidence the defendant has committed petty theft
but not shoplifting, the trial court must instruct the jury on
petty theft, and the jury must return an acquittal on the
shoplifting charge before it may return a verdict on petty theft.
If defendant is convicted of shoplifting, he may not also be
convicted of petty theft.
      First, charging shoplifting with an allegation that “the
value of the property taken does not exceed $950” neither
requires nor permits prosecutors to allege facts extraneous to a
shoplifting charge.8 Section 952 allows prosecutors to charge an

8
      We agree with defendant that section 459.5(b) forbids
prosecutors from alleging facts extraneous to a shoplifting
charge in an attempt to circumvent the prohibition on charging
both shoplifting and theft of the same property. To use the facts
of this case as an example, if the prosecutor had charged solely
shoplifting, she could not have alleged that defendant had



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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


offense “in the words of the enactment describing the offense or
declaring the matter to be a public offense, or in any words
sufficient to give the accused notice of the offense of which he is
accused.” Section 459.5(a) defines shoplifting 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).” (Italics added.)
Therefore, not only is an allegation that “the value of the
property taken does not exceed $950” directly relevant to one of
the elements of shoplifting, but it also tracks the “words of the
enactment describing the offense.” (§ 952.) Additionally, this
allegation commits the prosecution to the theory that defendant
stole the property after entering with the intent to steal it,
thereby providing the defendant with greater notice of “the
offense of which he is accused.” (Ibid.)
       Second, we find this practice to be consistent with the
section 459.5(b)’s directive that “[n]o person who is charged with
shoplifting may also be charged with burglary or theft of the
same property.” (Italics added.) When there is substantial
evidence from which a jury could reasonably conclude that a
defendant committed an uncharged lesser offense that is
necessarily included in the charged offense, the trial court is
required to instruct the jury on the uncharged lesser included
offense. Because lesser included offenses are not formally
charged in separate counts of an accusatory pleading, we have
consistently referred them as “uncharged” offenses. (See, e.g.,


suffered a qualifying prior theft conviction and served a
qualifying prior prison term, because such allegations would be
relevant only to the uncharged section 666 petty theft with
priors offense.


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                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


People v. Eid (2014) 59 Cal.4th 650, 655, 656, 660; People v. Reed
(2006) 38 Cal.4th 1224, 1227, 1229, 1231.)
       Third, we reject defendant’s assertion that Proposition
47’s voters “made clear that they wanted the jury [to be]
presented with an all-or-nothing choice”—shoplifting or
acquittal. As mentioned above, we believe the voters wanted to
prevent prosecutors from circumventing their determination
that shoplifting conduct deserves a single misdemeanor
conviction by charging and convicting such conduct as felony
burglary, felony theft, both shoplifting and theft, or both
burglary and theft. But nothing indicates that the voters
wanted to prevent the jury from considering whether a
defendant committed petty theft when the evidence would
support a finding that the defendant committed petty theft but
not shoplifting. If the jury were precluded from considering
petty theft as an uncharged lesser included offense of
shoplifting, prosecutors would be left with no way to avoid the
unintended consequence that a defendant who commits theft
may escape criminal liability simply because the jury entertains
a reasonable doubt about one of shoplifting’s elements.
Although Proposition 47 was intended to reduce penalties for
“nonserious, nonviolent crimes like petty theft,” nothing
suggests that the measure was intended to eliminate the
penalties altogether. (Gonzales, supra, 2 Cal.5th at p. 870,
quoting Voter Information Guide, text of Prop. 47, § 3, subd. (3),
p. 70; see §§ 459.5(a) [“Any other entry into a commercial
establishment with intent to commit larceny is burglary.”];
490.2, subd. (a) [“[O]btaining any property by theft where the
value of the . . . property taken does not exceed nine hundred
fifty dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor,” unless the defendant has a


                                 17
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


specified prior conviction.].) Additionally, barring the jury from
considering petty theft as an uncharged lesser included offense
of shoplifting would “impair the jury’s truth-ascertainment
function.” (People v. Barton (1995) 12 Cal.4th 186, 196.) As we
have explained, the purpose of the rule requiring courts to
instruct juries on necessarily included offenses is “to assure, in
the interest of justice, the most accurate possible verdict
encompassed by the charge and supported by the evidence.”
(People v. Breverman (1998) 19 Cal.4th 142, 161.) “ ‘[T]he rule
prevents either party, whether by design or inadvertence, from
forcing an all-or-nothing choice between conviction of the stated
offense on the one hand, or complete acquittal on the other.’ ”
(People v. Smith, supra, 57 Cal.4th at p. 239, quoting People v.
Birks (1998) 19 Cal.4th 108, 119.)
      Finally, when construing voter initiatives, we presume the
voters were “aware of existing laws and the judicial construction
thereof.” (In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11.)
Therefore, we presume Proposition 47’s voters were aware of the
principles discussed above that would permit a defendant
charged with shoplifting to be convicted of an uncharged lesser
included offense of petty theft when the evidence would support
a finding that defendant committed petty theft but not
shoplifting.
      C. Charging Theft Instead of Shoplifting
      Next, we turn to the Attorney General’s argument that the
prosecutor could have responded to an objection by amending
the information to charge solely theft.
     The Attorney General does not dispute that section
459.5(b)’s first directive—“[a]ny act of shoplifting . . . shall be
charged as shoplifting”—prohibits a prosecutor from charging


                                 18
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


theft of the same property when the evidence is “clear” that
defendant’s conduct constitutes an “act of shoplifting.” But
when the evidence is “ambiguous,” he argues that a prosecutor
may charge theft if there is “probable cause to believe [a
defendant] committed only theft.” Under his reasoning, had
defendant’s trial counsel objected to the charges, the prosecutor
could have responded by amending the information to charge
solely theft, which would have led to the same theft conviction.
In defendant’s view, a prosecutor’s initial discretion to charge
shoplifting or theft “can be given meaningful deference,” but
once a prosecutor has charged shoplifting, section 459.5(b)
generally prohibits her from amending the accusatory pleading
to substitute a theft charge for the original shoplifting charge.
And while there may be some cases where section 459.5(b) would
permit such an amendment—for example, if a defendant
charged with shoplifting later testified that he formed the intent
to steal after entering a commercial establishment—this is not
one of them. Therefore, defendant argues, had his trial counsel
objected to the charges, the prosecutor could not have pursued
the theft charge only, and the result would have been a hung
jury on the original shoplifting charge.
       As the Attorney General observed in the court below,
“ ‘[S]ection 459.5 presumes that it will be clear whether a
defendant’s conduct constitutes shoplifting or not, before the
prosecutor makes the charging decision.’ ” (Lopez, supra, 26
Cal.App.5th at p. 389.) But this presumption does not apply
universally, as the facts of this case demonstrate. If defendant
possessed the intent to commit theft upon entering the Walmart
store, he committed both shoplifting and petty theft; if he formed
the intent once inside, he committed petty theft only. Consider
another example: a defendant enters a pawn shop with the


                                 19
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


intent to commit theft and steals a diamond ring with an
undetermined value. If the ring is worth $950 or less, the
defendant committed shoplifting and petty theft; but if the ring
is worth more than $950, he committed second degree burglary
and grand theft. (See § 487, subd. (a) [grand theft].) In our
system, only the factfinder—the jury or the court, if a jury trial
is waived—can make the determination that a defendant has
committed the criminal offense of shoplifting, but the factfinder
may do so only if the prosecutor charged shoplifting in the first
place. Consequently, in cases where it is unclear at the time of
charging whether defendant committed an “act of shoplifting,”
section 459.5(b)’s first directive is ambiguous.
      Once again, Proposition 47’s voters likely intended section
459.5(b)’s charging directives to prevent prosecutors from
circumventing their determination that shoplifting conduct
deserves a single misdemeanor conviction by charging and
convicting such conduct as felony burglary, felony theft, both
shoplifting and theft, or both burglary and theft. Therefore, we
presume the voters generally would have preferred prosecutors
to charge shoplifting instead of burglary or theft when a
defendant may have committed shoplifting. That way, the jury
generally will have the opportunity to decide whether a
defendant actually committed an “act of shoplifting” and, if so,
the defendant will be convicted of shoplifting only.
      Accordingly, we conclude that, as a general rule, section
459.5(b) prohibits a prosecutor from charging burglary or theft
instead of shoplifting when there is probable cause that a
defendant has committed shoplifting of the same property.
Therefore, in the common situation where a defendant is
apprehended leaving a store with unpurchased merchandise
worth $950 or less, the prosecutor may charge shoplifting only—

                                 20
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


even though there would also be probable cause to support a
charge of petty theft. As we stated in Gonzales, supra, 2 Cal.5th
858, at page 876, “A defendant must be charged only with
shoplifting when the statute applies. [Section 459.5] expressly
prohibits alternate charging and ensures only misdemeanor
treatment for the underlying described conduct.” (Italics
added.)
      We also agree with the Attorney General, however, that
there are exceptions to this general rule. Even when there is
probable cause that a defendant has committed shoplifting,
section 459.5(b) does not prevent a prosecutor from charging
burglary or theft instead of shoplifting—initially, or in an
amendment to the accusatory pleading within the constraints of
section 1009—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.9 In these cases,
section 459.5(b)’s prohibition on “alternate charging” does not
apply. (Gonzales, supra, 2 Cal.5th at p. 896.)
     To illustrate these points, we use the facts of this case.
The asset protection officer observed defendant place items into

9
      As is relevant here, section 1009 provides: “An indictment
or accusation cannot be amended so as to change the offense
charged, nor an information so as to charge an offense not shown
by the evidence taken at the preliminary examination. A
complaint cannot be amended to charge an offense not
attempted to be charged by the original complaint, except that
separate counts may be added which might properly have been
joined in the original complaint.” We also observe that after a
defendant has pleaded not guilty, the prosecutor may not amend
a complaint to include prior conviction allegations in an attempt
to convert a misdemeanor trial into a felony trial. (See §§ 682,
737, 969a, 969.5, 1009; see also Cal. Const. art. IV, § 5,
subd. (e).)


                                 21
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


an empty Walmart plastic bag within his shopping cart and exit
the store without paying for them. Defendant then admitted
that he had not paid for the items, and the asset protection
officer determined their combined value to be $496.37.
Although these facts constitute probable cause that defendant
committed both shoplifting and petty theft, section 459.5(b)’s
general rule—that a prosecutor may charge only shoplifting
when there is probable cause that the defendant has committed
shoplifting—would have prohibited the prosecutor from
charging defendant with petty theft based on this evidence.
Now, consider the added facts that defendant later told the
police that he had gone to Walmart with no intention of stealing
anything and only decided to take the items once he was inside
the store. Because these facts would support a theory that
defendant committed petty theft but not shoplifting—that
defendant stole items but that he did not have the intent to steal
the items when he entered the store—section 459.5(b) would not
have prevented the prosecutor from charging defendant with
petty theft instead of shoplifting based on all the evidence.10
      Although Proposition 47’s voters intended to limit
prosecutorial charging discretion, we do not believe they wanted
to require a prosecutor to charge shoplifting instead of burglary
or theft when the evidence would support a theory that
defendant committed burglary or theft but not shoplifting. As

10
      Even within this exception to section 459.5(b)’s general
rule that a prosecutor may charge only shoplifting when there
is probable cause that the defendant has committed shoplifting,
however, section 459.5(b) only allows the prosecutor to charge
theft instead of shoplifting, not in addition to shoplifting. (See
ante pp. 11–12.)



                                 22
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


mentioned above, the voters made a determination that
shoplifting conduct (without any of the specified prior
convictions) deserves a single misdemeanor conviction; but they
also made clear that “[a]ny other entry into a commercial
establishment with intent to commit larceny” remains
punishable as wobbler second degree burglary (§ 459.5(b)), and
that “obtaining any property by theft where the value of the . . .
property taken does not exceed nine hundred fifty dollars
($950)” is punishable as misdemeanor petty theft (§ 490.2,
subd. (a)).
       A contrary rule—one that would require a prosecutor to
charge shoplifting instead of burglary or theft in these
situations—raises ethical concerns and constitutional doubts.
As the Attorney General emphasizes, a prosecutor has a duty
“to charge only those offenses she believes she can prove beyond
a reasonable doubt.” (See People v. Catlin (2001) 26 Cal.4th 81,
109, quoting People v. Dunn–Gonzalez (1996) 47 Cal.App.4th
899, 914–915 [“A prosecutor abides by elementary standards of
fair play and decency by refusing to seek indictments until he or
she is completely satisfied the defendant should be prosecuted
and the office of the prosecutor will be able to promptly establish
guilt beyond a reasonable doubt.”].) And, as we have recognized,
“[P]rosecuting authorities, exercising executive functions,
ordinarily have the sole discretion to determine whom to charge
with public offenses and what charges to bring. [Citations.]
This prosecutorial discretion to choose, for each particular case,
the actual charges from among those potentially available arises
from ‘ “the complex considerations necessary for the effective
and efficient administration of law enforcement.” ’ [Citations.]
The prosecution’s authority in this regard is founded, among
other things, on the principle of separation of powers, and


                                 23
                          PEOPLE v. LOPEZ
                    Opinion of the Court by Chin, J.


generally is not subject to supervision by the judicial branch.
[Citations.]” (People v. Birks, supra, 19 Cal.4th at p. 134; see
Cal. Const., art. III, § 3; People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 509 [“ ‘If a statute is susceptible of two
constructions, one of which will render it constitutional and the
other unconstitutional in whole or in part, or raise serious and
doubtful constitutional questions, the court will adopt the
construction which, without doing violence to the reasonable
meaning of the language used, will render it valid in its entirety,
or free from doubt as to its constitutionality . . . .’ ”].) When it is
clear that a defendant committed criminal conduct but unclear
whether that conduct constituted shoplifting, forcing the
prosecutor to choose between no charge and a shoplifting charge
that she does not believe she can prove beyond a reasonable
doubt would be a troublesome intrusion upon a prosecutor’s
authority and responsibility to make appropriate charging
determinations on behalf of the People. (See Gov. Code,
§§ 26500, 26501.)
      As we explain below, our interpretation of the statutory
scheme is faithful to the voters’ intent that an act of shoplifting
deserves a single misdemeanor conviction whenever a defendant
does not have any of the prior convictions specified in
Proposition 47.
      The general rule—that a prosecutor may charge only
shoplifting when there is probable cause that the defendant has
committed shoplifting—is subject to just a few narrow
exceptions. First, where there is probable cause to support
charges of shoplifting and second degree burglary (§§ 459, 460)
or grand theft (§ 487, subd. (a)), a prosecutor may charge the
wobblers of second degree burglary or grand theft instead of
shoplifting under a theory supported by the evidence that the


                                  24
                         PEOPLE v. LOPEZ
                   Opinion of the Court by Chin, J.


property in question is worth more than $950. But in order to
return a guilty verdict on either of these charges, the jury must
actually find the property to be worth more than $950. (See e.g.,
CALCRIM Nos. 1700, para. 3 [burglary instruction where “the
evidence supports a defense theory that the crime was
shoplifting”], 1801 [grand theft]; CALJIC Nos. 14.50, para. 4
[burglary instruction where “the building entered was a
commercial establishment while that establishment was open
for business during regular business hours”], 14.32 [grand
theft].) Likewise, where there is probable cause to support
charges of shoplifting and second degree burglary, a prosecutor
may charge second degree burglary instead of shoplifting under
a theory supported by the evidence that the defendant did not
enter a commercial establishment open during regular business
hours. But in order to return a guilty verdict on the burglary
charge, the jury must actually find that the structure defendant
entered was not a commercial establishment or that the
defendant entered the commercial establishment outside of its
regular business hours. (See e.g., CALCRIM No. 1700, para. 3;
CALJIC No. 14.50, para. 4.)        In these cases, the jury’s
determination that the defendant committed second degree
burglary or grand theft effectively doubles as a determination
that the defendant did not commit shoplifting.
      Finally, where there is probable cause to support charges
of shoplifting and petty theft (§§ 487, 490.2), 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. But
petty theft must be charged as a misdemeanor unless the




                                 25
                          PEOPLE v. LOPEZ
                    Opinion of the Court by Chin, J.


defendant has a prior conviction specified in Proposition 47.11
(§ 490.2, subd. (a); see § 666, subds. (a), (b).) So, even though a
defendant charged with and convicted of petty theft may have
also committed shoplifting, he may only receive a single
misdemeanor conviction for such conduct, provided that he has
not suffered any of the relevant prior convictions.
                        III. CONCLUSION
      We agree with Court of Appeal’s conclusion that defendant
was charged in violation of section 459.5(b)’s prohibition on
charging a person with shoplifting and theft of the same
property. (Lopez, supra, 26 Cal.App.5th at p. 388.) But we
disagree with the court’s holding that section 459.5(b) would
have permitted the prosecutor to charge defendant with
shoplifting and theft in the alternative. Otherwise, we express
no view on the proper resolution of defendant’s claims.




11
       The decision to charge petty theft instead of shoplifting
generally will not affect the severity of punishment because the
list of prior convictions to charge petty theft as a felony
(§§ 490.2, subd. (a), 666, subds. (a), (b)) is nearly identical to the
list of prior convictions to charge shoplifting as a felony
(§ 459.5(a)). In a rare case, a defendant who does not have any
of the prior convictions to charge shoplifting as a felony under
section 459.5(a) may have the prior convictions and the prior
term in a penal institution to charge petty theft with priors as a
felony under section 666. Because Proposition 47 amended
section 666’s list of qualifying prior convictions to include some
offenses not listed in section 459.5(a), however, this is a
consequence that the voters could have contemplated. (See ante,
pp. 6–7, fn. 4; Voter Information Guide, text of Prop. 47, § 10,
p. 72; see id. at §§ 5, 8, pp. 71, 72.)


                                  26
                        PEOPLE v. LOPEZ
                  Opinion of the Court by Chin, J.


      For the foregoing reasons, we reverse the judgment of the
Court of Appeal and remand for further proceedings consistent
with our opinion.
                                                     CHIN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                27
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lopez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 26 Cal.App.5th 382
Rehearing Granted

__________________________________________________________________________________

Opinion No. S250829
Date Filed: April 30, 2020
__________________________________________________________________________________

Court: Superior
County: Tulare
Judge: Kathryn T. Montejano

__________________________________________________________________________________

Counsel:

Caitlin M. Plummer, under appointment by the Supreme Court, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, R. Todd Marshall, F. Matt Chen, Kathleen A. McKenna and Rachelle A.
Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Caitlin Plummer
Law Office of Lichstein & Plummer
2852 Willamette St., #164
Eugene OR 97405
(541) 505-7895

F. Matt Chen
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7768
