Filed 4/13/16 P. v. Heaton CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068631

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE341134)

BLAZE HEATON,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Daniel B.

Goldstein, Judge. Reversed with directions.

         Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Defendant and Appellant.

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

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
          In September 2014, Blaze Heaton entered a guilty plea to one count of commercial

burglary (Pen. Code,1 § 459) and admitted a strike prior (§ 667, subds. (b)-(i)). Pursuant

to the plea agreement, Heaton was sentenced to a determinate term of 32 months in

prison.

          Following the passage of Proposition 47, the Safe Neighborhoods and Schools Act

(§ 1170.18), Heaton petitioned the court to redesignate his burglary conviction to the

crime of shoplifting as created by Proposition 47 (§ 459.5). The court denied the petition.

          Heaton appeals contending the trial court incorrectly interpreted the language of

section 459.52 as it applies to the facts of this case. Essentially, the trial court concluded

shoplifting was the physical taking of merchandise for sale and that the intent required for

the offense was the intent to commit common law larceny. Since the entry into the

building in this case was to commit theft by false pretenses, the court reasoned the

offense did not qualify for redesignation as shoplifting. We disagree with the trial court's




1         All further statutory references are to the Penal Code.

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."
                                                2
analysis and we reject the similar arguments of the People. Accordingly, we will reverse

the order denying the petition and remand with directions to grant the requested relief.

                                STATEMENT OF FACTS

       The factual basis for Heaton's guilty plea was that he unlawfully entered a building

with intent to commit theft. The transcript of the preliminary hearing, considered by the

trial judge, shows that Heaton took another person's check to a Wells Fargo bank, made it

out to himself for $700 and deposited $300 into a new account. He took the remaining

$400 in cash.

                                       DISCUSSION

       The trial court was persuaded that the term "shoplifting" used in the new statute

had to be considered in its ordinary meaning. Similarly, the court reasoned that the use of

the intent to commit "larceny" in the statute indicated it was the physical theft of property

which the statute was designed to address. The court did not attempt to reconcile the

language with section 490a nor the case law involving the interpretation of the same

intent to commit larceny as used in the burglary statute, section 459.

       In support of the trial court's decision, the People argue the voters must have

intended shoplifting in a dictionary meaning, notwithstanding the statute's use of

language which has been long interpreted to include entry with the intent to commit theft.

Heaton's charges and guilty plea were based on the allegation and admission that he

entered the bank in this case with the intent to commit theft as required by section 459.

       As we will discuss, we are satisfied the plain language of section 459.5 must be

read in light of years of statutory interpretation of the same language and in light of the

                                              3
directions in section 490a. Applying those principles to the issues in this case we

conclude Heaton is entitled to the requested relief.

                                        B. Analysis

       The People contend Heaton did not commit shoplifting when he entered the bank

with the intent to commit theft by false pretenses because shoplifting requires an intent to

commit 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.)

       On February 8, 2016, the Third District Court of Appeal addressed the question of

whether shoplifting under section 459.5 could only occur where the defendant entered the

commercial establishment with the intent to commit common law larceny. (People v.

Triplett (2016) 244 Cal.App.4th 824 (Triplett).) The court concluded that entry into a

commercial establishment, during regular business hours, with the intent to commit

"theft" in an amount less than $950 constitutes shoplifting under the new statute. The

court in Triplett rejected the People's argument that such crime could only be committed

with an intent to commit larceny.

       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

                                             4
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

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, supra, 40 Cal.App.4th 28, 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." (Nguyen, supra, at p. 31.) The Nguyen holding is more

                                              5
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 such limited

scope, 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), the intent for

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.' " (People v. Rivera (2015) 233 Cal.App.4th 1085, 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."

       Since the briefing was completed in this case, our court filed its opinion in People

v. Root (2016) 245 Cal.App.4th 353 (Root). In that case we addressed basically the same

facts as in this case. Root entered several banks for the purpose of committing theft by

                                              6
presenting false checks. In Root we concluded that the language of section 459.5, read in

light of statute and case law does not restrict shoplifting in the new statute to entries with

intent to commit larceny, let alone limiting the offense to taking merchandise displayed

for sale. We agreed with the decisions in People v. Vargas (2016) 243 Cal.App.4th 1416,

1427 and Triplett, supra, 244 Cal.App.4th 824.3

       The respondent's brief notes that People v. Vargas, supra, 243 Cal.App.4th 1416

and Triplett, supra, 244 Cal.App.4th 824, have been decided but essentially dismisses

those opinions as wrongly decided. We assume the People also disagree with our opinion

in Root, supra, 245 Cal.App.4th 353. However, were are satisfied that all three decisions

are correct and continue to follow them. We think they present the correct interpretation

of the statute.4

       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

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

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



3       The Third District Court of Appeal has filed another opinion expressing the view
that section 495.5 can be violated by entry into a commercial establishment with the
intent to commit theft, in a form other than common law larceny. (People v. Valencia
(2016) 245 Cal.App.4th 730.) In Valencia, the theft at issue involved the use of
counterfeit $50 bills to purchase a $249.74 phone card.

4     We are aware the Supreme Court has granted review in People v. Vargas (2016)
243 Cal.App.4th 1416, review granted March 30, 2016, S232673 and People v. Gonzales
(2015) 242 Cal.App.4th 35, review granted February 17, 2116, S231171.
                                              7
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 that type of theft, but not for theft by false

pretenses, would contradict the voters' general intent of requiring misdemeanors for

nonserious, 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.

       As a final comment we note the People argue we should not deem the voters to

have understood the existing interpretation of the statutory language in the proposition. It

is suggested we should look to a dictionary definition of shoplifting and cite us to

Wharton's treatise on criminal law (3 Wharton's Criminal Law (15th ed. 2014) § 343) as

another possible source of meaning of the term in the proposition. Our response is, there

                                              8
was no dictionary definition offered to the voters, who instead had the language of the

statute before them and the legislative analyst's comments regarding the use of

commercial burglary to elevate what are essentially petty thefts to wobbler felonies. As

to Wharton's treatise on criminal law, one might wonder how many "law trained

professionals" have ever read it, let alone the voters at large.

       The amount of the loss in this case is without dispute. Heaton wrote a check for

$700. Well below the $950 required to support a felony.

                                       DISPOSITION

       The order denying Heaton's petition for relief under section 1170.18 is reversed.

The matter is remanded to the trial court with directions to grant the requested relief.




                                                                             HUFFMAN, J.

WE CONCUR:


              BENKE, Acting P. J.


                       HALLER, J.




                                               9
