People v. Fusting

          APPEAL from an order of the Superior Court of San Diego County, No. SCN183440, David J. Danielsen, Judge.

          Reversed and remanded with directions.

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[Copyrighted Material Omitted]

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          COUNSEL

         Edward Mahler, 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, Theodore M. Cropley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Huffman, J., with Benke, Acting P. J., and Haller, J., concurring.

          OPINION

          [205 Cal.Rptr.3d 89] HUFFMAN, J.

          This is another case dealing with the proper interpretation of newly created Penal Code^[1] section 459.5^[2] regarding shoplifting. We are

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aware our Supreme Court [205 Cal.Rptr.3d 90] has granted review in numerous cases including opinions on opposing interpretations of the statute. Ultimately our high court will provide guidance on the interpretation and application of the statute. In the interim, it is our obligation to make our best efforts to correctly interpret and apply the section.

         The question presented by this appeal is whether a defendant must commit or intend to commit common law larceny at the time the person enters a commercial establishment during regular business hours. The parties do not dispute the building was a commercial establishment, that it ...