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People v. Gonzales

Supreme Court of California

March 23, 2017

THE PEOPLE, Plaintiff and Respondent,
GIOVANNI GONZALES, Defendant and Appellant.

         Superior Court Imperial County, No. JCF32479 Ct.App. 4/1 D067554, L. Brooks Anderholt Judge

          Richard A. Levy, under appointment by the Supreme Court; and Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

          Stephen P. Lipson, Public Defender (Ventura), Michael C. McMahon, Chief Deputy Public Defender, and William M. Quest, Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Michael Pulos, Arlene A. Sevidal, Christen E. Somerville and Alastair Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.

          Bonnie M. Dumanis, District Attorney (San Diego), James E. Atkins and Brooke E. Tafreshi, Deputy District Attorneys, for San Diego County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

          CORRIGAN, J.

         In 2014, Proposition 47 created the new crime of “shoplifting, ” defined as entering an open commercial establishment during regular business hours with the intent to commit “larceny” of property worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute, which also applies to an entry with intent to commit “larceny” or any felony. (Pen. Code, § 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft. Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute. Defendant may properly petition for misdemeanor resentencing under Penal Code section 1170.18. We reverse the Court of Appeal's contrary judgment.


         In December 2013, defendant Giovanni Gonzales visited his grandmother, Josefa Valencia, and stole her checkbook. Twice during that same week, he entered a bank and each time cashed one of her checks made out to him for $125. Valencia did not sign the checks or authorize defendant to cash them.

         Defendant was charged with the felonies of second degree burglary and forgery.[1] He pled guilty to burglary, the forgery count was dismissed, and he was placed on probation for three years. He subsequently admitted violating probation and probation was revoked and reinstated. When a second probation violation was alleged, defendant petitioned for recall of his sentence and resentencing under Penal Code section 1170.18. The trial court denied his petition and the Court of Appeal affirmed.[2]


         A. Legal Background

         1. The Safe Neighborhoods and Schools Act

         In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74 (Voter Information Guide).) The Act also added several new provisions, including Penal Code[1] section 459.5, which created the crime of shoplifting. Subdivision (a) provides: “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 is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. (§ 459.5, subd. (a).) Section 459.5, subdivision (b) contains an explicit limitation on charging: “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.”

         Section 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions.[2] If the offense committed by an eligible defendant[3] would have been a misdemeanor under the Act, resentencing is required 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).) A person who has already completed a felony sentence may petition to have his conviction designated a misdemeanor. (§ 1170.18, subds. (f), (g).)

         Defendant argued that his conduct would have constituted shoplifting under section 459.5 because he entered a commercial establishment during regular business hours with intent to take less than $950. (§ 459.5, subd. (a).) The prosecution countered that defendant's conduct did not constitute shoplifting because he did not enter the bank with intent to commit larceny but, instead, to pass forged checks, which constituted a theft by false pretenses. This argument rests on a distinction between different types of theft.

         2. Theft Offenses and Their Consolidation

         “Britain's 18th century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states.” (People v. Williams (2013) 57 Cal.4th 776, 784 (Williams).) California's first Penal Code recognized these distinctions, containing separate provisions for each type of theft. Former section 484 defined larceny as “the felonious stealing, taking, carrying, leading, or driving away the personal property of another.” (1872 Pen. Code, former § 484.) The crime of larceny derived from the common law and required both a taking without the property owner's consent and asportation of the property with the intent to permanently deprive the owner of possession.[4] (People v. Davis (1998) 19 Cal.4th 301, 305; Williams, at pp. 782-783.) Grand larceny was a felony; petit larceny, a misdemeanor. (1872 Pen. Code, former §§ 487-490.)

         Larceny was a crime against one's possession of property. By contrast, theft by false pretenses required that a defendant not merely take possession, but title as well. (Williams, supra, 57 Cal.4th at p. 784; see Ashley, supra, 42 Cal.2d at p. 258.) As originally enacted, section 532 applied, in part, to “[e]very person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property....” (1872 Pen. Code, former § 532.) Finally, embezzlement involves “an initial, lawful possession of the victim's property, followed by its misappropriation.” (Williams, at p. 784.) Section 503, unchanged since the original Penal Code, defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been intrusted.”

         The disaggregation of theft into different statutes created pleading challenges. Prosecutors had to plead the correct type of theft corresponding with the defendant's conduct, though “it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick” or “whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny.” (Williams, supra, 57 Cal.4th at p. 785.) To address this difficulty, the Legislature amended section 484 in 1927 to define a general crime of “theft.” Theft was defined expansively to include all the elements of larceny, false pretenses, and embezzlement.[5] The Legislature also enacted section 490a, stating that “[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft' were substituted therefor.” (Stats. 1927, ch. 619, § 7, p. 1047, italics added.)[6] This provision reflected the fact that the definition of theft encompassed all three ways in which property could be unlawfully stolen.

         “The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law. Indictments and informations charging the crime of ‘theft' can now simply allege an ‘unlawful taking.' [Citation.] Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking' has been proved.” (Ashley, supra, 42 Cal.2d at p. 258; see People v. Fewkes (1931) 214 Cal. 142, 149.) “The amendment to section 484... is designed not only to simplify procedure but also to relieve the courts from difficult questions arising from the contention that the evidence shows the commission of some other of these crimes than the one alleged in the indictment or information, a contention upon which defendants may escape just conviction solely because of the border line distinction existing between these various crimes.” (People v. Myers (1929) 206 Cal. 480, 484 (Myers).) “The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.” (Ashley, at p. 258; see Myers, at p. 483; see also People v. Nor Woods (1951) 37 Cal.2d 584, 586 (Nor Woods).) In other words, the crime is called theft, but to prove its commission, the evidence must establish that the property was stolen by larceny, false pretenses, or embezzlement.[7]

         3. Burglary and the Intent to Commit “Theft”

         The original Penal Code defined burglary as an entry into a specified room, structure, or craft “with intent to commit grand or petit larceny, or any felony.” (1872 Pen. Code, former § 459.) The statute's reference to larceny remains unaltered to this day.

         Several cases have addressed the interplay between the burglary statute and the consolidation of the theft offenses. In Myers, supra, 206 Cal. 480, the original information charged that the defendant had entered with the intent to commit larceny. The trial court, in recognition of section 490a, allowed the information to be amended to reflect a charge of burglary with intent to commit theft. (Myers, at pp. 481-482.) The defendant argued the amended information failed to state an offense. He first asserted that larceny was no longer a crime in light of section 484's amendment to excise that term. Accordingly, entry into a building with intent to commit larceny was also not criminal. Further, section 490a could not be applied to replace “larceny” with “theft” in the burglary statute because section 459 was not reenacted after passage of section 490a. (Myers, at p. 483; see Cal. Const., art. IV, § 9 [“A section of a statute may not be amended unless the section is re-enacted as amended.”]; TheGillette Co. v. Franchise Tax Bd. (2015) 62 Cal.4th 468, 483-484.)

         The arguments were rejected. Myers observed that larceny continued to be a crime under section 484 and “[a]ll former elements of this offense are perpetuated and contained in section 484 as amended.” (Myers, supra, 206 Cal. at p. 483.) Myers reasoned: “[T]he essence of section 490a is simply to effect a change in nomenclature without disturbing the substance of any law. It is, therefore, unimportant to dwell upon the contention that this section is ineffectual to interpret the word ‘larceny' to mean ‘theft' in section 459 of the Penal Code because of article IV, section [9], of the constitution, to the effect that the act revised or section amended shall be re-enacted and published at length as revised or amended. This would mean that a change of phraseology without changing the meaning can be accomplished only by a republication of every statute wherein the phrase appears. This, to our mind, is carrying the refinements of logic to the point of absurdity.” (Id., at p. 485; see People v. Dwyer (1938) 24 Cal.App.2d 639, 641-642.)

         Myers also rejected the defendant's argument that “inasmuch as section 484 now has these three crimes included within it, by charging the intent to be that of theft, the defendant is left without sufficient information as to which particular brand of theft he is supposed to have intended by the felonious entry of the building.” (Myers, supra, 206 Cal. at p. 485.) Myers reasoned no notice problem would arise from the failure to specify the type of theft “for if the defendant is told that he is charged with the felonious entry of a certain building, at a certain time, with a certain intent, which particular subdivision of the crime he is guilty of does not seem to be a matter that would prejudice his status....” (Ibid.)

         Later cases more expressly held that section 490a applied to the burglary statute, replacing the term “larceny” with the broader term of “theft.” In People v. Bayne (1934) 136 Cal.App. 341, the defendant contended there was a “fatal variance” between the information, which charged burglary with intent to commit theft, and the language of section 459. He argued that the term “theft” within the meaning of section 484 included types of theft other than larceny. Bayne held that “larceny” and “theft” were “made interchangeable” by section 490a, reasoning: “The term ‘larceny, ' as it is used in the definition of burglary appearing in section 459 of the Penal Code, is included within the term ‘theft' as it is defined in section 484 of the same Code. Burglary of the first degree is therefore accomplished by entering a building in the night-time, with the intent to commit either petit or grand theft, regardless of the value of the property sought to be stolen....”[8] (Bayne, at p. 348, italics added and omitted; see People v. Corral (1943) 60 Cal.App.2d 66, 70.)

         People v. Dingle (1985) 174 Cal.App.3d 21 held that entry with intent to commit a theft by false pretenses could support a burglary conviction. The theft in question was the defendant's use of the victim's home phone to place a long-distance call without her consent. The defendant argued that entry with intent to commit this type of theft could not support a burglary conviction because it did not constitute larceny. He urged that “only larceny will support the specific theft element requirement of burglary.” (Id. at p. 30.) Dingle rejected the argument: “Section 490a not only changed section 484 so that the word ‘larceny' formerly used therein became superseded by the word ‘theft, ' but plainly means that the word ‘larceny' in section 459 shall now be read and interpreted as if the word ‘theft' were substituted.” (Ibid.) It reasoned that the term “theft” embraces other kinds of unlawful takings with elements different from the elements of common law larceny. “We believe the act of defrauding specified in section 502.7, subdivision (a)(1) is a theft akin to false pretenses, ”[9] and an intent to commit that offense is sufficient for burglary. (Ibid.; see People v. Kwok (1998) 63 Cal.App.4th 1236, 1248, fn. 5.)

         Similarly, People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen) concluded that the defendant could be convicted of burglary for entering a victim's house on the pretense of purchasing property but intending to pay with a bad check. Nguyen rejected the claim that only an intent to commit larceny would support a burglary conviction. Noting the consolidation of the theft offenses and the nomenclature change of section 490a, Nguyen reasoned “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, at p. 31.)

         People v. Parson (2008) 44 Cal.4th 332, favorably cited Nguyen. Parson rejected the defendant's argument that he could not have been convicted of burglary if the evidence showed he entered the victim's home with intent to defraud. Parson reasoned: “An intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction. [Citation.] Consequently, we reject the contention that defendant could not have been found guilty of burglary (or a burglary murder) for merely intending to ‘con' [the victim] out of money in the manner described....” (Id. at p. 354, citing Nguyen, supra, 40 Cal.App.4th at pp. 30-31.)

         B. Section 490a Applies to Section 459.5

         “The first principle of statutory construction requires us to interpret the words of the statute themselves, giving them their ordinary meaning, and reading them in the context of the statute (or, here, the initiative) as a whole. If the language is unambiguous, there is no need for further construction. If, however, the language is susceptible of more than one reasonable meaning, we may consider the ballot summaries and arguments to determine how the voters understood the ballot measure and what they intended in enacting it.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 315.) “In construing constitutional and statutory provisions, whether enacted by the Legislature or by initiative, the intent of the enacting body is the paramount consideration.” (In re Lance W. (1985) 37 Cal.3d 873, 889 (Lance W.).)

         The Attorney General argues that use of the term “larceny” in section 459.5, coupled with labeling the offense “shoplifting, ” exhibited an intent by the electorate to limit that offense to the “common understanding of shoplifting, ” which she characterizes as taking goods from a store. The argument fails in light of the history of the burglary and theft statutes and their settled judicial construction. The drafters of the Act clearly had burglary in mind when defining “shoplifting.” Section 459.5 expressly mentions the burglary statute: “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 ...

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