People v. Root
People v. Root
Opinion of the Court
*355This appeal arises from David Michael Root's petition to reduce certain second degree burglary convictions to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (Pen.Code,
Although the precise issue in dispute has been somewhat of a moving target in the trial court and in the briefing in this court, it now appears the question presented here is whether entry into a bank to commit theft by false pretenses in amounts under $950 qualifies as "shoplifting" under newly enacted section 459.5. We conclude that proper application of statutes and case law compels us to conclude such crimes fit within the shoplifting offense, as now defined, and therefore Root's petition for relief must be granted.
FACTS AND PROCEDURAL BACKGROUND
In 2008, Root was convicted of multiple theft, forgery and burglary offenses.
*356In May 2015, Root filed a petition to reduce various theft, forgery and burglary offenses to misdemeanors. The court granted the requests with the exception of seven burglary counts because the court believed the offenses were not "shoplifting." The People had argued that the entries were with the intent to commit theft by false pretenses and thus did not qualify as shoplifting since the intent for such offense is to commit larceny.
DISCUSSION
As we have noted the contentions as to the precise issue before the court have been somewhat of a moving target. In the trial court the People argued these burglaries do not amount to shoplifting because they were not committed with the intent to commit larceny. The trial court, however seemed to conclude the offenses did not fit traditional concepts of shoplifting and denied the petition as to them.
In his opening brief, Root argued at length that the bank was a commercial establishment within the meaning of section *518459.5.
While we understand the basic argument of the People to be that intent to commit larceny is required for section 459.5, we hasten to point out the information in this case alleges the burglaries were committed with the intent to commit theft. Thus, we will discuss whether, in light of section 490a, the intent requirement for "shoplifting" must be read to be the intent to commit theft. If so, these burglaries qualify for the requested relief. We will conclude the requested relief should be granted.
A. Legal Principles
Proposition 47 added section 1170.18, which allows "[a] person currently serving a sentence for a conviction, whether by trial or plea, of a *357felony or felonies who would have been guilty of a misdemeanor under [Proposition 47 had it] been in effect at the time of the offense" to "petition for a recall of sentence" and request resentencing. (§ 1170.18, subd. (a).) A person seeking resentencing under section 1170.18 must show he or she fits the criteria in subdivision (a). If the person satisfies the criteria the person shall have his or her sentence recalled and resentenced to a misdemeanor, 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); T.W. v. Superior Court (2015)
Relevant here, Proposition 47 also added a new crime of shoplifting, which 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)." (§ 459.5, subd. (a).)
In interpreting section 459.5, Root urges we look to section 490a for guidance. Section 490a provides, "[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." (§ 490a.)
Specifically, our issue requires us to find the correct interpretation of the term "larceny" as used in section 459.5. " 'In interpreting a voter initiative like [Proposition 47], we apply the same principles that govern statutory construction.' [Citation.] ' "The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" ' [Citation.] In the case of a provision *519adopted by the voters, 'their intent governs.' [Citation.] [¶] ' "In determining such intent, we begin with the language of the statute itself." ' [Citation.] We look first to the words the voters used, giving them their usual and ordinary meaning. ' "If there is no ambiguity in the language of the statute, 'then ... the plain meaning of the language governs.' " ' [Citation.] "But when the statutory language is ambiguous, 'the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes.' " [Citation.] [¶] In construing a statute, we must also consider " 'the object to be achieved and the evil to be prevented by the legislation.' " [Citation.]' 'When 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)
The People contend Root did not commit shoplifting when he entered the various banks 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)
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)
The People, relying principally on an opinion of our court in People v. Gonzales (2015)
In Williams, our high court discussed whether a man who committed theft by false pretenses and subsequently pushed a security guard in an attempt to *359flee could satisfy the "felonious taking" requirement of robbery. (Williams, supra, 57 Cal.4th at pp. 779-780,
The analysis in Williams, supra,
Conversely, in People v. Nguyen, supra,
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 *360language, the usual presumption is that the Legislature [or the voters] intended the same construction, *521unless a contrary intent clearly appears.' " (Rivera,supra, 233 Cal.App.4th at p. 1100,
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 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.
We will only comment briefly on the People's argument that this case is about entries into banks with intent to commit forgery. As we have noted, the information charged Root with entry with "intent to commit theft," not forgery. Obviously the charge was based upon the theory that presenting a false document to the bank to obtain money was also theft by false pretenses. Thus, whatever the merits may be of the argument the entry with intent to commit forgery does not fit section 459.5 that is not the case before us. Accordingly, we decline to discuss the argument further on this appeal.
*361DISPOSITION
The order denying Root's petition to reduce the burglary convictions in counts 5, 8, 11, 14, 17, 20 and 23 is reversed. The case is remanded to the trial court with directions to grant the requested relief and to resentence accordingly.
WE CONCUR:
BENKE, Acting P.J.
HALLER, J.
All further statutory references are to the Penal Code unless otherwise specified.
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."
Reference
- Full Case Name
- The PEOPLE, and v. David Michael ROOT, and
- Cited By
- 11 cases
- Status
- Published