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Date: May 4, 2015 2015 #2- IPG (RODRIGUEZ - SASSER- SEDILLO - KEITH)

February 29, 2016 On November 4, 2014, the voters in California passed Proposition 47, an initiative that, among

other things, reduced various theft-related, forgery, and drug possession crimes previously

prosecutable as felonies to misdemeanors and established a procedure for most defendants

convicted of those crimes to return to court and have their felony convictions for those crimes

reduced to a misdemeanors. This IPG memo is the first part of an outline of the laws enacted or

amended by Proposition 47, the over 70 cases published since its enactment interpreting those

laws, and the legal issues created by Proposition 47.

This memo is the first in a series on Proposition 47 and will focus on some issues arising in

interpreting the scope of two statutes first enacted by Proposition 47: Penal Code sections 459.5 and

490.2. When the final IPG memo in the series is published, it will be incorporate this memo into a

comprehensive outline covering all the published cases and issues. This memo does not reflect

policy determinations of the Santa Clara County District Attorney’s Office. This IPG memo had its

genesis in a P&A memo that, in turn drew directly from a memo put together by the incomparable

Santa Clara County Deputy District Attorney Kathy Storton.

This IPG memo is accompanied by a podcast featuring Prop 47 experts, Santa Clara County Deputy District Attorneys Dana Veazey and Eunice Yang. The podcast provides 35 minutes of general MCLE credit and may be accessed at the following link: https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA

2016-IPG#16: PROPOSITION 47 UPDATE – PT I

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What Prosecutors Need to Know About Prop 47 – If There is Only Five Minutes to Learn It Prop 47 eliminated a prosecutor’s ability to charge a wide variety of common drug and theft-related crimes as felonies

except when the defendants have convictions requiring sex offender registration or for crimes listed in Penal Code section

667(e)(2)(c)(iv), e.g., forcible sexual assaults, child molestation, homicides, serious or violent felonies punishable by life

imprisonment or death. Crimes listed in section 667(e)(2)(c)(iv) are referred to by the (pretty cool) term: “super strikes.”

Prop 47 created a new crime of “shoplifting” (PC § 459.5) that makes it a misdemeanor to enter a “commercial

establishment” during regular business hours with the intent to steal property worth $950 or less, requires the crime to be

charged if applicable, and bars charging of theft or burglary in the alternative. It can be a felony if the defendant has been

convicted of a crime requiring sex offender registration or of a super strike.

Petty theft with a prior (PC § 484/666) is longer a wobbler – it is a simple misdemeanor unless the person has been

convicted of a crime requiring sex offender registration or super strikes.

Certain types of grand theft, including theft from the person (PC § 487(c)), theft of a firearm (PC § 487(d)(2)), and theft

of an automobile (PC § 487(d)(1)), are no longer wobblers if the value of the property taken is $950 or less; the crimes are

simple misdemeanors unless the person has been convicted of a crime requiring sex offender registration or a super strike.

Forgeries (PC § 470) of certain types of items (e.g., checks, money orders) are no longer wobblers if the value of the item

does not exceed $950. They are simple misdemeanors unless the person has been convicted of a crime requiring sex

offender registration or of a super strike – and/or the defendant is also convicted of identity theft.

Writing bad checks (PC § 476) is no longer a wobbler if the amount of the checks written is less than $950. It is a

misdemeanor unless the person has been convicted of a crime requiring sex offender registration or of a super strike and/or

has three prior convictions for violating Penal Code sections 470, 475, 476 or 476a.

Receiving stolen property (PC § 496) is now only a felony if the property has a value over $950 unless the defendant has

been convicted of a crime requiring sex offender registration or of a super strike – in which case it remains a wobbler.

The three simple drug-possession offenses (H&S §§ 11350(a), 11377(a), 11357(a)) are no longer felonies or wobblers –

they are just misdemeanors unless the defendant has been convicted of a crime requiring sex offender registration or of a

supers trike.

Defendants who already have felony convictions for crimes reduced to misdemeanors by Prop 47 and who would have

only been guilty of misdemeanors if Prop 47 had been in effect at the time they were convicted, may ask to have those

convictions reduced to misdemeanors. The petition or application of a defendant meeting the aforementioned criteria must

be granted unless a court determines that resentencing a defendant who is currently serving a sentence would pose an

unreasonable risk the defendant would commit one of the super strikes in the future.

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TABLE OF CONTENTS FOR THIS WEEK’S MEMO

1. What is the expressed purpose behind Prop 47? 5 2. What is the effective date of Prop 47? 6 3. The new crime of “shoplifting”: Penal Code section 459. 6

A. What is the specific statutory language of Penal Code section 459.5? 6

B. What appears to be the purpose behind the enactment of section 459.5? 7

C. Is the requirement that the prosecution charge a defendant who commits shoplifting under section 459.5, and the limitation on the ability of the prosecution to charge theft or burglary in conjunction with a charge of shoplifting, a violation of the separation of powers? 7

D. What is a “commercial establishment?” 9 (i) Is entry into the noncommercial area of a commercial establishment or the

commercial area of a noncommercial establishment a violation of section 459.5? 11

E. Does the crime of shoplifting apply to entry into a store with the intent to commit theft even if no theft is committed? 12

F. Does the crime of shoplifting apply to entry into a store after the store is closed? 13 G. Will there ever be any reason to charge shoplifting in violation of section 459.5

instead of charging petty theft? 13 H. Will prosecutors ever want to charge a defendant with a violation of section 459.5

instead of second degree burglary (i.e., when the defendant has prior convictions requiring sex offender registration or convictions for super strikes)? 14

I. If a defendant has to register as a sex offender, but he does not have a conviction for a

crime listed in Health & Safety Code section 290(c), is the defendant eligible for felony punishment under section 459.5? 15

J. Does section 459.5 bar charging automobile burglaries or other burglaries that do not that do not fit the definition of “shoplifting”? 16

K. Does entry into a commercial establishment with the intent to commit a crime

(e.g., cashing forged checks) that does not meet the technical definition of “larceny” constitute a violation of section 459.5? 17

L. Kathy Storton’s Penal Code section 459.5 Chart 21

4. The slowly disappearing punishment for, and crime of, “petty with a prior”

(Penal Code § 484/666) 21

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A. Current statutory language of Penal Code section 666 22 B. If a defendant with a disqualifying prior conviction commits a new theft, how many

prior theft-related convictions does the defendant have to have in order for the defendant to be potentially eligible for state prison? 23

C. May a defendant who must register as a sex offender have his sentence enhanced to a felony for one of the theft-related crimes designated in section 666(a) even if the defendant does not have a conviction for a crime listed in Penal Code section 290(c)? 23

D. Does Proposition 47 impact violations of Penal Code section 666.5? 24

E. Kathy Storton’s Penal Code section 666 chart 24 5. The new definition of grand theft: Penal Code section 490.2 25 A. The statutory language of Penal Code section 490.2 25

B. What is the punishment for grand theft when the value of the money, labor, real or personal property taken does not exceed $950? 26

C. Are all statutes that define “grand theft” subject to Penal Code section 490.2? 26

D. What statutes make reference to “theft” and/or may potentially be impacted by

section 490.2? 27 E. Does section 490.2 cover burglaries in violation of Penal Code section 459 where the

property taken during the burglary is less than $950? 36 F. Does section 490.2 apply to acquiring or retaining access card information in violation

of Penal Code section 484e(d)? 37

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Section 3 of Proposition 47 states: “In enacting this act, it is the purpose and intent of the people of

the State of California to:

(1) Ensure that people convicted of murder, rape, and child molestation will not benefit from this act.

(2) Create the Safe Neighborhoods and Schools Fund, with 25 percent of the funds to be provided to

the State Department of Education for crime prevention and support programs in K–12 schools, 10

percent of the funds for trauma recovery services for crime victims, and 65 percent of the funds for

mental health and substance abuse treatment programs to reduce recidivism of people in the justice

system.

(3) Require 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.

(4) Authorize consideration of resentencing for anyone who is currently serving a sentence for any of

the offenses listed herein that are now misdemeanors.

(5) Require a thorough review of criminal history and risk assessment of any individuals before

resentencing to ensure that they do not pose a risk to public safety.

(6) This measure will save significant state corrections dollars on an annual basis. Preliminary

estimates range from $150 million to $250 million per year. This measure will increase investments

in programs that reduce crime and improve public safety, such as prevention programs in K–12

schools, victim services, and mental health and drug treatment, which will reduce future

expenditures for corrections.” (People v. Shabazz (2015) 237 Cal.App.4th 303, 308 [identifying

the factors as the “stated purpose and intent” of Proposition 47]; see also People v. Diaz (2015)

238 Cal.App.4th 1323, 1328 [declared purpose is “to ensure that prison spending is focused on

violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest

the savings generated ... into prevention and support programs in K–12 schools, victim services, and

mental health and drug treatment” while at the same time “ensur[ing] that sentences for people

convicted of dangerous crimes ... are not changed.”]

“Section 15 of Proposition 47 provides the “act shall be broadly construed to accomplish its

purposes” and Section 18 provides that it “shall be liberally construed to effectuate its purposes.”

(See People v. Thompson (2015) 243 Cal.App.4th 413, 418; Alejandro N. v. Superior Court

(2015) 238 Cal.App.4th 1209, 1222; People v. Gonzalez 2016 WL 542824, *2.)

1. What is the expressed purpose behind Prop 47?

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Proposition 47 became effective on November 5, 2014. (See People v. Diaz (2015) 238

Cal.App.4th 1323, 1328; Cal. Const., art. II, § 10 subd. (a) [an initiative statute or referendum

approved by a majority of votes thereon takes effect the day after the election unless the measure

provides otherwise].)

Proposition 47 enacted a new crime entitled “shoplifting” that is a hybrid of a commercial burglary

and a petty theft. The crime of shoplifting “has three elements: (1) entry into a commercial

establishment, (2) while the establishment is open during regular business hours, and (3) with intent

to commit larceny of property valued at $950 or less. (In re J.L. (2015) 242 Cal.App.4th 1108, 1114

citing to Pen. Code, § 459.5.)

“Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen

exceeds $950.” (People v. Sherow (2015) 239 Cal.App.4th 875, 879 citing to People v. Rivera

(2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, 889–891.)

Penal Code section 459.5 states:

(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. What is the effective date of Prop 47?

*Editor’s note: For a list of the offenses specified in Penal Code § 667(e)(2)(C)(iv) and listed in Penal

Code § 290(c), see the next edition of IPG. These offenses have come to be known as “super strikes”

(see Alejandro N. v. Superior Court of San Diego County (2015) 238 Cal.App.4th 1209, 1222, fn.

4; People v. Rivera (2015) 233 Cal.App.4th 1085, 1092) which is how we will refer to them.

3. The new crime of “shoplifting”: Penal Code section 459.5

A. What is the specific statutory language of Penal Code section 459.5?

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Under pre-existing law, a “shoplifter who surreptitiously enters a store with the intent to steal

commits burglary[.]” (People v. Davis (1998) 18 Cal.4th 712, 734.)

Although neither proponents nor the opponents of Proposition 47 touched upon section 459.5 in the

ballot arguments, it appears the proponents were trying to eliminate burglary convictions based

solely on entries into retail stores in order to steal property valued under $950. Presumably, the

proponents did not want prosecutors to charge this type of second degree burglary in a post-

Proposition 47 world as an alternative means of obtaining a felony conviction when a defendant

steals property from a commercial establishment under $950. That is why subdivision (b) requires

that “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting” and

prevents the charging of theft or burglary based on the property shoplifted as an alternative charge.

Article III, section 3 of the California Constitution provides the basis for application of the

separation of powers doctrine in California and states: “The powers of state government are

legislative, executive and judicial. Persons charged with the exercise of one power may not exercise

either of the others except as permitted by this Constitution.”

Certainly, the legislative branch has the authority to define what is or is not a crime and the

punishment for that crime without violating the separation of powers. (See Manduley v.

Superior Court (2002) 27 Cal.4th 537, 552 [“subject to the constitutional prohibition against cruel

and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the

legislative branch”].)

However (as Alameda County Assistant DDA Mike O’Connor has pointed out) an argument can be

made that the restrictions placed on prosecutorial discretion to charge crimes by Proposition 47

renders that aspect of Prop 47 unconstitutional as a violation of the separation of powers rule

embodied in Article III, section 3 of the California Constitution. Here is that argument:

B. What appears to be the purpose behind the enactment of section

459.5?

C. Is the requirement that the prosecution charge a defendant who

commits shoplifting under section 459.5, and the limitation on the

ability of the prosecution to charge theft or burglary in conjunction

with a charge of shoplifting, a violation of the separation of powers?

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“[T]he prosecuting 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 generally is not

subject to supervision by the judicial branch. [Citations.]’” (Manduley v. Superior Court (2002)

27 Cal.4th 537, 552 citing to People v. Birks (1998) 19 Cal.4th 108, 134, emphasis added by P&A.)

Consider the following language from People v. Mikhail (1993) 13 Cal.App.4th 846, a case dealing

with a question of the separation of powers between the judicial and executive branches: “Based on

article III, section 3 of the California Constitution, cases have held the charging function of a

criminal case is within the sole province of the executive branch, which includes the

Attorney General and the various district attorneys (Cal. Const., art. V, § 13) . . . Thus while the

legislative branch bears the sole responsibility and power to define criminal charges and to prescribe

punishment, it is the executive branch which decides which crime to charge and the

judicial branch which imposes sentence within the legislatively determined limits for the chosen

crime. (Mikhail at p. 854, citing to People v. Navarro (1972) 7 Cal.3d 248, 258, emphasis added

by IPG.) Accordingly, while an initiative (or statute) could prevent conviction for both a violation

of the new crime of section 459.5 and a violation of sections 459 or 484, it should not be able to

prevent charging those crimes in the alternative without an amendment to the California

Constitution.

Moreover, the fact that section 459.5 was added by way of an initiative enacted by the voters rather

than statute enacted by the legislature does not make a difference when it comes to whether the

new law violates the separation of powers doctrine. “Under our constitutional system the

Legislature is not the exclusive source of legislative power. ‘The legislative power of this State is

vested in the California Legislature which consists of the Senate and the Assembly, but the people

reserve to themselves the powers of initiative and referendum.’ (Cal. Const., art. IV, § 1.) ‘The

initiative is the power of the electors to propose statutes and amendments to the Constitution and to

adopt or reject them.’ (Cal. Const., art. II, § 8, subd. (a).)” (Professional Engineers in

California Government v. Kempton (2007) 40 Cal.4th 1016, 1043.) As repeatedly pointed out

in the California Supreme Court, “[t]he electorate's legislative power is ‘generally coextensive with

the power of the Legislature to enact statutes.’” (Professional Engineers in California

Government v. Kempton (2007) 40 Cal.4th 1016, 1043; accord Manduley v. Superior Court

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(2002) 27 Cal.4th 537, 552 [“the power of the people through the statutory initiative is coextensive

with the power of the Legislature”]; Legislature v. Deukmejian (1983) 34 Cal.3d 658, 675

[same].) The separation of powers principles are applicable to statutes passed by voter initiative and

in applying these principles, courts essentially treat a voter-enacted statute as an act of the

Legislature. (See e.g., Manduley v. Superior Court (2002) 27 Cal.4th 537, 552 [applying

separation of powers analysis to statute enacted by initiative]; People v. Superior Court

(Romero) (1996) 13 Cal.4th 497 [same].)

All that being said, section 459.5 is not the first statute to limit a prosecutor’s ability to charge a

crime. (See e.g., Pen. Code, § 288.5(c) [“No other act of substantial sexual conduct, as defined in

subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission

of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim

may be charged in the same proceeding with a charge under this section unless the other charged

offense occurred outside the time period charged under this section or the other offense is charged in

the alternative. A defendant may be charged with only one count under this section unless more

than one victim is involved in which case a separate count may be charged for each victim”].) And

prosecutors inclined to charge both section 459.5 and burglary or theft based on the taking of the

same property should be prepared to address defense arguments that, assuming the separation of

powers principles renders section 459.5(b) unconstitutional insofar as it restricts the ability of the

prosecution to charge both offenses, the initiative should nonetheless be interpreted to bar

conviction for anything other than section 459.5 if the conduct underlying alternative burglary or

theft charges is the same conduct underlying the section 459.5 charge.

As noted above, section 459.5 requires that the defendant enter “a commercial establishment with

intent to commit larceny while that establishment is open during regular business hours[.]” (Pen.

Code, § 459.5.) The statute, however, does not define the term “commercial establishment.”

Neither the current statute defining the crime of burglary (Pen. Code § 459) nor the statute defining

the punishment for burglary (Pen. Code, § 460) uses the term “commercial establishment.” Rather,

first degree burglary is distinguished from second degree burglary solely on the basis of whether the

structure entered is an “inhabited dwelling.”

D. What is a “commercial establishment?

*Editor’s note: The term “commercial establishment” was used in a former version of Penal Code section

667(e)(2) but was never interpreted.

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Only a few published post-Proposition 47 cases have directly addressed what constitutes a

“commercial establishment” for purposes of section 459.5.

In re J.L. (2015) 242 Cal.App.4th 1108 In J.L., a juvenile court found a minor had committed burglary in violation of Penal Code section

459 based on the minor entering a school locker room and stealing another student’s cell phone out

of a school locker. After Proposition 47 passed, the minor petitioned to change his juvenile felony

burglary offense to a misdemeanor shoplifting offense under newly-enacted section 459.5. The

petition was denied based on the trial court’s determination that the minor had not entered a

“commercial establishment,” as the term is used in section 459.5; and the minor appealed. (Id. at

pp. 1110-1111.)

On appeal, the minor argued that “a public high school is such an establishment because, as he put[]

it, a school “share[s] similar traits with a commercial establishment, such as maintaining regular

hours of operation, being closed regular days and hours, engaging with members of the public, and

conducting normal functions associated with most businesses (e.g. maintaining personnel, handling

payroll, accounting, accepting phone calls, dealing with inventory, etc.).” (Id. at p. 1113.) The

appellate court was not persuaded, finding that “[w]hatever broader meaning “commercial

establishment” as used in section 459.5 might bear on different facts, [the minor’s] theft of a cell

phone from a school locker room was not a theft from a commercial establishment. (Id. at p. 1104.)

Although the J.L. court did not come up an unqualified definition of “commercial establishment,”

the court did state that “[g]iving the term its commonsense meaning, a commercial

establishment is one that is primarily engaged in commerce, that is, the buying and

selling of goods or services.” (Id. at p. 1114 [and noting this definition comported with use of

the term in dictionaries and other legal sources], emphasis added by IPG.) The court also concluded

that the term “‘[s]hoplifting’ is commonly understood as theft of merchandise from a store or

business that sells goods to the public” and that the “voters enacting Proposition 47 understood the

reference to ‘shoplifting’ in the ballot pamphlet materials, including in the title and text of section

459.5, in the same way.” (Id. at pp. 1114-1115; cf., People v. Vargas (2016) 243 Cal.App.4th 1416

[197 Cal.Rptr.3d 638, 640] [discussed in this IPG memo, section 3-K at p. 17, and finding the

layperson’s understanding of shoplifting does not define scope of section 459].)

Considering “a public high school is not an establishment primarily engaged in the sale of goods and

services” but “an establishment dedicated to the education of students”, the court “simply [did] not

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believe that the voters enacting Proposition 47 understood a public high school to be a commercial

establishment or a theft from a school locker to be “shoplifting.” (J.L. at p. 1115.) Thus, the J.L.

court found it was immaterial “that a school maintains regular hours, accepts phone calls, or may

handle payroll in connection with its personnel.” (Ibid.)

In People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] (a case discussed at length

in this IPG memo, section 3-K at pp. 18-19 that held entry into a bank to cash a forged check worth

less than $950 qualified as “shoplifting”) the court agreed with the People that the term “commercial

establishment” in section 459.5 suggested that it applied to fewer structures than the structures

defined in the burglary statute (Pen. Code, § 459), which includes “any house, room, apartment,

tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel,” etc.

(Id. at p. 643.) However, the Vargas court also stated that nothing in Proposition 47 “suggests the

voters intended the term ‘commercial establishment’ to mean ‘retail establishment.’” (Ibid.)

(i) Is entry into the noncommercial area of a commercial establishment or the

commercial area of a noncommercial establishment a violation of section 459.5?

One of the more hotly disputed issues concerning the scope of section 459.5 is whether an entry

and/or theft from an area of a commercial establishment that is not being used for commercial

purposes (i.e., a bathroom, a breakroom, etc.,) is “shoplifting.” The inverse question can arise when

the primary purpose of the building entered is not commerce, but some commerce takes place inside

the building (i.e., where the building houses a cafeteria or gift shop).

So far no published decision has provided a direct answer to either of these questions. In In re J.L.

(2015) 242 Cal.App.4th 1108 (discussed in this IPG memo, section 3-D at pp. 10-11), the court held

entry into a school locker room to steal a cell phone was not shoplifting because a school was not a

commercial establishment. However, the court also stated, “[e]xcept for perhaps a school cafeteria

or bookstore (circumstances not at issue here, where the phone was stolen from a school locker), a

*Editor’s note: Although the court did not purport to give a comprehensive definition of “commercial

establishment,” the court cited various sources in support of its definition. One source that was cited was

37 C.F.R. § 258.2, which is a copyright regulation defining the term “commercial establishment” as “an

establishment used for commercial purposes, such as bars, restaurants, private offices, fitness clubs, oil

rigs, retail stores, banks and financial institutions, supermarkets, auto and boat dealerships, and other

establishments with common business areas”. This is a fairly expansive definition.

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public school is not engaged in the business of selling merchandise or goods at all.” (Id. at p. 1115.)

This statement can be spun in two ways. It could be viewed as indicating the focus in defining the

term is on the primary purpose of the establishment regardless of whether some portion of the

establishment is used for commercial purposes. Alternatively, it could be viewed as suggesting that

entry and theft from the cafeteria or bookstore in a school might qualify as shoplifting.

In People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] (a case discussed at length

in this IPG memo, section 3-K at pp. 18-19) the People argued that interpreting section 459.5 to

apply to entry into a bank to cash a forged check worth less than $950 (as the defendant in Vargas

did) would mean it would also apply in the following situations: “[When] a person. . . enters a

restaurant and sneaks into the manager's office to steal $900 from the safe [;] [when] a person . . .

enters the 24–hour supermarket and breaks into the locked pharmacy to steal drugs[;] [and when] a

person . . . enters the locker room of a private club and steals personal items from the lockers[.]”

(Id. at p. 646.) The Vargas court responded by noting that none of those situations was before

them but went on to say: “We also doubt these acts would fall within our reading of section 459.5.

For instance, private areas of commercial establishments may not qualify as an “establishment ...

open during regular business hours” as required by section 459.5.” (Ibid.)

As indicated above, the crime defined in Penal Code section 459.5 may be committed by entry to

commit theft when it can be shown that the defendant simply intended to steal items worth less than

$950. (See Pen. Code, § 459.5(a) [“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)”].) However, if property is not actually taken, it will be difficult to prove the specific

intent to take a particular item worth more than $950.

*Editor’s note: An excellent brief authored by Santa Clara County DDA Eunice Yang addressing the scope

of the term “commercial establishment” is available upon request.

E. Does the crime of shoplifting apply to entry into a store with the

intent to commit theft even if no theft is committed?

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Entry into a commercial establishment with intent to commit larceny outside the establishment’s

“regular business hours” is not shoplifting in violation of section 459.5(a); it is burglary in violation

of Penal Code section 459. (Pen. Code, § 459.5(a).)

Expect issues to arise in deciding what constitutes “regular business hours.” For example, is it

shoplifting (as opposed to burglary) when a defendant enters the store after posted business hours,

but before the doors to the store are closed and store employees are still handling other commercial

transactions?

One case has suggested that private areas of commercial establishments (otherwise open for regular

business hours) may not qualify as being an “establishment ... open during regular business hours”

for purposes of section 459.5. (See People v. Vargas (2016) 243 Cal.App.4th 1416 [197

Cal.Rptr.3d 638, 646].)

It is unlikely that prosecutors will often want to charge a violation of section 459.5 if the defendant

takes property from a store worth less than $950 and does not have a prior conviction requiring sex

offender registration or a prior conviction for a crime listed in section 667(e)(2)(c)(iv).

Section 459.5(b) does not allow for charging a violation of section 484(a) as an alternative charge to

section 459.5(a). Thus, a choice must be made. (But see this IPG memo, section 3-C at pp. 7-9

[discussing possibility this limitation is unconstitutional].) Assuming a theft has occurred, given the

choice between charging “shoplifting” and theft, it will always be better to charge a theft. This is

because it will always be easier to establish a theft in violation of Penal Code section 484(a) than a

“shoplifting” in violation of section 459.5 since there is no requirement in section 484(a) that the

prosecution prove an intent to steal upon entry into the store and there is no difference in the

punishment that may be imposed between the two crimes. The misdemeanor punishment language

in section 459.5 states it “shall be punished as a misdemeanor” unless the defendant has prior

convictions requiring sex offender registration or prior convictions for crimes listed in Penal Code

section 667(e)(2)(C)(iv). That language means punishment for shoplifting as a misdemeanor carries

F. Does the crime of shoplifting apply to entry into a store after the

store is closed?

G. Will there ever be any reason to charge shoplifting in violation of

section 459.5 instead of charging petty theft?

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a maximum of six months in jail pursuant to Penal Code section 19, which provides that every

offense declared to be a misdemeanor is punishable by up to six months in jail unless a different

punishment is prescribed. Penal Code sections 484-488 (petty theft) similarly carries a maximum

jail sentence of six months.

Moreover, it cannot be assumed that if section 459.5 is charged, it will be possible to obtain a

conviction for section 484(a) as a lesser included offense because section 459.5 does not necessarily

include all the elements of theft – albeit if the prosecution proceeded using specific complaint

language alleging entry plus actual theft, then theft could arguably be a lesser included offense

under the accusatory pleading test. (See People v. Birks (1998) 19 Cal.4th 108, 117 [“A lesser

offense is necessarily included in a greater offense if either the statutory elements of the greater

offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser

offense, such that the greater cannot be committed without also committing the lesser”].)

Indeed, it is theoretically possible that the defense may insist that the defendant be charged with

“shoplifting” instead of “theft” (pursuant to section 459(b), which provides that “any act of

shoplifting as defined in subdivision (a) shall be charged as shoplifting”) since it is more difficult to

prove shoplifting than theft and the punishment for either crime is the same.

On the other hand, if the defendant has prior convictions requiring sex offender registration or

convictions for offense specified in Penal Code section 667(e)(2)(c)(iv), then, despite the greater

difficulty in proving a violation of section 459.5 as opposed to petty theft, the prosecutor may wish to

proceed on the section 459.5 charge because it can be punished as a felony instead of as a

misdemeanor. (See Pen. Code, 459.5(a).)

Even if a defendant has prior convictions requiring sex offender registration or convictions for

offense specified in Penal Code section 667(e)(2)(c)(iv), it may not make sense to charge a defendant

with a violation of section459.5(a) as opposed to second degree burglary.

H. Will prosecutors ever want to charge a defendant with a violation of

section 459.5 instead of second degree burglary (i.e., when the

defendant has prior convictions requiring sex offender registration

or convictions for super strikes)?

15

This is because “shoplifting” is harder to prove than second degree burglary. Unlike with second

degree burglary (which just requires entry with the intent to commit either petty or grand theft or

any other felony), the crime of shoplifting requires the prosecution to prove the structure entered is

a commercial establishment, was open during regular business hours, and that a petty theft occurred

or the intent upon entry was to commit petty theft. It will be very difficult to prove the dollar value

of what a shoplifter intended to steal (whether it was over or under $950), unless the shoplifter

actually steals something. Moreover, there is no difference in the penalty that can be imposed

between second degree burglary and shoplifting when the defendant has prior convictions requiring

sex offender registration or convictions for offense specified in Penal Code section 667(e)(2)(c)(iv).

Indeed, because it is more difficult to prove shoplifting than second degree burglary, defendants with

prior convictions that allow for enhanced felony punishment who commit the crime of “shoplifting”

may, in reliance upon subdivision (b) of section 459.5, insist upon being charged with section

459.5(a) instead of second degree burglary. It is also possible that the defense may insist that

“shoplifting” be charged instead of a second degree burglary where there is some dispute over the

actual value of the property.

If a prosecutor chooses to charge second degree burglary, the prosecutor must be prepared to

establish the value of the goods taken is over $950 and/or the store was entered after regular hours

lest the defense argue that charging the second degree burglary violates Penal Code section 459.5(b)

which states: “Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting.”

This is something that was unnecessary to do when prosecuting second degree burglaries before the

passage of Proposition 47.

Penal Code section 459.5(a), in pertinent part, states, “[s]hoplifting 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.” (Emphasis added by IPG.)

I. If a defendant has to register as a sex offender, but he does not have

a conviction for a crime listed in Health & Safety Code section

290(c), is the defendant eligible for felony punishment under

section 459.5?

16

Thus, if the defendant is registering as a sex offender for a crime not listed in section 290(c) (i.e.,

because a court has found the defendant committed the offense as a result of sexual compulsion or

for purposes of sexual gratification pursuant to Penal Code section 290.006; or because of a juvenile

adjudication pursuant to Penal Code section 290.008) the defendant is not eligible for felony

punishment under section 459.5. (Contrast with Penal Code section 666(a) [applying enhanced

punishment “to any person who is required to register pursuant to the Sex Offender Registration

Act” –discussed in the IPG memo, section 4-A at p. 21].)

It does not appear that burglaries (including auto burglaries committed in violation of Penal Code

section 459) that do not constitute “shoplifting” are impacted at all by Proposition 47. By its own

terms, section 459.5 only applies to entering a commercial establishment with the “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).”

(Pen. Code, § 459.5(a).) Moreover, section 459.5 specifically states: “Any other entry into a

commercial establishment with intent to commit larceny is burglary.” (Pen. Code, § 459.5(a).)

In People v. Acosta (2015) 242 Cal.App.4th 521, the court rejected defendant’s argument that his

attempted auto burglary was covered by section 459.5: “Section 459.5 makes reference to no other

type of burglary, and it provides no reason to believe that burglary of a locked motor vehicle is now a

misdemeanor when the loss does not exceed $950.” (Id. at pp. 526-527; see also People v.

Gonzales (2015) 242 Cal.App.4th 35, 40-41 [rev. gtd, docket # S231171] [defendant’s entry into

bank to cash forged checks was just a burglary and section 1170.18 does not permit resentencing for

other theft offenses involving property under the threshold of $950 such as burglary].)

The issue of whether section 1170.18 impliedly includes any second degree burglary involving

property valued at $950 or less is pending before the California Supreme Court in People v.

Gonzales, docket # S231171 [formerly 242 Cal.App.4th 35].)

J. Does section 459.5 bar charging automobile burglaries or other

burglaries that do not fit the definition of “shoplifting”?

17

As noted above, the crime of “shoplifting” is defined as entering a commercial establishment with

intent to commit larceny while that establishment is open during regular business hours[.]” (Pen.

Code, § 459.5.) Whether larceny should be treated as synonymous with “theft” is subject to some

dispute. (Compare People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171]

[no] with People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638] [yes].)

In People v. Gonzales (2015) 242 Cal.App.4th 35 [rev. gtd, docket # S231171] the defendant

entered a bank and cashed two forged checks totaling $250. The checks were made payable to the

defendant and had the forged signature of the defendant’s grandmother. The defendant was

convicted of commercial burglary in violation of Penal Code section 459 by way of a guilty plea after

the forgery charge was dismissed. (Id. at pp. 37-38.) After Proposition 47 passed, the defendant

petitioned to be resentenced as a misdemeanant, claiming his offense qualified as “shoplifting”

under section 459.5. The trial court denied the request and defendant appealed. (Id. at pp. 37-38.)

Relying on the California Supreme Court case of People v. Williams (2013) 57 Cal.4th 776, the

Gonzalez court upheld the denial, pointing out that “‘larceny’ requires a “trespassory taking,”

which is a taking without the property owner’s consent” and, in the instant case, “the Bank of

America consented to transferring title and possession to $250 to” the defendant. (Id. at p. 39.)

That is, the defendant “used false representations that he was cashing valid checks made out to him

to obtain the money from Bank of America. Relying on those representations, which the bank must

have believed to be true, it consented to giving [the defendant] the money.” (Id. at pp. 39-40 [and

also rejecting the argument that section 1170.18 allows for resentencing for other theft offenses

involving property under the threshold of $950 such as burglary even though burglary is not

specified in the statute].)

However, People v. Gonzales (2015) 242 Cal.App.4th 35 has been taken up for review by the

California Supreme Court on the following issue: Was defendant entitled to resentencing under

Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it

met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section

1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?”

K. Does entry into a commercial establishment with the intent to

commit a crime (e.g., cashing forged checks) that does not meet the

technical definition of “larceny” constitute a violation of section

459.5

18

(See People v. Gonzales, docket # S231171.)*

On the other hand, in People v. Vargas (2016) 243 Cal.App.4th 1416 [197 Cal.Rptr.3d 638], the

trial court denied a defendant’s request to reduce her second degree burglary conviction to a

misdemeanor where the conviction was based on entry into a check cashing establishment with the

intent to use a forged check for $148. The trial court believed section 459.5 did not apply because

the defendant “did not to commit what the court commonly understood as shoplifting—the entry

into a retail establishment to steal displayed merchandise[.]” (Id. at p. 639.) The appellate court

disagreed with the trial court, finding defendant’s entry into the check cashing establishment with

the intent to commit theft by false pretenses met the requirements of section 459.5 and qualified her

for resentencing. (Id. at p. 640.)

The Vargas court rejected the People’s argument that section 459.5 is limited to the “common”

understanding of shoplifting (i.e., “the unauthorized entry into a retail establishment, while the

establishment is open during regular business hours, with the intent to steal openly-displayed

merchandise valuing not more than $950”). (Id. at p. 640.) The Vargas court acknowledged that a

“lay person might understand ‘shoplifting’ to mean entering a retail store during regular business

hours with the intent to steal displayed merchandise,” but stated that is not how it is defined in

section 459.5: “it is entering a commercial establishment during business hours with the “intent to

commit larceny.” (Id. at p. 640.) The Vargas court was similarly not convinced that just because

use of the term “commercial establishment” in section 459.5 is more narrow in scope than the many

different types of structure identified in section 459 (including “any house, room, apartment,

tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel,” etc.),

that this meant the voters intended the term “commercial establishment” to be synonymous with

“retail establishment.” (Id. at p. 653.) Lastly, the Vargas court rejected the People’s argument that

because section 459.5, in contrast to section 490.2 (which made certain theft offenses into petty theft

when “the value of the money, labor, real personal property taken” does not exceed $950) makes no

reference to money, labor, or real property, section 459.5 only applies when the theft is of personal

property (i.e., merchandise). The Vargas court rejected this argument because, while section 459.5

*Editor’s note: On the California Supreme Court website, there is a caveat regarding the description of

the identified issue: “The statement of the issues is intended simply to inform the public and the press of

the general subject matter of the case. The description set out above does not necessarily reflect the view

of the court, or define the specific issues that will be addressed by the court.” (See

http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2128068&do

c_no=S231171

19

does not itself define the term “property,” nothing suggests voters intended to limit the term to

personal property. And, in any event, section 459.5 refers to the intent to commit larceny, thereby

incorporating the definition of “theft” in section 484(a), which in turn defines theft by false

pretenses as defrauding another person of “money, labor or real or personal property,” the nearly

identical language in section 490.2. (Id. at pp. 643-644.)

The Vargas court also rejected the People’s argument, based on People v. Gonzales (2015) 242

Cal.App.4th 35 [rev. gtd, docket # S231171] (discussed in this IPG memo, section 3-K at p. 17), that

the “intent to commit larceny” element in section 459.5 cannot be satisfied by entering a commercial

establishment with the intent to commit theft by false pretenses. (Id. at p. 640.) The Vargas court

concluded the phrase “intent to commit larceny” included the intent to commit theft by false

pretenses because “[l]arceny is statutorily equated with ‘theft’ (§ 490a), and ‘theft’ is defined to

include theft by false pretenses, that is, ‘knowingly and designedly, by any false or fraudulent

representation or pretense, defraud[ing] any other person of money, labor or real or personal

property.’ (§ 484, subd. (a).)” (Vargas at p. 1640.)

The Vargas court believed the Gonzalez court went astray by relying on People v. Williams

(2013) 57 Cal.4th 776, which held that only theft by larceny, not by false pretenses, can fulfill the

“felonious taking” requirement of robbery because the “felonious taking” element of robbery must

be without the consent of the property owner, and theft by false pretenses “involves the consensual

transfer of possession as well as title of property.” (Vargas at pp. 643-644.) However, the Vargas

court said “section 459.5 redefined certain second degree burglaries, and our high court has held

‘[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will

support a burglary conviction.’” (Id. at p. 640 citing to People v. Parson (2008) 44 Cal.4th 332,

354.) Because Proposition 47 used the “phrase ‘intent to commit larceny’ in section 459.5, which

mirrors the intent element in the general burglary statute (§ 459), and that phrase includes theft by

false pretenses,” the Vargas court believed “the voters intended section 459.5 to include theft by

false pretenses.” (Id. at p. 646.) The Vargas court was also persuaded its interpretation was

consistent with the general intent behind Proposition 47 to focus spending on violent and serious

offenses and require misdemeanors instead of felonies for nonserious, nonviolent crimes since the

defendant’s conduct should unquestionably be viewed as a nonviolent offense given the fact

“Proposition 47 also reduced the offense of forgery involving less than $950 from a wobbler to a

straight misdemeanor. (§ 473, subd. (b).)” (Ibid.)

20

In People v. Triplett 2016 WL 489698, the appellate court agreed with Vargas that convictions

for burglary based on entry into a bank with the intent to pass a fraudulent check under $950 and

entry into a liquor store with a similar intent both qualified for reduction to misdemeanors because

they would have been violations of section 459.5 had they been committed after the passage of

Proposition 47. (Id. at pp. *1, *5-*6.)

The Triplett court rejected the People’s argument that because the defendant entered the

businesses to cash checks belonging to another person, the burglaries were based on felony identity

theft, not larceny, and thus did not qualify for reduction. (Id. at p. *5.) The Triplett court reasoned

that larceny is theft and theft is defined very broadly to include “knowingly and designedly, by any

false or fraudulent representation or pretense, defraud any other person of money” - which would

encompass fraudulent presentation of a check belonging to someone else to obtain money. (Ibid.) A

similar argument made by the People that defendant’s intent in both burglaries was to commit

forgery, not larceny, was rejected for the same reason. (Ibid.)

The Triplett court adopted very similar reasoning to the court in People v. Vargas (2016) 243

Cal.App.4th 1416 in support of its conclusion, finding that the court in People v. Gonzales (2015)

242 Cal.App.4th 35, 40-41 [rev. gtd, docket # S231171] went astray by relying on what “larceny”

means in the context of robbery cases instead of what it means in burglary cases. (Triplett at p. *5.)

The court noted Penal Code section 490a replaced statutory references to “larceny” with “theft” and

while section 490a has no application to robbery, it does apply to burglary and to shoplifting. (Id. at

p. *6.)

*Editor’s note: Although it is unlikely the voters (or even the proponents) actually believed “shoplifting”

would include entry into a bank to cash a forged check, the statutory language itself favors the interpretation

of section 459.5 adopted by the Vargas court rather than the Gonzalez court.

21

Value of Property is $950 or Less & Defendant Has No Specified Prior:

A misdemeanor violation of PC § 459.5 is chargeable, but PC § 484-488 petty theft is easier to prove and carries the same maximum 6-month jail punishment. With new PC § 459.5, entry with the intent to commit larceny must be proved, but there is no such requirement for PC § 484-488. As long as PC § 459.5 is not charged, theft can be charged.

Value of Property is $950 or Less & Defendant Has a Specified Prior:

A felony violation of P.C. 459.5 is chargeable.

Value of Property is Over $950, Regardless of Priors:

By definition, the crime is not shoplifting since the value is greater than $950. Possible charges include felony grand theft (PC § 487(a)), felony burglary (PC § 459-460(b): 2nd degree burglary)), etc.

Up until September of 2010, a violation of Penal Code section 484/666 was a wobbler. A defendant

who committed a petty theft (theft of property under $400) was subject to felony punishment (16-2-

3 years in state prison) if the defendant had previously been convicted of any of several designated

theft-related crimes and served a day in jail on the prior theft conviction.

In 2010, the legislature changed section 666 so that in order for a defendant to be eligible for felony

punishment in state prison for committing a new theft, the defendant had to have previously been

convicted three times of any of several theft-related crimes – except if the defendant was required

to register as a sex offender or had a prior violent or serious felony conviction – in which case only

one prior theft-related conviction was required. They also expanded what constituted a petty theft

to theft of property up to $950. (See A.B. 1844.)

In 2011, as part of Realignment, the legislature eliminated possible punishment in state prison (and

substituted a Penal Code section 1170(h) sentence) for commission of a theft by a defendant with

three or more theft-related convictions – except if the defendant had to register as a sex offender or

had a prior violent or serious felony conviction – in which case only one prior theft-related

conviction was required and a state prison sentence could still be imposed. (See A.B. 117.)

4. The slowly disappearing punishment for, and crime of, “petty

with a prior” (Penal Code § 484/666)

L. Kathy Storton’s Penal Code section 459.5 chart

22

In 2013, the legislature added “elder theft” (violations of Penal Code section 368(d) and (e)) to the

list of “prior crimes” that could count as an elevating prior conviction. (See S.B. 543.)

In 2014, with the passage of Proposition 47, the only defendants who are eligible for felony

punishment for commission of a theft under $950 are those defendants with certain designated

theft-related prior convictions who are required to register as sex offenders, those who have a super

strike (i.e., a felony conviction as defined in Penal Code section 667(e)(2)(C)(iv)), or those who have

a conviction for elder theft (i.e., a violation of Penal Code section 368(d) or (e)). Thus, no matter

how many times they commit petty theft, “[f]or most persons, the crime of petty theft with a

prior, for which the punishment is imprisonment in the county jail not exceeding one year or in the

state prison, is eliminated.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1330, emphasis

added.)

Penal Code section 666 (as of November 5, 2014) reads:

(a) Notwithstanding Section 490, any person described in subdivision (b) who, having been

convicted of petty theft, grand theft, a conviction pursuant to subdivision (d) or (e) of Section 368,

auto theft under Section 10851 of the Vehicle Code, burglary, carjacking, robbery, or a felony

violation of Section 496, and having served a term of imprisonment therefor in any penal institution

or having been imprisoned therein as a condition of probation for that offense, and who is

subsequently convicted of petty theft, is punishable by imprisonment in the county jail not exceeding

one year, or in the state prison.

(b) Subdivision (a) shall apply to any person who is required to register pursuant to the Sex Offender

Registration Act, or who has a prior violent or serious felony conviction, as specified in clause (iv) of

subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, or has a conviction pursuant to

subdivision (d) or (e) of Section 368.

(c) This section shall not be construed to preclude prosecution or punishment pursuant to

subdivisions (b) to (i), inclusive, of Section 667, or Section 1170.12.” (Emphasis added by P&A.)

A. Current statutory language of Penal Code section 666

*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of

subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see the next

edition of IPG.

23

A defendant with a prior conviction for a super strike, elder theft, or an offense with sex offender

registration imposed only has to have one theft-related prior conviction in order to be eligible for

commitment to state prison. (See People v. Diaz (2015) 238 Cal.App.4th 1323, 1330; Pen. Code, §

666(a).)

A defendant who has been required to register as a sex offender pursuant to Penal Code sections

290.006 (which allows a court to order registration for “any offense not included specifically in

subdivision (c) of Section 290 . . . if the court finds at the time of conviction or sentencing that the

person committed the offense as a result of sexual compulsion or for purposes of sexual

gratification”) or 290.008 (which requires registration following juvenile adjudications) may have

his sentence enhanced to a felony for one of the theft-related crimes designated in section 666(a).

C. May a defendant who must register as a sex offender have his sentence enhanced to a felony for one of the theft-related crimes designated in section 666(a) even if the defendant does not have a conviction for a crime listed in Penal Code section 290(c)?

B. If a defendant with a disqualifying prior conviction commits a new

theft, how many prior theft-related convictions does the defendant

have to have in order for the defendant to be potentially eligible for

state prison?

DDA Kathy Storton observation: If such a defendant is convicted of a felony petty with a prior, he or

she must either be sentenced to state prison or to county jail as a condition of probation – the defendant is

not eligible for a section 1170(h) sentence. However, with the exception of convictions for elder fraud, the

same disqualifying prior convictions that allow for a felony conviction of section 484/666 would, in any

event, disqualify the defendant from eligibility for any section 1170(h) sentence – regardless of whether the

new crime is a theft or some other felony.

*Editor’s note: Unlike many of the other sections added or modified by Proposition 47, a prior conviction

for elder fraud (Pen. Code, § 368(d) & (e)) can allow for an enhanced sentence under section 666(a). Thus,

a defendant with a single prior misdemeanor or felony conviction for violating section 368(d) or (e) for

which a term of imprisonment was served, is chargeable with a violation of section 666 as a felony or a

misdemeanor.

24

This is because, unlike the language in many of the sections enacted or modified by Proposition 47,

the language in section 666(b) provides that section 666(a) applies to “any person who is required to

register pursuant to the Sex Offender Registration Act . . .” and that Act includes Penal Code sections

290 to 290.024 (e.g., sections 290.006 and 290.008). (Pen. Code, § 290(a).)

Penal Code section 666.5(a) makes it a straight felony and allows punishment pursuant to section

1170(h) for 2, 3, or 4 years, if a defendant with a prior conviction for a felony violation of Vehicle

Code section 10851, a felony grand theft involving an automobile in violation of Vehicle Code section

487(d), a felony grand theft involving a motor vehicle, trailer, special construction equipment, or

vessel, or a felony violation of Section 496d commits a new violation of one of those sections.

Proposition 47 did not make any changes to Penal Code section 666.5. However, the enactment of

Penal Code section 490.2 might indirectly affect the ability of prosecutors to charge violations of

section 666.5 in the future if the item taken involves an automobile or other vehicle worth $950 or

less. (See the next edition of IPG.) Resentencing may also impact the ability to charge new

violations of section 666.5 if a prior felony conviction for grand theft involving an automobile has

been reduced to a misdemeanor. (See the next edition of IPG.)

Defendant Has a Specified Theft Prior For Which a Term of Imprisonment was Served And a Superstrike, or Must Register as a Sex Offender or Has a Misdemeanor or Felony Prior for PC § 368(d) or (e):

A felony or misdemeanor violation of PC § 666 is chargeable.

Defendant Has One Misdemeanor or Felony Prior for PC § 368(d) or (e) and Served a Term of Imprisonment:

A felony or misdemeanor violation of PC § 666 is chargeable

D. Does Proposition 47 impact violations of Penal Code section 666.5?

E. Kathy Storton’s Penal Code section 666 chart

25

Proposition 47 redefined “grand theft” for all defendants except those defendants who have

convictions for registerable sex offenses or crimes listed in Penal Code section 667(e)(2)(C)(iv) (aka

“super strikes”).

Proposition 47 did not change the language of Penal Code section 487, which defines what

constitutes “grand theft” for a variety of crimes. Nor did it alter Penal Code section 489 (which

defines the punishment for grand theft) or section 490 (which defines the punishment for petty

theft). However, it added a new section that imposes a $950 threshold for crimes defined as grand

theft that currently have no threshold (or a lesser threshold) if the theft is committed by defendants

without convictions for registerable sex offenses or super strikes. The section created by

Proposition 47 is: Penal Code section 490.2. Under section 490.2, without the $950 threshold being

met, these crimes will be considered petty theft.

As indicated above, while the distinction between petty theft and grand theft is ordinarily drawn at

the $950 threshold, there are a variety of crimes defined as “grand theft” which do not take into

consideration the value of the property stolen at all (see e.g., Pen. Code, §§ 487(c) [grand theft

person]; 487(d)(1) [grand theft automobile]; 487(d)(2) [grand theft firearm]; 487a [grand theft of

specified animals]; 484e [grand theft involving access cards]; or which have a lower than $950

threshold (see e.g., Pen. Code, §§ 487(b)(1) & (b)(2) [farm crop or animal/fish thefts had a $250

threshold]; 487b [conversion by severance of real property had a $250 threshold]; 487i [defrauding

a housing program had a $400 threshold]). Section 490.2 likely impacts these crimes.

The statutory language of Penal Code section 490.2 is as follows:

“(a) Notwithstanding Section 487 or any other provision of law defining grand theft,

obtaining any property by theft where the value of the money, labor, real or

personal property taken does not exceed nine hundred fifty dollars ($950) shall be

considered petty theft and shall be punished as a misdemeanor, except that such person may

instead be punished pursuant to subdivision (h) of Section 1170 if that person has 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.

5. The new definition of grand theft: Penal Code section 490.2

A. The statutory language of Penal Code section 490.2

26

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to

any other provision of law.” (Emphasis added by IPG.)

Because Penal Code section 490.2 says “obtaining any property by theft where the value of the

money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall

be considered petty theft and shall be punished as a misdemeanor” and does not provide for a

particular range of jail sentence, the punishment for grand theft in the above circumstances is the

same as the punishment prescribed for petty theft in Penal Code section 490, which limits

punishment to six months in jail and/or by a fine of up to $1,000. This is consistent with Penal Code

section 19, which provides that except in cases where a different punishment is prescribed, every

offense declared to be a misdemeanor is punishable by up to six months in jail and/or by a fine of up

to $1,000.

One issue that can arise in interpreting the scope of section 490.2 is that certain crimes defined as

“grand theft” (e.g., Penal Code section 484e(d)) do not fit neatly into the definition of “theft” - at

least as that term is defined in Penal Code section 484(a); yet section 490.2 seems to implicitly

incorporate the definition of “theft” found in section 484(a).

Penal Code section 484(a) states: “Every person who shall feloniously steal, take, carry, lead, or drive

away the personal property of another, or who shall fraudulently appropriate property which has

been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent

*Editor’s note: The People have the burden of proving the value of the property in order to obtain a

felony conviction for grand theft in any new prosecution. However, when a defendant is seeking to have a

prior felony conviction for grand theft reduced to a misdemeanor conviction pursuant to section 1170.18,

the burden is on the defendant to show the property was under $950. (See the next edition of IPG.)

*Editor’s note: For a list of the offenses specified in clause (iv) of subparagraph (C) of paragraph (2) of

subdivision (e) of Section 667 (aka “super strikes”) and listed in Penal Code section 290(c), see the next

edition of IPG.

B. What is the punishment for grand theft when the value of the money, labor, real or personal property taken does not exceed $950?

C. Are all statutes that define “grand theft” subject to Penal Code section 490.2?

27

representation or pretense, defraud any other person of money, labor or real or personal property, or

who causes or procures others to report falsely of his or her wealth or mercantile character and by

thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession

of money, or property or obtains the labor or service of another, is guilty of theft.”

Section 490.2 states “obtaining any property by theft where the value of the money, labor, real

or personal property taken does not exceed . . . $950 shall be considered petty theft . . .” Thus, it

should only apply where property has been obtained by “theft” (as that term is defined in section

Penal Code section 484(a)) is money, labor, or real or personal property, and where there has

actually been a “taking.” The elements of certain crimes that are self-defined as “theft” do not always

fall under the definition of “theft” as described in section 484(a) nor do they involve property that

has been taken. For example, Penal Code section 484e(d), which prohibits the acquisition or

retention of account information, identifies a crime described as grand theft but the crime may

arguably be committed without there being any taking of money, labor, or real or personal property.

(See this IPG memo, section 5-F at pp. 37-42.)

Accordingly, when the elements of a crime defined as “theft,” “petty theft,” or “grand theft” do not

actually correspond to the definition of “theft” or involve any actual “taking” of money, labor, or

property (to which some “value” may be attributed), section 490.2 may not be applicable. On the

other hand, section 490.2 may be interpreted as applying to any crime self-defined as “theft,” “petty

theft, or grand theft; and if, for example, information from an access card itself is viewed as being the

property that is the object of the “theft,” then the crime will always be petty theft since it is difficult

to establish the value of the information itself.

A pair of cases that may resolve the issue are currently pending before the California Supreme Court.

(See People v. Cuen, docket # S231107 [formerly 241 Cal.App.4th 1227 and discussed in this IPG

memo, section 5-F- at pp. 37-38].) People v. Romanowski, S231405 [formerly 242 Cal.App.4th

151 and discussed in this IPG memo, section 5-F at pp. 38-39.)

Below is a list of many (if not all) the possible statutes that might be impacted by section 490.2. If

the statute is one that is the subject of a lot of litigation, we have given the statute its own special

section.

D. What statutes make reference to “theft” and/or may potentially be impacted by section 490.2?

28

Food and Agricultural Code section 21852: [defines taking cattle from owner and driving it off

its usual range without consent as grand theft]

Penal Code section 67.5: [links the punishment for bribes given or offered to ministerial officers,

employees, or appointees to whether theft of whatever is offered as of the “bribe” would be petty

theft or grand theft. If the former, the crime of bribery is deemed a misdemeanor; if the latter, the

crime of bribery is deemed a felony punishable pursuant to section 1170(h)]

Penal Code section 186.22: [subdivision (a) of section 186.22 makes it unlawful to actively

participate in a criminal street gang with knowledge that its members engage in or have engaged in a

“pattern of criminal gang activity,” and willfully promote, further, or assist in any felonious criminal

conduct by members of that gang; subdivision (e) of section 186.22 defines what it means to engage

in a “pattern of criminal activity” as the commission of, attempted commission of, conspiracy to

commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of certain

predicate offenses, including “[g]rand theft, as defined in subdivision (a) or (c) of Section 487” and

“[g]rand theft of any firearm, vehicle, trailer, or vessel].)

*Editor’s note: The crime of violating section 21853 is no longer grand theft, but is petty theft if the value

of the items is under $950 unless the defendant has a conviction for a registerable sex offense or a super

strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).

*Editor’s note: Section 490.2 allows felony punishment for defendants with prior convictions for

registerable sex offenses or super strikes but a petty theft committed by one of these defendants remains a

petty theft, so even defendants with super strikes or who are registrable sex offenders are probably only

eligible for misdemeanor punishment if they offer a bribe less than $950.

*Editor’s note: Since section 490.2 provides that obtaining any property under $950 by theft shall be

considered petty theft notwithstanding section 487 or any other provision of law defining grand theft, an

argument can be made that the theft from the person of items under $950 in violation of section 487(c) or

theft of a firearm or vehicle in violation of section 487(d) can no longer constitute one the predicate

offenses described in section 186.22(e)(9)&(10). A counter argument may be made, however, that section

490.2 has no impact – at least as to theft from the person in violation of subdivision (c) of section 487.

This is because, while section 490.2 determines how a person convicted of grand theft as defined in

section 487 must be treated, section 186.22 itself was not overridden by section 490.2 and section 186.22

specifies what constitutes a predicate offense for its own purposes, i.e., grand theft as defined in section

487(a) or (c).

29

Penal Code section 459-2nd [automobile and commercial burglaries]

For a discussion of whether burglaries (otherwise not subject to Penal Code section 459.5) are

subject to section 490.2, see this IPG memo, section 5-E at p. 36.

Penal Code section 463(b) [provides that if a person commits grand theft , “as defined in Section

487 or subdivision (a) of Section 487a” (other than theft of a firearm) during a state of emergency or

during a local emergency resulting from an earthquake, fire, flood, riot, or other natural or unnatural

disaster, the defendant is guilty of crime of “looting” which is wobbler; if the theft is of a firearm as

defined in section 487, the crime is only a felony with a 16-2-3 penalty]

Penal Code section 484e(a): [defines selling, transferring or conveying an access card absent

consent of the card’s owner or issuer with the intent to defraud as grand theft]

Penal Code section 484e(b): [defines acquiring access cards of four or more persons within any

consecutive 12-month period, knowing they were obtained without the consent of the card’s owners

and with the intent to defraud as grand theft]

*Editor’s note: This section may or may not be impacted. The crime defined in section 463(b) is not

“grand theft”; rather, the commission of the crime of grand theft is one element of the crime of “looting.”

An argument can be made that implicit in section 490.2 is that thefts morphed from grand theft into petty

theft by 490.2 are stand-alone crimes. After all, section 490.2 states “obtaining any property by theft

where the value of the . . . property taken does not exceed . . . $950 shall be considered petty theft and

shall be punished as a misdemeanor[.]” (Pen. Code, § 490.2.) On the other hand, if section 490.2 is

interpreted as simply standing for the proposition that any theft of a property under $950 is not grand

theft but is only petty theft, then there can be no crime of looting based on taking an automobile or firearm

or from a person when the property taken is less than $950 because looting requires a “grand theft” to

have occurred.

*Editor’s note: As selling, transferring, or conveying an access card does not fit neatly into the definition

of “theft” as defined in Penal Code section 484(a) nor does that crime necessarily involve a “taking,” the

issues described in this IPG memo at section 5-C at p. 27 and 5-F at pp. 36 may arise.

*Editor’s note: As section 484e(b) does not “does not fit neatly into the definition of “theft” as defined

in Penal Code section 484(a) nor does the crime necessarily involve a “taking, the issues described in this

IPG memo at section 5-C at p. 27 and 5-F at pp. 37-42 may arise.

30

Penal Code section 484e(c): [defines acquiring or retaining access cards without the cardholder

or issuer’s consent with the intent to defraud and use, sell, or transfer the card to someone other

than the cardholder or issuer as petty theft]

Penal Code section 484e(d) provides: “Every person who acquires or retains possession of

access card account information with respect to an access card validly issued to another person,

without the cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand

theft.”

See this IPG memo, section 5-E at pp. 37-42 for a more extensive discussion of whether section

484e(d) is an offense subject to Penal Code section 490.2

Penal Code section 484g provides: “Every person who, with the intent to defraud, (a) uses, for

the purpose of obtaining money, goods, services, or anything else of value, an access card or access

card account information that has been altered, obtained, or retained in violation of section 484e or

484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money,

goods, services, or anything else of value by representing without the consent of the cardholder that

he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If

the value of all money, goods, services, and other things of value obtained in violation of this section

exceeds nine hundred fifty dollars ($950) in any consecutive six-month period, then the same shall

constitute grand theft.”

In People v. Grayson (2015) 241 Cal.App.4th 454 [rev. gtd, docket # S23175] the court drew a

contrast between section 484e and 484g and by doing so, the court intimated that section 484(g)

would be covered by Penal Code section 490.2. One of the reasons the Grayson court held section

484e(d) was not subject to section 490.2 is because section 484e(d) does not require the defendant

to obtain any property whose value can be easily assessed and thus it would be difficult to draw a

distinction between grand and petty theft. In contrast, the Grayson court noted that one of the

elements of section 484(g) is that the defendant obtain “money, goods, services, or anything else of

*Editor’s note: As section 484e(c) is already a misdemeanor, section 490.2 should have no impact on

the average defendant accused of violation section 484e(c). However, if section 490.2 is viewed as

applicable to section 484(e) crimes, then the language in section 490.2 allowing for defendants with

convictions for registerable sex offenses or super strikes to receive felony punishment pursuant to Penal

Code section 1170(h) for petty theft may apply to raise the punishment for these defendants.

31

value.” That is, the Grayson court suggested section 484g is the type of theft to which section

490.2 can easily be applied. (Id. at p. 459.) In People v. King (2015) 242 Cal.App.4th 1312 [rev.

gtd, docket #S231888], the appellate court engaged in a similar analysis suggesting section 484g is

subject to section 490.2. (Id. at pp. 459-460.) However, the California Supreme Court has since

granted review in both Grayson (docket # S23175) and King (docket # S231888) and deferred

further action in both cases pending consideration and disposition of a related issue in People v.

Romanowski, docket S231405 and People v. Cuen, docket S231107.

Penal Code section 484.1 [defines giving false information or verification regarding a persons’

true identity, ownership, or ability to sell pawned property in order to receive money or other

valuable consideration from a pawnbroker or secondhand dealer and then receiving money or other

valuable consideration from the pawnbroker or secondhand dealer as theft]

Penal Code section 487(a): [defines grand theft as occurring when “the money, labor, or real or

personal property taken is of a value exceeding . . . ($950) except as provided in subdivision (b)”]

Penal Code section 487(b)(1) [defines grand theft as including the theft of any of the following

items with a wholesale value of over $250: domestic fowls, avocados, olives, citrus or deciduous

fruits, other fruits, vegetables, nuts, artichokes, or other farm crops]

Penal Code section 487(b)(2) [defines grand theft as including the theft of any of the following

items with a value over $250 [fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural

products taken from a commercial or research operation]

*Editor’s note: Although prior to Proposition 47, this section was punishable based on whether the

property was over or under $950, section 490.2 now arguably allows punishment as a felony if the

property is under $950 but the defendant has a conviction for a registerable sex offense or a super strike –

in which case the defendant may be punished as a felon pursuant to section 1170(h).

*Editor’s note: Section 487(a) is not affected by the enactment of section 490.2- albeit language in

subdivision (a) indicating subdivision (b) also defines grand theft is no longer true in all circumstances

*Editor’s note: The crime is no longer grand theft, but is petty theft (even if the value of items taken is over

$250) if the value of items is $950 or less unless the defendant has a conviction for a registerable sex offense or

a super strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).

32

Penal Code section 487(b)(3) [defines grand theft as including the theft of “money, labor, or real

or personal property” taken by a servant, agent, or employee from his or her principal or employer

which aggregates to $950 or more in any 12 consecutive month period]

Penal Code section 487(c) [defines grand theft as including theft from the person of another]

Penal Code section 487(d)(1) [defines grand theft as including theft of an automobile]

Penal Code section 487(d)(2) [defines grand theft as including theft of an firearm]

Penal Code section 487a [defines grand theft to include the theft of various animals, including

horses, cows, sheep, and pigs – without referencing the value of the animal]

Penal Code section 487b & 487c [section 487b defines grand theft to include the conversion of

real estate of the value of $250 or more into personal property by severance from the realty of

another and, with felonious intent, steals, takes, and carries away that property; section 487c defines

petty theft in the same way when the value of the property is under $250]

*Editor’s note: The crime is no longer grand theft, but is petty theft (even if the value of items taken is over

$250) if the value of the items is under $950 unless the defendant has a conviction for a registerable sex

offense or a super strike – in which case the defendant may be punished as a felon pursuant to section 1170(h).

*Editor’s note: This crime should not be impacted by Proposition 47.

*Editor’s note: See the next edition of IPG.

*Editor’s note: See the next edition of IPG.

*Editor’s note: See the next edition of IPG.

*Editor’s note: Notwithstanding Penal Code section 489(b), which states the crime of violating section 487a is

punishable as a wobbler, a violation of section 487a is no longer grand theft, but is petty theft if the value of items

taken is under $950 unless the defendant has a conviction for a registerable sex offense or a super strike – in

which case the defendant may be punished as a felon pursuant to section 1170(h).

33

Penal Code section 487d [defines grand theft as including the theft of gold dust, amalgam, or

quicksilver from a mining claim]

Penal Code section 487g [makes it a “public offense” to steal or maliciously take or carry away

any animal of another for purposes of sale, medical research, slaughter, or other commercial use, or

to knowingly, by any false representation or pretense, defraud another person of any animal for

purposes of sale, medical research, slaughter, or other commercial use]

Penal Code section 487i [defines defrauding housing program of a public housing authority of

more than $400 as grand theft]

*Editor’s note: The crime of violating section 487b is no longer grand theft, but is petty theft (even if the

value of the items taken is over $250) if the value of the items is under $950 unless the defendant has a

conviction for a registerable sex offense or a super strike – in which case the defendant may be punished as a

felon pursuant to section 1170(h). If section 487c is viewed as subject to section 490.2, alternative felony

punishment for a violation of section 487c if committed by a defendant with a conviction for a registerable sex

offense or a super strike may be allowed.

*Editor’s note: The crime of violating section 487d is no longer grand theft, but is petty if the value of the

metals taken is under $950 unless the defendant has a conviction for a registerable sex offense or a super strike

– in which case the defendant may be punished as a felon pursuant to section 1170(h).

*Editor’s note: Section 487g does not state the crime identified in section 487g constitutes theft. It does

use the term “steal” however, and it appears that most violations of the crime would be theft as theft is

defined under Penal Code section 484(a). If the application of section 490.2 turns on whether the crime is

self-defined as “theft,” then arguably section 490.2 does not apply to violations of section 487g. If the

application of section 49o.2 turns on whether the crime is substantively “theft” as defined in section

484(a), then section 490.2 would apply. One other possibility: section 490.2 applies under either

circumstance. In any event, if section 490.2 does apply, then defendants convicted of violating section

487g by taking an animal worth less than $950 will not be subject to felony punishment (or a sentence to

state prison) unless the defendant has a conviction for a registerable sex offense or a super strike – in

which case the defendant may be punished by a term in state prison (note: section 1170(h) does not apply

to section 487g).

*Editor’s note: Pursuant to section 490.2, if the housing program is defrauded of less than $950, the

crime of violating section 487i must be considered “petty theft” punishable only as a misdemeanor unless

the defendant has a conviction for a registerable sex offense or a super strike – in which case the

defendant may be punished as a felon pursuant to section 1170(h).

34

Penal Code section 487j [makes it grand theft if a person steals copper wire, cable, tubing or

piping exceeding a value of $950]

Penal Code section 489(a) [states grand theft involving a firearm is punishable in state prison]

Penal Code section 489(b) [see this IPG memo, section 5-D at p. 32 – discussing Penal Code section 487a]

Penal Code section 489(c) [states that other than grand thefts involving firearms or violations of

section 487a, grand theft is a wobbler punishable pursuant to section 1170(h)]

Penal Code section 496c [defines theft to include copying, transcribing, photographing, or

making a record of private information relating to real property titles (or inducing another to do so)

without the consent of the owner for certain designated purposes as theft and states that the value of

the private information is determined by the cost of acquiring and compiling it.]

Penal Code section 642 [states that if a person removes, keeps possession of, and appropriates

for his own use articles of value from a dead human body, and the theft of articles would have been

petty theft, then the violation of section 642 is misdemeanor but if the theft of the articles would be

would have been grand theft, the violation of section 642 is a felony]

*Editor’s note: Because an element of the crime itself is that the copper be valued at more than $950,

section 490.2 should have no impact on section 487j even if the defendant has a conviction for a

registerable sex offense or a super strike.

*Editor’s note: Section 490.2 overrides this statute insofar as theft of firearms under $950 are

concerned unless the defendant has a conviction for a registerable sex offense or a super strike. See the

next edition of IPG.

*Editor’s note: Section 490.2 overrides this statute insofar as theft of a firearm less than $950 is

concerned unless the defendant has a conviction for a registerable sex offense or a super strike.

*Editor’s note: The crime of violating section 496c is not impacted in most circumstances by section

490.2. However, if the defendant has a conviction for a registerable sex offense or a super strike and

section 496c is viewed as obtaining any property by theft, section 490.2 potentially allows for alternative

felony punishment for a violation of section 496c.

35

Penal Code section 653f [makes it a wobbler, punishable to solicit another to commit or join in

the commission of, among other crimes, grand theft]

Penal Code section 666.5: See this IPG memo, section at 4-D at p. 24. Welfare and Institutions Code section 15656 [among other things, authorizes misdemeanor

punishment of up to a year in county jail for caretakers of elder or dependent adults who violate an

law prescribing theft or embezzlement when the money, labor, or personal property take is of a value

not exceeding $950]

*Editor’s note: Since section 490.2 indirectly controls the punishment for section 642, it defines when

the taking of articles constitutes petty theft or grand theft. Appropriating property from a dead body is

consequently a misdemeanor if the property taken is $950 or less. Even if that property is taken by a

defendant with a conviction for a registerable sex offense or a super strike, the crime of taking property

worth $950 or less from a dead body is still a misdemeanor, since section 490.2 only states that a

defendant with the requisite priors may be punished pursuant to section 1170(h); it does convert a petty

theft into a grand theft – which would be required in order to punish a violation of section 642 as a felony.

*Editor’s note: Penal Code section 490.2 only potentially impacts section 653f insofar as it would

preclude prosecution for violations of section 653f (that previously could be prosecuted as felonies) when

the grand theft is based on taking of property from the person, the taking firearms or automobiles valued at

$950 or less, or other grand thefts not previously subject to the $950 cut-off. This is because section 490.2

requires that the obtaining of any property not exceeding $950 must be considered “petty theft.” It

probably does not impact it all since solicitation is a different crime than theft even if the crime being

solicited is theft. (Cf., People v. Segura (2015) 239 Cal.App.4th 1282, 1284 [Proposition 47 does not

apply when the crime charged is conspiracy in violation of Penal Code section 182 even though the crime

that is the target of the conspiracy is one of the crimes subject to reduction to a misdemeanor under

Proposition 47.].)

*Editor’s note: If the caretaker has a prior conviction for a registerable sex offense or a super strike, section

490.2(a) arguably would allow for felony punishment pursuant to section 1170(h).

36

The charging of auto burglaries (of vehicles worth under $950) as felonies is not barred by Penal

Code section 490.2. Section 490.2 by its own terms, only applies to “obtaining any property by theft

where the value of the money, labor, real or personal property taken does not exceed nine hundred

fifty dollars ($950)[.]” (Pen. Code, § 490.2(a).) Whereas the burglary of a motor vehicle is

committed by entry into “vehicle as defined by the Vehicle Code, when the doors are locked ... with

intent to commit grand or petit larceny.” (Pen. Code, § 459.)

In People v. Acosta (2015) 242 Cal.App.4th 521, the court rejected defendant’s effort to bring

attempted car burglary in violation of Penal Code section 459 within the purview of Penal Code

section 490.2. The Acosta court pointed out that burglary of a motor vehicle is not a form of theft,

as theft is not an element of the offense. As opposed to the crime of theft, “the crime of burglary can

be committed without an actual taking[.]” (Id. at p. 526.)

The defendant in Acosta also argued that even if section 490.2 did not cover car burglaries

involving property under $950, there is no justification to punish a defendant who actually steals a

car worth less than $950 less severely than someone who merely enters a car worth less than $950

with the intent to steal. The defendant claimed “the Equal Protection Clause of the Eighth

Amendment to the United States Constitution requires that he receive the same treatment as a

defendant convicted of grand theft of an automobile, which is a misdemeanor under section 490.2

unless the value of the property taken exceeds $950.” (Id. at p. 527.) Moreover, the defendant

claimed this disparate treatment must be justified under the strict scrutiny standard, rather than

under the more lenient rational basis test. (Ibid.)

However, the Acosta court held the strict scrutiny standard does not apply “to the purported

disparity under Proposition 47 between the potential for felony punishment for his offense and the

misdemeanor treatment of vehicle theft involving a loss that does not exceed $950” because a

defendant “does not have a fundamental interest in a specific term of imprisonment or in the

designation a particular crime receives.” (Ibid.)

And, under the applicable rational basis test, defendant’s equal protection claim failed because “the

Legislature is afforded considerable latitude in defining and setting the consequences of criminal

offenses. (Ibid.) The Acosta court observed that “the electorate could rationally extend

E. Does section 490.2 cover burglaries in violation of Penal Code section 459 where the property taken during the burglary is less than $950?

37

misdemeanor punishment to some nonviolent offenses but not to others, as a means of testing

whether Proposition 47 has a positive or negative impact on the criminal justice system.” (Id. at p.

528.) A state does not have to “choose between attacking every aspect of a problem or not attacking

the problem at all.” (Ibid.) It may choose to proceed “in an incremental and uneven manner

without necessarily engaging in arbitrary and unlawful discrimination.” (Ibid.) Moreover, “as a

practical matter, defendant’s argument assumes an unlikely disparity in treatment. The electorate

could rationally expect there will be an insignificant number of vehicle thefts involving a loss not

exceeding $950, considering the present day value of vehicles. It is therefore probable that, after

Proposition 47, most prosecutions for car burglary and vehicle theft will be subject to the same

felony/misdemeanor punishment. To the extent some number of vehicle thefts may be treated as

misdemeanors while car burglaries or attempted car burglaries are subject to felony punishment, the

electorate could rationally conclude that car burglary should be treated more harshly because entry

must be made into a locked vehicle, an element not required of vehicle theft. And finally, because

attempted car burglary is an alternate felony/misdemeanor, in cases involving a loss less than $950

the electorate could reasonably expect that prosecutorial discretion will often result in prosecution

as a misdemeanor rather than a felony. These reasons, individually and collectively, provide a

rational basis for treating attempted car burglary differently than vehicle theft.” (Ibid.)

Penal Code section 484e(d) provides: “Every person who acquires or retains possession of access

card account information with respect to an access card validly issued to another person, without the

cardholder's or issuer's consent, with the intent to use it fraudulently, is guilty of grand theft.”

An argument can be made that section 490.2 does not apply to section 484e(d) because elements of

section 484e(d) do not fit the definition of “theft” envisioned by Proposition 47. However, cases are

split on the merits of this argument.

Cases finding section 484e(d) is not subject to section 490.2

In People v. Cuen (2015) 241 Cal.App.4th 1227 [rev. gtd, docket # S231107], the court ruled that

Proposition 47 did not apply to reduce the crime of violating Penal Code section 484e(d) to a straight

misdemeanor when the “theft” involves access card information. The Cuen court held that section

490.2 unambiguously applies only to thefts of “money, labor, real or personal property” and declined

F. Does section 490.2 apply to acquiring or retaining access card in violation of Penal Code section 484e(d)?

38

to stretch the definition of personal property to include intangible access card information. The

court stated the “[t]heft of intangible access card account information presents a qualitatively

different personal violation than theft of more tangible items” and since section 484e(d) is the more

specific statute, and it describes grand theft without reference to value, it controls over the more

general provision of section 490.2 regarding whether it can be charged as a felony. (Id. at p. 1231.)

The court also noted that “the logical understanding of the interplay between the various statutes—

and the one that seems to give each statute its plain meaning and avoid the most pitfalls—is that

section 490.2 applies solely to crimes involving the theft of “money, labor, real or personal property”

with a value less than $950.” (Ibid.) The decision in Cuen was subsequently taken up for review by

the California Supreme Court. (See People v. Cuen, docket # S231107.)

In People v. Grayson (2015) 241 Cal.App.4th 454 [rev. gtd, docket # S231757] the court also

concluded that section 490.2 does not govern section 484e(d). It reasoned that while “section 490.2

purports to apply to all provisions defining grand theft, it mentions only section 487. Sections 490.2

and 487, subdivision (a) are similar in that they refer specifically to the value of the “money, labor, or

real or personal property” obtained by the theft. In other words, both statutes presume a loss to the

victim that can be quantified to assess whether the value of the money, labor or property taken

exceeds the $950 threshold. Section 484e(d) does not contemplate such a loss.” (Id. at pp. 458-

459.) Moreover, “the essence of a section 484e(d) violation is the acquisition or retention of access

card information with the intent to use it fraudulently.” (Id. at p. 460.) “By prohibiting the

acquisition or retention of that information, section 484e(d) ‘protect[s] innocent consumers from

the injury, expense and inconvenience arising from the fraudulent use of their access card account

information.’” (Id. at pp. 459-460.) “Section 490.2 does not incorporate the ‘acquisition’ or

‘retention’ language of section 484e(d)” and does not “refer specifically to section 484e(d) or any

part of the ‘“comprehensive statutory scheme which punishes a variety of fraudulent practices

involving access cards.”’” (Id. at p. 460.) Finally, defendants can point to “no authority suggesting

the electorate intended to value the risk of such injury at $950 or less or to otherwise undercut the

‘broad protection to innocent consumers’ afforded by section 484e(d).” (Ibid.) However, the

California Supreme Court granted review in Grayson (docket # S231757) and deferred further

action pending consideration and disposition of a related issue in People v. Romanowski,

S231405 [see this IPG memo, section 5-F at p. 39] and People v. Cuen, S231107 [see this IPG

memo, section 5-F at pp. 37-38].

39

In People v. King (2015) 242 Cal.App.4th 1312 [rev. gtd, docket # S231888] the appellate court

agreed with Cuen and Grayson that a conviction under section 484e(d) does not qualify for

resentencing as a misdemeanor. It utilized a similar rationale to the rationale identified in those

cases, noting that the value of defendant’s acquisition or possession of account information is simply

not an element of the crime and that the “[d]efendant's construction of section 484e(d) would

require the insertion of elements which do not presently exist: use or attempted use and value.” (Id.

at p. 1316.) The King court disagreed with the Romanowski court that the value of an access card

can be calculated by reference to its value on the black market (see this IPG memo, section 5-F at p.

39), finding “there is no language in sections 490.2 or 1170.18 that suggests an intent to set

punishment for violating section 484e, subdivision (d) according to the “street value” of credit cards

and account information.” (Id. at p. 1317.)

Cases finding section 490.2 does apply to section 484e(d)

In People v. Romanowski (2015) 242 Cal.App.4th 151 [rev. gtd, docket # S231405], the court

disagreed with the holdings in Grayson and Cuen (see this IPG memo, section 5-F at pp. 37-38.)

The Romanowski court held “nothing in the statutes enacted or amended by Proposition 47 or the

voters’ intent behind the initiative to suggest theft of access card information should be treated any

differently than other theft offenses subject to reduction under Proposition 47[.]” (Id. at p. 154.)

The court reasoned that “Penal Code section 490.2(a) redefines all grand theft offenses as

misdemeanors if they involve property valued at less than $950” and applies “[n]otwithstanding

Section 487 [(defining grand theft)] or any other provision of law defining grand theft[.]” (Id. at p.

155.) “Section 484e, subdivision (d) defines acquiring or retaining possession of access card

information as grand theft.” (Id. at p. 156.) “[I]f grand theft involving property valued at less than

$950 is a misdemeanor, and acquiring or retaining possession of access card information is defined

as grand theft, then acquiring or retaining possession of access card information valued at less than

$950 is a misdemeanor. Thus, by its plain terms, section 490.2, subdivision (a) reduces a violation

of section 484e, subdivision (d) to a misdemeanor if it involves property valued at less than $950.”

(Ibid.) The Romanowski court also believed its interpretation was consistent with the purpose of

Proposition 47 (i.e., to “ensure that prison spending is focused on violent and serious offenses, to

maximize alternatives for nonserious, nonviolent crime”) because section 484e(d) “is one such

nonserious, nonviolent theft offense, and applying section 490.2, subdivision (a) to reduce qualifying

violations of section 484e, subdivision (d) certainly serves the purpose of reducing prison spending

on nonviolent offenders.” (Ibid.) The Romanowski court rejected the idea that section 490.2 is

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limited to—or even primarily focused on—grand thefts already defined by the value of the property

taken. Rather, the court believed section 490.2 eliminated grand thefts based on the type of

property involved. Grand theft, for purposes of section 490.2, is determined solely by reference to

the value of the property involved. (Id. at p. 157.) The court held this was true regardless of whether

the property is “information,” regardless of whether it is difficult to quantify the value of the

information, and regardless of whether the consumer-protection purpose behind section 484e(d)

would be undermined. (Id. at pp. 158-159.) The court stated that had the voters intended to exempt

grand theft under section 484e(d) from section 490.2(a), they would have done so expressly. (Id. at

p. 159.) What controls is not whether the crime of acquiring or account information tracks the

definition of theft, but the fact that section 484e(d) is designated as grand theft. (Id. at pp. 158-159.)

Like Grayson and Cuen, Romanowski was taken up by the California Supreme Court. (People

v. Romanowski, docket # S231405.)

In People v. Thompson (2015) 243 Cal.App.4th 413, pursuant to a plea agreement dismissing

several counts, the defendant was convicted of one count of violating Penal Code section 484e(d)

based on using another person’s ATM card. After Proposition 47 passed, the defendant

unsuccessfully petitioned to have sentence recalled and reduced. The defendant appealed the denial

of his petition. The Thompson appellate court held defendant was entitled to be resentenced

because section 484e(d) had been reclassified as a misdemeanor under section 490.2(a). (Id. at pp.

416-417.) The Thompson court identified several reasons why section 484e(d) is subject to the

mandate of section 490.2 that “obtaining any property by theft where the value does not exceed

$950 shall be punished as a misdemeanor.” (Id. at p. 418.) First, the plain language of section

490.2(a) provides it applies, “[n]otwithstanding Section 487 or any other provision of law defining

grand theft[.]” (Ibid.) “The Legislature defined the acquisition and retention of access card account

information with an intent to defraud as ‘grand theft’ and because section 490.2(a) “incorporates all

‘grand theft’ provisions, without reference to specific statutes, it applies to section 484e, subdivision

(d).” (Id. at p. 422.) Second, to the extent there is any ambiguity surrounding whether section

490.2 applies to section 484e(d), it should be resolved by reference to the purposes behind

Proposition 47, one of which is to “[r]equire misdemeanors instead of felonies for nonserious,

nonviolent crimes like petty theft” unless the value of the property taken exceeds $950. (Ibid.)

Third, language in the ballot pamphlet supports the conclusion that Proposition 47 was intended to

apply to all grand theft statutes, not only to those that were specifically value based. The Legislative

Analyst’s analysis stated: “A wobbler charge can occur if the crime involves the theft of certain

property (such as cars) or if the offender has previously committed certain theft-related crimes. This

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measure would limit when theft of property of $950 or less can be charged as grand theft.

Specifically, such crimes would no longer be charged as grand theft solely because of the type of

property involved.” (Id. at pp. 420-421.) The Thompson court noted that even in Penal Code

section 487 itself, there are offenses that are classified as grand theft without any reference to the

value of the property taken, such as grand theft from the person (Pen. Code, § 487(c)), grand theft

auto (Pen. Code, § 487(d)(1)), and grand theft firearm (Pen. Code, § 487(d)(2)). (Id. at p. 420 [and

also noting there are five other grand theft provisions that are value based but not enumerated under

section 490.2, subdivision (a) (§§ 487b, 487e, 487h, 487i, and 487j)].) Fourth, the reasons given for

not applying section 484e(d) do not stand up to scrutiny. For example, the court in People v.

Cuen (2015) 241 Cal.App.4th 1227 (see this IPG memo, section 5-F at p. 37) believed that section

490.2 should not govern section 484e(d) because “[t]heft of intangible access card account

information presents a qualitatively different personal violation than theft of more tangible items.”

(Thompson at pp. 418-419 citing to Cuen at p. 1231.) But, the Thompson court disagreed,

finding the alleged dichotomy between tangible and intangible property to be false since the broad

definition of “personal property” under Penal Code section 7 would include items like access cards

and access card account information. The access card itself is tangible personal property and under

the definition of personal property in Black’s law dictionary even intangible access card account

information falls within the definition of personal property. (Id. at p. 419.) The Thompson court

also found the Cuen court’s argument that a specific statutory provision (e.g., section 484e(d))

controls over a more general provision (e.g., section 490.2) (see this IPG memo, section 5-F at p. 37)

to be wanting because that rule only applies when a later more general statute does not expressly

contradict the earlier statute or not applying the rule “is absolutely necessary in order that all of the

words of the later statute have any meaning at all.” (Id. at p. 419.) And both of those exceptions to

the general rule apply to section 490.2, which “explicitly sweeps all earlier grand theft provisions

into its application by reclassifying them as petty theft unless the value of the property taken exceeds

$950” and has statutory language (“notwithstanding Section 487 or any other provision of law

defining grand theft”) that would be meaningless if it did not apply to all specific grand theft

provisions. (Ibid.) The Thompson court also took on the assumption in Cuen and Grayson

(see this IPG memo, section 5-F at pp. 37-38) that possession of access card account information

with fraudulent intent under section 484e(d) can be distinguished from other theft crimes because of

the significant risk of identity theft and loss to the victim and the corollary belief that the electorate

could not have intended to “undercut” the broad consumer-protection purpose behind section 484e,

subdivision (d) by valuing such a risk at $950 or less. The Thompson court observed that if the

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intent behind Proposition 47 were to exclude offenses under section 484e (d), section 490.2 would

have been written so its introductory language was narrower or included specified exceptions.

Moreover, the Thompson court found reasons for concluding Proposition 47 did contemplate the

risk posed by identity theft crimes but did not believe the risk sufficient to prevent relief under

Proposition 47. For example, Proposition 47 also amended Penal Code section 473 (check forgery),

making it a misdemeanor where the value of the check does not exceed $950. Yet checks contain the

same type of account information that is found on an access card, as well as the owner’s address.

Thus, a person in possession of another person’s check is likely to have access to the same identifying

information as a person who acquires and retains access card account information. But relief from a

felony conviction for violating section 473 explicitly states that the changes effectuated by

Proposition 47 apply unless the defendant is convicted both of forgery and of identity theft, as

defined in Penal Code section 530.5. That is, it is only when a defendant has actually been convicted

of identity theft that check forgery would not be reclassified as a misdemeanor. Furthermore, the

identity theft provisions under section 530.5 can be charged as either a misdemeanor or a felony, so

the intent to protect consumers against identity theft crimes is not synonymous with a felony charge.

(Id. at p. 420.)

Under the Thompson’s court interpretation, no mere acquisition or retention of an access card or

access card information could ever amount to grand theft. This is because it is an “evidentiary

impracticability” to try and base the value of the access account card information on what it would

fetch if it were fenced on the black market. The Thompson court determined that there is no

intrinsic value to the plastic of the access card ever exceeding $950 and “[t]he account information

also has minimal intrinsic value, in that it is only valuable if used.” (Id. at p. 422.) The Thompson

court was not troubled by this conclusion because it believed a felony could still be obtained,

pursuant to Penal Code section 484g, if the information is ever used and the value of all the property

acquired through use of the card account information exceeds $950 in a six-month period or,

alternatively, if the defendant were to take an access card or access card information and use it to

purchase property that exceeds $950. (Id. at pp. 422-423.)

NEXT EDITION: WE PRESENT THE SECOND PART OF OUR SERIES ON PROPOSITION 47. MAN, THERE ARE A LOT OF ISSUES. ETA – MARCH 15, 2016.

Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be

directed to Jeff Rubin at (408) 792-1065.