Date: May 4, 2015
February 29, 2016
2015 #2- IPG (RODRIGUEZ - SASSER- SEDILLO - KEITH)
2016-IPG#16: PROPOSITION 47 UPDATE – PT I
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
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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
What is a “commercial establishment?”
9
D.
(i)
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
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
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
Does section 459.5 bar charging automobile burglaries or other burglaries that do not
that do not fit the definition of “shoplifting”?
16
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
Kathy Storton’s Penal Code section 459.5 Chart
21
H.
I.
J.
K.
L.
4.
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
The slowly disappearing punishment for, and crime of, “petty with a prior”
(Penal Code § 484/666)
3
21
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
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
C.
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
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
E.
F.
Does section 490.2 apply to acquiring or retaining access card information in violation
of Penal Code section 484e(d)?
37
4
1.
What is the expressed purpose behind Prop 47?
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.)
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2.
What is the effective date of Prop 47?
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].)
3.
The new crime of “shoplifting”: Penal Code section 459.5
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.)
A.
What is the specific statutory language of Penal Code section 459.5?
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.”
*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.
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B.
What appears to be the purpose behind the enactment of section
459.5?
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 postProposition 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.
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?
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:
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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.
D. What is a “commercial establishment?
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.”
*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.)
*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.
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
11
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.)
*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?
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.
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F.
Does the crime of shoplifting apply to entry into a store after the
store is closed?
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].)
G. Will there ever be any reason to charge shoplifting in violation of
section 459.5 instead of charging petty theft?
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
13
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).)
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)?
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.
14
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.
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?
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.)
15
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].)
J.
Does section 459.5 bar charging automobile burglaries or other
burglaries that do not fit the definition of “shoplifting”?
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].)
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
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?”
17
(See People v. Gonzales, docket # S231171.)*
*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
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
18
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.)
19
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.
20
L.
Kathy Storton’s Penal Code section 459.5 chart
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.
4.
The slowly disappearing punishment for, and crime of, “petty
with a prior” (Penal Code § 484/666)
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 (16-23 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.)
21
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.)
A.
Current statutory language of Penal Code section 666
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.)
*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.
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?
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).)
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.
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)?
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).
23
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).)
D.
Does Proposition 47 impact violations of Penal Code section 666.5?
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.)
E.
Kathy Storton’s Penal Code section 666 chart
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
24
5.
The new definition of grand theft: Penal Code section 490.2
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.
A.
The statutory language of Penal Code section 490.2
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.
25
(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.)
*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?
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.
*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.)
C.
Are all statutes that define “grand theft” subject to Penal Code section
490.2?
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
26
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.)
D. What statutes make reference to “theft” and/or may potentially be
impacted by section 490.2?
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.
27
Food and Agricultural Code section 21852: [defines taking cattle from owner and driving it off
its usual range without consent as grand theft]
*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).
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)]
*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.
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: 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).
28
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]
*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.
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]
*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.
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: 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.
29
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]
*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.
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
30
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]
*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).
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)”]
*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
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]
*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).
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]
31
*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).
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]
*Editor’s note: This crime should not be impacted by Proposition 47.
Penal Code section 487(c) [defines grand theft as including theft from the person of another]
*Editor’s note: See the next edition of IPG.
Penal Code section 487(d)(1) [defines grand theft as including theft of an automobile]
*Editor’s note: See the next edition of IPG.
Penal Code section 487(d)(2) [defines grand theft as including theft of an firearm]
*Editor’s note: See the next edition of IPG.
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]
*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).
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]
32
*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.
Penal Code section 487d [defines grand theft as including the theft of gold dust, amalgam, or
quicksilver from a mining claim]
*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).
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]
*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).
Penal Code section 487i [defines defrauding housing program of a public housing authority of
more than $400 as grand theft]
*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).
33
Penal Code section 487j [makes it grand theft if a person steals copper wire, cable, tubing or
piping exceeding a value of $950]
*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.
Penal Code section 489(a) [states grand theft involving a firearm is punishable in state prison]
*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.
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)]
*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.
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.]
*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.
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]
34
*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.
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]
*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.].)
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: 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).
35
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?
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
36
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.)
F.
Does section 490.2 apply to acquiring or retaining access card in
violation of Penal Code section 484e(d)?
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
37
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. 458459.) 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].
38
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.
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