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California Supreme Court: § 459.5(b) Prohibits Charging Shoplifting and Theft for Same Property

The Supreme Court of California held that California Penal Code § 459.5(b) prohibits charging both shoplifting and theft for the same property, even in the alternative.

Anthony Lopez exited a Walmart pushing a cart containing merchandise valued at $496.37. An asset protection officer confronted him, and Lopez admitted he had not paid for the items. Lopez later told police that he had gone to Walmart with $5 to purchase a few items and had no intention of stealing anything. But once inside the store, he decided he needed money and placed the items in his cart and left without paying for them. The prosecutor filed a complaint charging Lopez with felony shoplifting under § 459.5(a) but amended the complaint to add a charge of petty theft with priors under § 484(a) and § 666. Lopez’s attorney did not demur to, or otherwise object to, the amended complaint.

At Lopez’s trial, the jury submitted a note stating “split on the decision for shoplifting, based on intent.” The jury found Lopez guilty of petty theft, but the court declared a mistrial on the shoplifting charge and dismissed it on the motion of the prosecutor. In a bench trial, the court found true all the alleged priors.

Lopez appealed, arguing § 459.5(b) prohibited charging him with both shoplifting and theft for the same property. He also argued his attorney was ineffective for failing to demur to, or otherwise object to, the amended complaint. The Attorney General responded that the prosecutor had violated § 459.5(b) by charging shoplifting and theft in the conjunctive, but the claim had been forfeited. As to the ineffective counsel claim, the Attorney General contended that Lopez didn’t suffer any prejudice by his attorney’s failure to object because § 459.5(b) would have permitted the prosecutor to respond to the objection by amending the complaint to charge shoplifting and theft in the alternative, which would have resulted in the same conviction. The Court of Appeal agreed with the Attorney General and affirmed. The California Supreme Court granted Lopez’s petition for review.

The Court observed that in 2014 California voters passed Proposition 47 to “[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession, unless the defendant has prior convictions for specified violent or serious crimes.” People v. Gonzales, 392 P.3d 437 (Cal. 2017). Proposition 47 added § 459.5 to the Penal Code to separate the new offense of “shoplifting” from burglary. People v. Martinez, 413 P.3d 1125 (Cal. 2018). If a person enters a commercial establishment that is open during regular business hours with the intent to commit larceny and the value of the property taken or intended to be taken is worth $950 or less, it is now “shoplifting,” but “[a]ny other entry into a commercial establishment with intent to commit larceny” continues to be second degree burglary. § 459.5(a). But entering a commercial establishment and taking another’s property without consent with the intent to permanently deprive the owner of the property is also theft. § 484(a). Because a single course of conduct may constitute shoplifting, theft, and burglary, the voters limited the prosecutor’s charging discretion in § 459.5(b), which provides that: “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.”

The Court of Appeal had concluded that a literal reading of the statute would lead to an absurd result. That is, if the evidence were clear that the defendant took the property, but the jury was uncertain whether the intent to steal was formed before entering a store, the defendant could get away with stealing the merchandise because the prosecutor was prohibited from charging him with theft. The statute requires the prosecutor to charge only shoplifting, and shoplifting requires the proof of formation of the intent to commit larceny before entering the commercial establishment. Therefore, the Court of Appeal concluded that a prosecutor could charge both shoplifting and theft in the alternative for theft of the same property.

But the Supreme Court rejected this conclusion. The statute expressly prohibits charging theft and shoplifting for taking the same property. That prohibition includes charging theft in the alternative. The Court opined that a trial court has a sua sponte duty to instruct the jury on any “uncharged” lesser included offense if there is substantial evidence from which a jury could conclude the defendant committed the lesser offense but not the charged offense. People v. Smith, 303 P.3d 368 (Cal. 2013). Petty theft is a lesser included offense of shoplifting because it requires the same proof as shoplifting minus the intent element. People v. Shockley, 314 P.3d 798 (Cal. 2013). If a prosecutor charged only shoplifting, but the evidence did not convince the jury that the intent to steal was formed before entering the store, the jury could acquit on that charge but convict on the uncharged offense of petty theft. Thus, the Supreme Court concluded that the Court of Appeal erred.

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People v. Lopez



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