People v. Colbert

Decision Date24 January 2019
Docket NumberS238954
Citation6 Cal.5th 596,433 P.3d 536,242 Cal.Rptr.3d 665
CourtCalifornia Supreme Court
Parties The PEOPLE, Plaintiff and Respondent, v. Mark Anthony COLBERT, Defendant and Appellant.

Kimberly Taylor, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, René A. Chacón, Seth K. Schalit and Victoria Ratnikova, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Kruger, J.

In approving Proposition 47, the 2014 voter initiative that reclassified certain theft-related and drug-related felonies as misdemeanors, voters created a new misdemeanor offense called "shoplifting." ( Pen. Code, § 459.5.) Shoplifting is defined as the act of entering a commercial establishment with intent to steal property while the establishment is open during regular business hours, where the value of the property taken or intended to be taken is $950 or less—an act that had formerly been punishable as felony burglary. (Ibid. ; see id. , § 459.) This case presents a question concerning the line separating shoplifting from burglary: If a person enters a store during regular business hours but then proceeds to a private back office with intent to steal therefrom, which crime has he or she committed? We conclude that entering an interior room that is objectively identifiable as off-limits to the public with intent to steal therefrom is not shoplifting, but instead remains punishable as burglary.

I.

On four separate occasions in 1996 and 1997, defendant Mark Anthony Colbert, acting with an accomplice, stole money from the back offices of various convenience stores and a gas station. On each occasion, defendant and his accomplice employed the same modus operandi. They entered the stores during regular business hours, and while one of them distracted the store clerk by purchasing or redeeming lottery tickets, the other either slipped or broke into the back offices to steal money he found there.

Defendant was charged with four counts of second degree burglary, an alternative felony-misdemeanor (also known as a "wobbler") ( Pen. Code, §§ 459, 460, subd. (b) ). For the first three counts, the People alleged that defendant and his accomplice took, respectively, $300, $318, and $3,000 in cash; no money was taken in count 4, because the accomplice was confronted by an employee while in the back office. A jury found defendant guilty and he was sentenced to an aggregate prison term of two years and eight months, to run consecutively to a six-year prison term for an unrelated robbery.

In 2014, California voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which reclassified as misdemeanors certain drug-related and theft-related offenses that had previously been classified as felonies or wobblers. As relevant here, Proposition 47 added a section to the Penal Code creating a new offense of misdemeanor shoplifting. Section 459.5, subdivision (a) provides, in pertinent part: "Notwithstanding Section 459 [the burglary statute], 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." With certain exceptions not relevant here, the offense is punishable as a misdemeanor. ( Pen. Code, § 459.5, subd. (a).)1 Subdivision (b) limits a prosecutor’s discretion in charging: "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." The effect of the provision is to reclassify as misdemeanors certain crimes that were formerly punishable as felony burglary.

Proposition 47 also created a mechanism for extending its benefits to criminal defendants who, like defendant in this case, had been sentenced before the initiative’s passage. As relevant here, Penal Code section 1170.18, subdivision (f) provides: "A person who has completed his or her sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." If the offender meets the statutory criteria, "the court shall designate the felony offense or offenses as a misdemeanor." ( Id. , § 1170.18, subd. (g).)2

In 2015, defendant petitioned the superior court to redesignate two of his four felony burglary convictions as shoplifting misdemeanors under Penal Code section 1170.18, subdivision (f). Defendant failed to specify which two convictions, precisely, he sought to redesignate, but the omission made no difference; the trial court denied the petition on the ground that none of his burglary convictions was eligible for redesignation in any event. The court listed three grounds for its conclusion: (1) the "record reflects that each offense was based upon entry into a private area office area [sic ] and not a commercial establishment that was open during business hours"; (2) the amount taken in count 3 exceeded the statutory maximum of $9503 ; and (3) defendant employed the same modus operandi in all counts and therefore the theft of more than $3,000 in count 3 "strongly suggests that the amount intended to be taken in each case exceeded $950."

The Court of Appeal affirmed on the first ground only.4 The court held that when defendant entered the private offices at issue, he had exited the part of the "commercial establishment" covered by Penal Code section 459.5 ( section 459.5 ) and entered a "discrete area where [his] thefts could not be considered shoplifting." The court reasoned that the term " ‘commercial establishment’ " generally refers to an establishment that is " ‘primarily engaged in commerce, that is, the buying and selling of goods or services.’ " The court concluded that the back offices did not meet this description; by contrast to the areas in which the general public is invited to peruse the goods on display, the back offices were "not areas in which goods were bought and sold" but were rather "areas off-limits to the general public." Defendant’s sole intent, the court observed, was to steal from these private rooms; "otherwise he and his accomplice would have remained in the area where ... goods were displayed rather than intruding into the private areas where the employees were likely to keep their personal belongings, such as purses and wallets, and where the business was likely to store larger amounts of cash."

Justice Rushing dissented. In his view, the statute’s plain language compels the conclusion that defendant committed shoplifting by entering the stores with intent to commit larceny. He opined that nonpublic areas form part of the "commercial establishment" covered by the shoplifting statute and thus disagreed with the majority that defendant exited the establishment by venturing into a nonpublic interior room.

As the dissenting opinion observed, the majority opinion created a conflict with another Proposition 47 case, People v. Hallam (2016) 3 Cal.App.5th 905, 207 Cal.Rptr.3d 812. In that case, the defendant had been convicted of second degree burglary after he entered a computer store through a back door and stole an air compressor from an employee restroom. (Although the defendant had previously used the restroom with the permission of store employees, he later returned, uninvited.) The Court of Appeal held the defendant’s conduct constituted shoplifting under section 459.5 and the trial court therefore should have granted the defendant’s petition to redesignate the burglary conviction as a misdemeanor. ( Hallam , at p. 908, 207 Cal.Rptr.3d 812 ; see id. at p. 913, 207 Cal.Rptr.3d 812.)

We granted defendant’s petition for review to resolve the conflict about the application of section 459.5 to offenses involving entries into interior rooms that are off-limits to the public with intent to steal therefrom.

II.
A.

For more than a century before Proposition 47, entry into a store with intent to steal was understood to constitute burglary under California law, regardless of whether the defendant entered the store during its regular business hours. ( People v. Gonzales (2017) 2 Cal.5th 858, 872, 216 Cal.Rptr.3d 285, 392 P.3d 437 ( Gonzales ); see People v. Barry (1892) 94 Cal. 481, 483, 29 P. 1026 ( Barry ).) The reasons for this understanding lie in the early history of California’s burglary law. At common law, the crime of burglary had been understood to require (among other things) a breaking and entering with intent to commit larceny or any felony. When the California Legislature enacted the present-day burglary statute in 1872, however, it dispensed with the common law requirement of a breaking, instead defining burglary simply as entry into a specified structure (including a "store"), a room, or a vehicle with intent to commit larceny or any felony. ( Pen. Code, § 459 ; see People v. Gauze (1975) 15 Cal.3d 709, 713, 125 Cal.Rptr. 773, 542 P.2d 1365.) Of course, as this court would later confirm, the burglary statute did preserve the basic principle underlying the common law breaking requirement: "that in order for burglary to occur, ‘The entry must be without consent .’ " ( Gauze , at p. 713, 125 Cal.Rptr. 773, 542 P.2d 1365 ; see id . at pp. 713–714, 125 Cal.Rptr. 773, 542 P.2d 1365 [" ‘If the possessor actually invites the defendant, or actively assists in the entrance, e.g., by opening a door, there is no burglary.’ "].) But in Barry , at page 483, 29 P. 1026, this court...

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