People v. Gonzales
| Decision Date | 23 March 2017 |
| Docket Number | S231171 |
| Citation | 2 Cal.5th 858,216 Cal.Rptr.3d 285,392 P.3d 437 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Giovanni GONZALES, Defendant and Appellant. |
Richard A. Levy, Torrance, under appointment by the Supreme Court; and Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Stephen P. Lipson, Public Defender (Ventura), Michael C. McMahon, Chief Deputy Public Defender, and William M. Quest, Deputy Public Defender, for California Public Defenders Association and Public Defender of Ventura County as Amici Curiae on behalf of Defendant and Appellant.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Michael Pulos, Arlene A. Sevidal, Christen E. Somerville and Alastair Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
Bonnie M. Dumanis, District Attorney (San Diego), James E. Atkins and Brooke E. Tafreshi, Deputy District Attorneys, for San Diego County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.
In 2014, Proposition 47 created the new crime of "shoplifting," defined as entering an open commercial establishment during regular business hours with the intent to commit "larceny" of property worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute, which also applies to an entry with intent to commit "larceny" or any felony. (Pen. Code, § 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a ; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft. Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft. Thus, defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute. Defendant may properly petition for misdemeanor resentencing under Penal Code section 1170.18. We reverse the Court of Appeal's contrary judgment.
In December 2013, defendant Giovanni Gonzales visited his grandmother, Josefa Valencia, and stole her checkbook. Twice during that same week, he entered a bank and each time cashed one of her checks made out to him for $125. Valencia did not sign the checks or authorize defendant to cash them.
Defendant was charged with the felonies of second degree burglary and forgery.1 He pled guilty to burglary, the forgery count was dismissed, and he was placed on probation for three years. He subsequently admitted violating probation and probation was revoked and reinstated. When a second probation violation was alleged, defendant petitioned for recall of his sentence and resentencing under Penal Code section 1170.18. The trial court denied his petition and the Court of Appeal affirmed.2
In 2014, the electorate passed initiative measure Proposition 47, known as the Safe Neighborhoods and Schools Act (the Act), reducing penalties for certain theft and drug offenses by amending existing statutes. (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, pp. 70-74 (Voter Information Guide).) The Act also added several new provisions, including Penal Code 3 section 459.5, which created the crime of shoplifting. Subdivision (a) provides: Shoplifting is punishable as a misdemeanor unless the defendant has previously been convicted of a specified offense. (§ 459.5, subd. (a).) Section 459.5, subdivision (b) contains an explicit limitation on charging:
Section 1170.18 now permits a defendant serving a sentence for one of the enumerated theft or drug offenses to petition for resentencing under the new, more lenient, provisions.4 If the offense committed by an eligible defendant5 would have been a misdemeanor under the Act, resentencing is required unless "the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) A person who has already completed a felony sentence may petition to have his conviction designated a misdemeanor. (§ 1170.18, subds. (f), (g).)
Defendant argued that his conduct would have constituted shoplifting under section 459.5 because he entered a commercial establishment during regular business hours with intent to take less than $950. (§ 459.5, subd. (a).) The prosecution countered that defendant's conduct did not constitute shoplifting because he did not enter the bank with intent to commit larceny but, instead, to pass forged checks, which constituted a theft by false pretenses. This argument rests on a distinction between different types of theft.
"Britain's 18th century division of theft into the three separate crimes of larceny, false pretenses, and embezzlement made its way into the early criminal laws of the American states." (People v. Williams (2013) 57 Cal.4th 776, 784, 161 Cal.Rptr.3d 81, 305 P.3d 1241 (Williams ).) California's first Penal Code recognized these distinctions, containing separate provisions for each type of theft. Former section 484 defined larceny as "the felonious stealing, taking, carrying, leading, or driving away the personal property of another." (1872 Pen. Code, former § 484.) The crime of larceny derived from the common law and required both a taking without the property owner's consent and asportation of the property with the intent to permanently deprive the owner of possession.6 (People v. Davis (1998) 19 Cal.4th 301, 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165 ; Williams , at pp. 782-783, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) Grand larceny was a felony; petit larceny, a misdemeanor. (1872 Pen. Code, former §§ 487-490.)
Larceny was a crime against one's possession of property. By contrast, theft by false pretenses required that a defendant not merely take possession , but title as well. (Williams, supra, 57 Cal.4th at p. 784, 161 Cal.Rptr.3d 81, 305 P.3d 1241 ; see Ashley, supra, 42 Cal.2d at p. 258, 267 P.2d 271.) As originally enacted, section 532 applied, in part, to "[e]very person who knowingly and designedly, by false or fraudulent representation or pretenses, defrauds any other person of money or property...." (1872 Pen. Code, former § 532.) Finally, embezzlement involves "an initial, lawful possession of the victim's property, followed by its misappropriation." (Williams , at p. 784, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) Section 503, unchanged since the original Penal Code, defines embezzlement as "the fraudulent appropriation of property by a person to whom it has been intrusted."
The disaggregation of theft into different statutes created pleading challenges. Prosecutors had to plead the correct type of theft corresponding with the defendant's conduct, though "it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick" or "whether a defendant, clearly guilty of some theft offense, had committed embezzlement or larceny." (Williams, supra, 57 Cal.4th at p. 785, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) To address this difficulty, the Legislature amended section 484 in 1927 to define a general crime of "theft." Theft was defined expansively to include all the elements of larceny, false pretenses, and embezzlement.7 The Legislature also enacted section 490a, stating that "[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor." (Stats. 1927, ch. 619, § 7, p. 1047, italics added.)8 This provision reflected the fact that the definition of theft encompassed all three ways in which property could be unlawfully stolen.
(Ashley, supra, 42 Cal.2d at p. 258, 267 P.2d 271 ; see People v. Fewkes (1931) 214 Cal. 142, 149, 4 P.2d 538.) "The amendment to section 484... is designed not only to simplify procedure but also to relieve the courts from difficult questions arising from the contention that the evidence shows the commission of some other of these crimes than the one alleged in the indictment or information, a contention upon which defendants may escape just conviction solely because of the border line distinction existing between these various crimes." (People v. Myers (1929) 206 Cal. 480, 484, 275 P. 219 (Myers ).) "The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of...
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