People v. E.P. (In re E.P.)

• Citation: 35 Cal.App.5th 792,247 Cal.Rptr.3d 587
• Decision Date: 24 May 2019
• Docket Number: G054375
• Court: California Court of Appeals
• Parties: IN RE E.P., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. E.P., Defendant and Appellant.

35 Cal.App.5th 792

247 Cal.Rptr.3d 587

IN RE E.P., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.E.P., Defendant and Appellant.

G054375

Court of Appeal, Fourth District, Division 3, California.

Filed May 24, 2019

Erica Gambale, Irvine, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARONSON, ACTING P. J.

The juvenile court found minor E.P. committed second degree burglary ( Pen. Code, §§ 459, 460, subd. (b) [count 1]; all statutory references are to the Penal Code unless noted), possession of graffiti tools (§ 594.2, subd. (a) [count 2] ), receiving stolen property (§ 496, subd. (a) [counts 4-6] ), and illegal possession of an alcoholic beverage ( Bus. & Prof. Code, § 25662, subd. (a) [count 7] ). We initially concluded that the evidence was insufficient to show that E.P. committed burglary when he stole items from locker rooms in a public ice hockey facility because the prosecution failed to prove that E.P. did not commit the new crime of shoplifting, as defined in Proposition 47. Because E.P. was not charged with shoplifting, we also concluded there was no bar to charging him with receiving stolen property (counts 4-6).

After issuing our opinion, the California Supreme Court in People v. Colbert (2019) 6 Cal.5th 596, 242 Cal.Rptr.3d 665, 433 P.3d 536 ( Colbert ), held 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." ( Id. at p. 598, 242 Cal.Rptr.3d 665, 433 P.3d 536.) The high court transferred the matter to us with directions to vacate our decision and reconsider the cause in light of Colbert.

Colbert does not change our conclusion that the prosecution failed to prove E.P. committed burglary. The evidence showed the locker rooms of the public ice hockey facility were not "objectively identifiable as off-limits to the public." ( Colbert, supra , 6 Cal.5th at p. 598, 242 Cal.Rptr.3d 665, 433 P.3d 536.) Accordingly, we reverse the finding E.P. committed burglary, but affirm the findings he received stolen property and illegally possessed an alcoholic beverage.

I FACTUAL AND PROCEDURAL BACKGROUND

Anaheim ICE is a public ice hockey facility with two professional-sized ice rinks and a shop. Between the ice rinks are offices, referee locker rooms, and locker rooms for the players, who must pay to use the rink.

On December 22, 2015, between 10:00 and 11:00 p.m., a hockey referee working a game spotted E.P. and a companion lingering around the locker rooms. The pair walked in and out of the locker rooms several times.

Three players reported items missing from the locker room. One player stated someone had stolen his keys, cell phone, and wallet from his jacket, which he had placed on a locker room bench. A second player reported his pants, wallet, keys, and phone were missing from the bag he left in the locker room. A third player stated someone had taken his wallet, containing credit cards, an amusement park annual pass, and his cell phone from the pants he left on a locker room shelf.

Anaheim police officers responded promptly and detained three youths, including E.P., outside a closed fast food restaurant about a block and a half from the rink. E.P. consented to a search, and officers discovered the property stolen from the locker room.

Officer Olmedo arrested E.P., advised him of his Miranda rights and questioned him about the thefts. E.P. admitted possessing the spray paint can officers also found in his possession, explaining he was a tagger, but he initially denied involvement in the thefts. During a later conversation, E.P. admitted he went inside the facility to watch hockey with another "kid" he could not identify. This youth took "stuff" from the locker room and ran out the back of the facility. E.P. eventually admitted stealing a wallet, cell phones, a jersey, an alcohol bottle, and credit cards from the locker room.

At the close of evidence, E.P. moved to dismiss the burglary count under Welfare and Institutions Code, section 701.1, arguing that the prosecution failed to prove he had not committed shoplifting as defined in section 459.5.¹ He argued the prosecution failed to present evidence (1) the value of the property taken or intended to be taken was more than $ 950; (2) the locker room was not part of a commercial establishment; or (3) that he entered the locker room during nonbusiness hours. E.P. also argued the juvenile court must dismiss the receiving stolen property allegations (counts 4-6) because a person cannot be charged with shoplifting property and receiving the same stolen property under section 459.5. subdivision (b).

In August 2016, the juvenile court sustained the allegations of the petition. In rejecting E.P.'s motion to dismiss the burglary charge, the court concluded the ice rink's locker rooms were not part of the commercial establishment and the crime of shoplifting covered thefts from the business, not from private citizens. Consequently, the court found true the allegations in the petition against E.P., declared him a ward of the court, and placed him on probation.

II DISCUSSION

A. The Prosecution's Burden of Proof on a Burglary Charge Following Proposition 47

In November 2014, the electorate enacted Proposition 47, "the Safe Neighborhoods and Schools Act," which amended existing statutes to reduce penalties for certain theft and drug offenses, and added several new provisions. Per its preamble, the stated purpose was " ‘to ensure that prison spending is focused on violent and serious offenses’ " and to " ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.’ " ( People v. Romanowski (2017) 2 Cal.5th 903, 909, 215 Cal.Rptr.3d 758, 391 P.3d 633.) "Proposition 47 directs that the ‘act shall be broadly construed to accomplish its purposes.’ " ( People v. Jimenez (2018) 22 Cal.App.5th 1282, 1287, 232 Cal.Rptr.3d 386.)

To accomplish its goal of requiring misdemeanors for nonserious, nonviolent crimes like petty theft, Proposition 47 created a new misdemeanor crime of "shoplifting," which covers conduct that previously would have been classified as a burglary. ( In re J.L. (2015) 242 Cal.App.4th 1108, 1112, 195 Cal.Rptr.3d 482. ( J.L. ).) Codified in section 459.5, this new crime is defined in subdivision (a) as follows: "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." Subdivision (b) expressly limits the prosecutor's charging discretion: "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."

Although the Attorney General acknowledges a person cannot be charged with and convicted of burglary when he or she actually committed shoplifting, he argues that a person who commits shoplifting may simultaneously commit burglary. Section 459 provides that a "person who enters any ... room, ... with intent to commit grand or petit larceny or any felony is guilty of burglary." The Attorney General contends Proposition 47 "did not amend section 459's definition of burglary itself to add any additional elements." Consequently, to prove second degree burglary here, the Attorney General concludes the prosecution only needed to prove the elements of burglary under section 459. In other words, it did not have to disprove any elements unique to shoplifting, such as, for example, "the intended theft be of property valued at more than $ 950." We disagree.

"Proposition 47 changed the law [of burglary] by defining a new crime of misdemeanor shoplifting and, in effect, ‘carving out’ this ‘lesser crime’ from the ‘preexisting felony.’ [Citation.]" ( Colbert , supra , 6 Cal.5th at p. 602, 242 Cal.Rptr.3d 665, 433 P.3d 536.) Stated differently, the "new crime of shoplifting ... displaces the prior felony of second degree burglary." ( People v. Chen (2016) 245 Cal.App.4th 322, 324, 199 Cal.Rptr.3d 375.) In defining shoplifting "[n]otwithstanding section 459," section 459.5 amended section 459 to exclude certain wrongful conduct which previously was second degree burglary. Thus, under the facts of this case, E.P. could not simultaneously commit shoplifting and second degree burglary.²

A contrary interpretation would run afoul of the express language of section 459.5, subdivision (a). If shoplifting is coextensive with second degree burglary, there would be no need for section 459.5 to state that "[a]ny other entry into a commercial establishment with intent to commit larceny is burglary," as that provision would be superfluous and redundant. (See Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 114, 172 Cal.Rptr. 194, 624 P.2d 244 ["Wherever reasonable, interpretations which produce internal harmony, avoid redundancy, and accord significance to each word and phrase are preferred."].)

Because a person cannot commit burglary if he actually committed shoplifting, a prosecutor who wishes to convict a defendant of burglary must prove the defendant did not commit shoplifting. (See Evid. Code, § 500 ["Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Italics added) ]; Evid. Code, § 501 [...