1 Cal. App. 5th 404
Cal. Ct. App.2016Background
- In 2004 Michael Evan Fusting pleaded guilty to second-degree burglary (§ 459) for entering a commercial building with intent to sell a stolen surfboard.
- After Proposition 47 (Prop. 47) passed, Fusting petitioned under § 1170.18 to recall and resentence his felony burglary conviction to misdemeanor shoplifting (§ 459.5).
- The trial court denied the petition, concluding an intent to commit theft by false pretenses did not qualify as the "intent to commit larceny" required by § 459.5.
- Section 459.5 defines shoplifting as entering a commercial establishment during business hours with intent to commit larceny where the value is ≤ $950 and bars charging burglary for the same conduct.
- The appellate court reviewed whether the term "larceny" in § 459.5 should be read in light of prior statutory and case-law definitions (including § 490a’s substitution of "theft" for "larceny").
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "intent to commit larceny" in § 459.5 requires intent to commit common-law larceny (excluding theft by false pretenses) | People: § 459.5 uses "larceny," so shoplifting requires larcenous taking; voters meant ordinary/dictionary "shoplifting" (theft of openly displayed goods) | Fusting: interpret "larceny" consistent with burglary case law and § 490a; it means "theft," so theft by false pretenses suffices | Court: "larceny" in § 459.5 is read as "theft" under § 490a and prior case law; intent to commit theft by false pretenses satisfies § 459.5. Petition must be granted |
Key Cases Cited
- People v. Dingle, 174 Cal.App.3d 21 (discusses larceny interpretation to include various thefts)
- People v. Nguyen, 40 Cal.App.4th 28 (interprets "larceny" in burglary statute to include theft by false pretenses)
- People v. Parson, 44 Cal.4th 332 (theft/larceny related statutory interpretation)
- People v. Williams, 57 Cal.4th 776 (analyzes common-law distinctions among theft offenses in robbery context)
- People v. Rivera, 233 Cal.App.4th 1085 (statutory-construction principles and presumption of consistent interpretation)