462 P.3d 499
Cal.2020Background
- Defendant Anthony Lopez exited Walmart with unpurchased merchandise valued at $496.37 after an asset-protection officer observed him place items in a bag and admit he had not paid.
- Prosecutor charged both felony shoplifting (Pen. Code § 459.5(a)) and theft/petty-theft-with-priors (§§ 484, 666); defendant did not object to the amended information.
- Jury convicted Lopez of petty theft but hung on the shoplifting count; the prosecution then dismissed the shoplifting count and the court found prior allegations true in a bench phase.
- On appeal Lopez argued the dual charging violated § 459.5(b), which provides that acts of shoplifting shall be charged as shoplifting and that one charged with shoplifting may not also be charged with theft of the same property.
- The Court of Appeal upheld the conviction reasoning § 459.5(b) would have allowed alternative pleading; the California Supreme Court granted review to resolve the proper scope of § 459.5(b).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lopez) | Held |
|---|---|---|---|
| Whether § 459.5(b) permits charging shoplifting and theft of the same property in the alternative | Permissible; alternative charging avoids unfair results when intent on entry is unclear | Prohibited: § 459.5(b) bars charging both shoplifting and theft of same property, even in the alternative | Prohibited: § 459.5(b) unambiguously forbids charging shoplifting and theft of the same property, even alternatively |
| Whether prosecutor may plead shoplifting with allegation that value ≤ $950 so petty theft is an uncharged lesser included offense under the accusatory pleading test | Yes; prosecutor can plead value ≤ $950 and petty theft becomes an uncharged lesser included offense | No; that would be an end-run around § 459.5(b) and improperly expand the accusatory pleading test | Yes: charging shoplifting with an allegation that value does not exceed $950 is permissible; petty theft may be an uncharged lesser included offense and the court must instruct on it if substantial evidence supports it; jury must acquit shoplifting before convicting of petty theft |
| Whether prosecutor may charge theft instead of shoplifting when there is probable cause for shoplifting | If evidence ambiguous, prosecutor could charge theft instead of shoplifting (or amend to theft) | Once shoplifting is charged, § 459.5(b) generally bars substituting theft; prosecution should not be allowed to evade the statute | General rule: prosecutor must charge shoplifting when there is probable cause for shoplifting. Exception: prosecutor may charge theft instead if she can articulate a theory, supported by evidence, under which defendant is guilty of theft but not shoplifting |
| Whether defendant was prejudiced / effect on conviction (IAC claim) | No prejudice because prosecutor could have amended to alternative or charged theft leading to same theft conviction | Counsel ineffective for failing to object to impermissible double charging; conviction should be reversed | Court rejected alternative-charging rationale below; reversed Court of Appeal and remanded for proceedings consistent with this interpretation (potential prejudice/IAC to be addressed on remand) |
Key Cases Cited
- People v. Gonzales, 2 Cal.5th 858 (discusses Proposition 47 purpose to reduce felonies for nonviolent offenses)
- People v. Valenzuela, 7 Cal.5th 415 (Prop 47 interpretation issues)
- People v. Colbert, 6 Cal.5th 596 (§ 459.5(b) limits charging discretion)
- People v. Reed, 38 Cal.4th 1224 (accusatory pleading test for lesser included offenses)
- People v. Smith, 57 Cal.4th 232 (trial court duty to instruct on uncharged lesser included offense when supported by evidence)
- People v. Breverman, 19 Cal.4th 142 (purpose of lesser included-offense instruction is accurate verdict)
- People v. Birks, 19 Cal.4th 108 (prohibits forcing an all-or-nothing choice on the jury)
- People v. Kurtzman, 46 Cal.3d 322 (must acquit charged offense before convicting lesser included offense)