People v. ColbertPeople v. Colbert
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.” (
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
Defendant was charged with four counts of second degree burglary, an alternative felony-misdemeanor (also known as a “wobbler“) (
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
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.” (
The Court of Appeal affirmed on the first ground only.4 The court held that when defendant entered the private offices
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
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. 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; see id. at p. 913.)
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 (Gonzales); see People v. Barry (1892) 94 Cal. 481, 483 (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
Proposition 47 changed the law by defining a new crime of misdemeanor shoplifting and, in effect, “carving out” this “lesser crime” from the “preexisting felony.” (People v. Martinez (2018) 4 Cal.5th 647, 651.) The statute provides that any act involving “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
Both parties in this case agree that defendant entered a “commercial establishment” when he first entered the stores from which he stole. Defendant argues that is the end of the story, because the shoplifting statute draws no distinction between entering a store with intent to steal property from areas open to the public and entering a private back office with intent to steal property therefrom. The Attorney General argues, and the Court of Appeal agreed, that the shoplifting statute applies to entries with intent to steal from commercial establishments open to the public during regular business hours only to the extent the establishments are open to the public during those hours. In the Attorney General‘s view, if a defendant enters a commercial establishment open during regular business hours, but then proceeds to enter an interior room that is off-limits to the public with intent to steal property there, the crime is punishable as burglary and not shoplifting.
B.
This question concerning the meaning of Proposition 47 is a matter of statutory interpretation, and we employ familiar principles to resolve it. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900–901.) We begin by examining the words of
The notion that our precedent resolves the question here is easily disposed of. Defendant points to our decision in Gonzales, in which we interpreted section 459.5 to apply to an entry into a commercial establishment with intent to commit forms of theft other than larceny, including theft by false pretenses. (Gonzales, supra, 2 Cal.5th at p. 862.) In so holding, we rejected the Attorney General‘s argument that it “would be absurd for the shoplifting statute to encompass any form of theft other than larceny of openly displayed merchandise” because, if it did, the statute “would require a person to be prosecuted for shoplifting even if he enters a commercial establishment to commit a theft from an area of the store closed to the public, ‘like a back office or a private locker room . . . .’ ” (Id. at p. 873.) Our rejection of the Attorney General‘s argument, however, was cabined to the issue before us. Without addressing the premise of the Attorney General‘s argument about the statute‘s application to back offices, we explained that section 459.5, by its text, is not limited to theft of openly displayed merchandise. While another statute, Penal Code section 490.5, prescribes penalties for “petty theft involving merchandise taken from a merchant‘s premises” (
Turning back to the statutory text, defendant points to section 459.5‘s unadorned reference to entering a “commercial establishment” during regular business hours to argue that the plain language of section 459.5 applies to his criminal conduct. He argues that the shoplifting crime was complete once he first entered the stores in question with intent to steal money from the private back offices; in his view, the later entry into these interior offices to steal the money has no legal significance other than supplying evidence that he entered the stores with an intent to steal.
We agree it is possible to read the text of section 459.5, in isolation, as broadly applying to an entry into a commercial establishment with intent to steal from a private back office or other off-limits interior room. In ordinary speech, as defendant emphasizes, we would generally refer to a private interior room as part of the overarching “commercial establishment.” And while intruding into a back office to steal an employee‘s personal belongings is no one‘s idea of “shoplifting,” that alone cannot be dispositive, as Gonzales makes clear. We there explained: “[S]ection 459.5 provides a specific definition of the term ‘shoplifting’ ” that clearly deviates in certain respects from the colloquial understanding of the term; where the two diverge, it is the statutory definition, not the colloquial understanding, that must control. (Gonzales, supra, 2 Cal.5th at p. 871; see id. at pp. 873–874.)
Still, defendant‘s proposed interpretation of section 459.5 is not clearly correct. While it may be more consistent with
The Attorney General‘s narrower reading has several points in its favor. It is certainly more consistent with the ordinary understanding of “shoplifting.” (Cf., e.g., Leocal v. Ashcroft (2004) 543 U.S. 1, 11 [resolving interpretive dispute about defined term by reference to the term‘s ordinary meaning].) But more importantly, the reading fits with the surrounding language of section 459.5. The statute limits shoplifting to those entries into a commercial establishment made “while that establishment is open during regular business hours.” (
And perhaps more importantly yet, this reading makes sense given the history of the burglary statute and its judicial construction. (See Gonzales, supra, 2 Cal.5th at p. 869 [interpreting section 459.5 in light of similar considerations].) The burglary statute, by its terms, applies both to entries to structures, including stores, and to entries to rooms within those structures. (
Applying the same set of principles, a long line of California cases have upheld burglary convictions based on entries with the requisite intent into interior rooms within larger structures, including stores and restaurants. (See, e.g., People v. Sparks, supra, 28 Cal.4th at pp. 87–88 [trial court correctly instructed jury that entry into victim‘s bedroom with intent to commit rape constituted burglary]; People v. Davis (1959) 175 Cal.App.2d 365 [burglary conviction may be based on entry into closed office within a service station]; People v. Gaytan (1940) 38 Cal.App.2d 83, 87 [burglary conviction may be
This history supports a reading of section 459.5 that distinguishes between initial entries into stores and subsequent entries into certain interior rooms. But that is not all; the history also lends support to the specific distinction we are asked here to adopt, between entering a store while it is open during regular business hours and entering an interior room within the store that is off-limits to the public. The reason for this particular distinction lies in the same general principle articulated by Blackstone and reflected in Young: Just as the common law of burglary was not prepared to punish a person who walked through an open door, neither was it prepared to punish a person who walked through a door at the express invitation of the owner or occupant. (See People v. Gauze, supra, 15 Cal.3d at pp. 713–714; LaFave, Substantive Criminal Law (3d ed. 2018) § 21.1(a), p. 269.) But the law was prepared to punish the person who exceeded the scope of his or her invitation by entering an internal room without consent. A person might be authorized to enter a building, but “[w]hen the authority granted was restricted to certain portions of the structure or times of day, there was a breaking“—and hence a burglary—“when the structure was opened in violation of these restrictions.” (LaFave, at p. 269; see 4 Blackstone, supra, at pp. 226–227 [explaining that servant commits burglary if he enters his master‘s chamber without authorization and with felonious design]; see also, e.g., State v. Rio (1951) 38 Wn.2d 446 [citing authorities for proposition that at common law burglary may be committed by house guest or invitee who, with the requisite intent, enters a room that he has no right to enter].) As translated to this context, the common law approach would
California law departed from this common law approach in certain respects in Barry, supra, 94 Cal. at page 483, which held that a customer who enters a public place with intent to steal can, in effect, consider himself uninvited. But our cases have nevertheless reaffirmed the continuing validity of the underlying principles. A burglary under Penal Code section 459 occurs when a defendant with the requisite intent enters a structure where he or she has no right to be, and a person has no right to be in a structure—or in a room within the structure (People v. Sparks, supra, 28 Cal.4th at pp. 81, 87)—without the effective consent of the owner or occupant. (See People v. Gauze, supra, 15 Cal.3d at p. 714.)
Because the whole point of section 459.5 is to redefine a class of burglary offenses as shoplifting, the history of the burglary statute and its judicial construction alone cannot be dispositive of the question here: whether an offense involving an entry into an off-limits room within a store remains punishable as burglary. The history does, however, leave us with two possible conclusions about the meaning of section 459.5. It is possible that section 459.5 does not speak more clearly to the problem of entries into off-limits interior rooms because it is designed to revoke the traditional distinction between structures into which a defendant has been invited and internal rooms to which he or she has not been invited. Alternatively, it is possible that section 459.5 does not speak
A primary purpose of the burglary law is ” ’ “to forestall the germination of a situation dangerous to personal safety” ’ ” by punishing entries into one of the structures listed in Penal Code section 459 with felonious intent. (People v. Garcia (2016) 62 Cal.4th 1116, 1138, quoting People v. Gauze, supra, 15 Cal.3d at p. 715.) Such unauthorized entries present ” ’ “the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.” ’ ” (Garcia, at p. 1138.) The burglary statute is thus designed “to protect against the increased risk to personal safety that attends the commission of a felony” in such locations, as well as “to prevent the invasion of an owner‘s or occupant‘s possessory interest in a space against ‘a person who has no right to be in the building.’ ” (Id. at p. 1125.)
In enacting the shoplifting statute as part of Proposition 47, the electorate signaled that these interests do not apply in the same way when a person intends to steal property in a place where he or she has been invited to peruse the goods and services that are on offer. Store owners and employees do not, of course, consent to the theft of property. But the core of the crime of burglary is not theft but physical intrusion, and owners and employees have every reason to expect that members of the public will enter where they have been invited.
In instituting reduced penalties for less serious theft offenses under Proposition 47, the electorate evinced no intent to alter the burglary law‘s protection against this sort of invasion of security and property interests.5 The ballot materials, which we may consider as part of our inquiry (People v. Mentch (2008) 45 Cal.4th 274, 282), described shoplifting simply as “a type of petty theft.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35.) The materials made no mention of either of the recognized harms of burglary: the element of intrusion and the accompanying risks to personal safety. Nothing in the ballot materials—much less the enacted text of the statute—provides any indication that the voters who passed Proposition 47 intended to roll back the law‘s protection for employees in off-limits interior rooms, such as private back offices, where they are likely to be “at their most vulnerable.” (People v. Garcia, supra, 62 Cal.4th at p. 1125.)
C.
In this case it is undisputed that defendant‘s burglary convictions were based on entries into back offices that were objectively identifiable as off-limits to the public, with an intent to steal therefrom. Had Proposition 47 been in effect at the time of defendant‘s offenses, it would have made no difference; he would still be guilty of burglary and not shoplifting. (See
The judgment of the Court of Appeal is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE , C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
TANGEMAN, J.*
* Associate Justice of the Court of Appeal, Second Appellate District, Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.